Coulon v Adams [2022] QDC 291

DISTRICT COURT OF QUEENSLAND CITATION: Coulon v Adams [2022] QDC 291 PARTIES: MARY COULON (Plaintiff) v FELICITY ADAMS (Defendant) FILE NO/S: 3338/2020 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court of Queensland DELIVERED ON: 19 December 2022 DELIVERED AT: Brisbane HEARING DATE: 7 – 9 June & 12 December 2022 JUDGE: Sheridan DCJ ORDER: The claim is dismissed. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LIABILITIES IN TORT – GENERAL LIABILITY – where plaintiff had a colonoscopy performed by the defendant – where the plaintiff subsequently had a splenectomy – where plaintiff alleges medical negligence against the defendant – where the defendant admits a duty of care – whether the conduct of the defendant breached the duty – whether the fact of the injury was evidence of a breach of the duty DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – METHOD OF ASSESSMENT GENERALLY – where the plaintiff subsequently to the colonoscopy had a splenectomy – where the plaintiff claims both physical and psychological damage – where the plaintiff had a history of severe health issues, both physical and psychological – where quantum of damages in dispute – whether the assessment of general damages falls within the injury scale value of item 80 or 81 and where within those items – whether the assessment of special damages should include allowance for attendance on doctors, pharmaceuticals, travel and psychological counselling -- 1 of 21 -- 2 LEGISLATION: Civil Liability Act 2003 (Qld) Civil Liability Regulation 2014 (Qld) CASES: Breen v Larkin [2003] QCA 549; [2002] QSC 107 Morris v Zanki (1997) 18 WAR 260 National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569 Redding v Lee (1983) 151 CLR 117 Schellengerg v Tunnel Holdings Pty Ltd (1999) 200 CLR 121 State Government Insurance Commission v Hitchcock (Supreme Court of Western Australia, Full Court, 11 March 1997, unreported) COUNSEL: D Steiner for the plaintiff D Atkinson KC with A Luchich for the defendant SOLICITORS: Gerard Malouf & Partners for the plaintiff Avant Law for the defendant Introduction [1] Mrs Mary Coulon claims damages for personal injury suffered as a consequence of an operation by Dr Felicity Adams on 7 March 2018. Both liability and quantum are in issue. [2] For the majority of her life, Mrs Coulon had suffered from issues of constipation. Prior to the operation, Mrs Coulon began to experience nausea and bright red rectal bleeding. On 15 February 2018, Mrs Coulon attended upon Dr Adams. It was decided that based on those symptoms an elective colonoscopy should be performed. [3] The colonoscopy was performed on 7 March 2018. Dr Adams found this difficult due to looping with a redundant colon. She was unable to proceed past the distal ascending colon. Mrs Coulon was discharged that day. [4] The next day her husband reported to the hospital that Mrs Coulon was unwell and in a lot of pain. He was advised to attend the hospital. Mrs Coulon attended the hospital, and a CT scan was performed. This showed a large ruptured subcapsular splenic haematoma. Mrs Coulon was sent to the operating theatre and her spleen was removed. [5] The consequence of the removal of the spleen is that Mrs Coulon requires oral antibiotics for the rest of her life. Mrs Coulon alleges a number of other sequelae. Liability [6] In paragraph 20 of the statement of claim, Mrs Coulon alleges that Dr Adams was negligent in the following ways: (a) Failing to manipulate the colonoscope correctly; (b) Using excessive force; and (c) Failing to exercise due care and skill. -- 2 of 21 -- 3 [7] The preceding paragraphs of the statement of claim expressed the duty of care to be as follows: “17. At all material times, the defendant owed a duty of care to the plaintiff to perform the colonoscopy with reasonable clinical practice. 18. At all material times, the Defendant owed the Plaintiff a duty of care to exercise reasonable care and skill during the procedure and ensure reasonable precautions were taken to avoid foreseeable risks of harm. 19. Such duty extended to ensuring the colonoscope was appropriately manipulated to avoid damage including splenic injury.” [8] Dr Goodman from Sydney was called to give evidence on behalf of Mrs Coulon. His evidence was given before Dr Adams and he did not have any written statement by Dr Adams as to the procedure; apart from a very short report. Associate Professor Dr Hourigan was called to give evidence on behalf of Dr Adams. He similarly did not have a statement from Dr Adams about the procedure, nor was he present when she gave evidence explaining what she did. The defence had reports from a general surgeon (Dr Ghusn) which were provided to Mrs Coulon and which were the basis for comments by Dr Goodman. Ultimately, Dr Ghusn was not available on the day he was due to be called to give evidence and the defendant opted to rely on the evidence of Dr Hourigan and the reports of Dr Ghusn were withdrawn as part of the evidence. Failure to Warn [9] No particulars were sought or given as to the last allegation, but clearly it related to the procedure itself. [10] As can be seen from the pleading, no allegation was made that Dr Adams failed to warn Mrs Coulon of the risks of the operation. [11] At the commencement of the trial, after the opening of the evidence for Mrs Coulon, counsel for Dr Adams objected to evidence being led on the subject, other than perhaps as to credit and as part of the res gestae. Counsel for Mrs Coulon accepted that no allegation was made for failing to warn. [12] Despite that promising beginning, evidence was led from Mrs Coulon as to what was said by Dr Adams in relation to the risks. Dr Adams gave evidence on the subject and the consent form was put into evidence. Counsel for Mrs Coulon delivered written submissions on the subject; which, unfortunately, was agreed to be done on the basis of an exchange of submissions. That meant counsel for the defendant did not address the plaintiff’s submissions on the topic. Counsel were provided an opportunity to make further oral submissions, in light of the concessions made by counsel for the plaintiff at the beginning of the trial and the subsequent approach taken in the written submissions. In making his oral submissions, counsel for the plaintiff confirmed that they did not and could not allege there was a failure to warn. That concession does not alter the result on this issue. [13] In his written submissions, counsel for Mrs Coulon referred to and relied on s 21 of the Civil Liability Act 2003 (Qld). He submitted that this created a proactive and -- 3 of 21 -- 4 reactive duty of a doctor to provide information to a patient which a reasonable person in the plaintiff’s position would require to enable the person to make an informed decision about whether to undergo the treatment and information which the doctor knows or ought reasonably to know wants to be given. [14] Counsel for Mrs Coulon submitted that Dr Adams did not warn Mrs Coulon that an injury to her spleen was a risk of the procedure as required by s 21. This submission was said to be based on the oral testimony of Mrs Coulon, the general nature of the consent form signed which did not refer to this risk, the absence of a written consent form like that offered by Queensland Health to its patients and the information provided on the web page of Dr Adams which did not refer to this risk. [15] It is sensible to begin with the legislative provision. Section 21(1) provides as follows: “A doctor does not breach a duty owed to a patient to warn of risk, before the patient undergoes any medical treatment (or at the time of being given medical advice) that will involve a risk of personal injury to the patient, unless the doctor at that time fails to give or arrange to be given to the patient the following information about the risk— (a) information that a reasonable person in the patient’s position would, in the circumstances, require to enable the person to make a reasonably informed decision about whether to undergo the treatment or follow the advice; (b) information that the doctor knows or ought reasonably to know the patient wants to be given before making the decision about whether to undergo the treatment or follow the advice.” [16] It accordingly does not create an obligation. It simply sets out the content of the duty; implicitly when it applies. It commences with the proposition that a doctor does not breach a duty owed to a patient to warn of a risk unless the doctor fails to give or arranges to be given the particular information referred to in the section. [17] Mrs Coulon could not remember what advice she was given as to the risks but did complain in her evidence that she was not advised that there was a risk of her spleen being removed. Mrs Coulon gave evidence of signing a consent form. The procedure was not conducted in a public hospital, so the form created by Queensland Health was not used. The signed form merely stated: “I understand the procedure/treatment carries some risk and complications may occur.” [18] Dr Adams gave evidence, however, that she explained to Mrs Coulon that there was a risk of emergency surgery either from damage to the wall of the bowel or putting a hole in it or damage to something else, like the spleen. Dr Adams explained that she was careful to give warnings of the risks of the operations she performed and that she did it as a matter of course. -- 4 of 21 -- 5 [19] The evidence of Dr Adams was delivered in a careful manner, and I accept that she gave Mrs Coulon a warning as to the risks. [20] Even if I had found otherwise, I do not consider that it would have made any difference to the result. Mrs Coulon did not give evidence of what she would have done if the warning had been given and, even if she had said she would have done something different, care has to be taken with accepting such evidence. In any event, I do not consider that it would have changed the mind of Mrs Coulon as to the desirability of the procedure. Although the experts accepted that there was a risk, albeit a rare one, all of them accepted that the procedure was appropriate, and, no doubt, if asked, would have advised Mrs Coulon to undergo it. [21] Although admitted into evidence was a standard form from Queensland Health warning of this specific risk, there was no evidence in support of the proposition that it was negligent not to give a warning. Dr Goodman, who gave evidence for Mrs Coulon, did not consider it necessary to have the risk stated on the consent form, as the event was rare. [22] Finally, there remains the issue of the pleading. Not only was the alleged breach confined in the way already quoted, but the duty of care was equally confined to the procedure itself; not any event prior to it. [23] In the end, I accept the evidence of Dr Adams that she did give to Mrs Coulon an appropriate warning as to the risks. I accept, in any event, the evidence of Dr Goodman that it was not negligent not to give the warning. Further, I accept that even if a warning had been given, it would not have changed the mind of Mrs Coulon. In addition, I also accept that I could not make any finding of liability in this respect, even if the position were otherwise, as no allegation relating to the warning was made in the pleading, nor was the trial permitted to be run on the basis that such a finding was open to the court. Failure to Consider [24] In the written submissions, counsel also submitted that a medical practitioner, acting at an acceptable standard, should have considered referring Mrs Coulon to a more experienced endoscopist or recommending less invasive procedures. This similarly was not pleaded. [25] In making oral submissions, counsel for the plaintiff considered that the issue was sufficiently raised on the pleadings; arguing rather that it fell within the general breach, “failing to exercise due care and skill”, as pleaded in paragraph 20(c) of the statement of claim. [26] Given that position, there was nevertheless no evidence from any of the experts called that Dr Adams should have considered sending Mrs Coulon to a more experienced endoscopist or recommending less invasive procedures. Dr Goodman said, in oral evidence, that he imagined that any complication was more likely in the hands of a less experienced colonoscopist. That statement was not contained in any of his reports and was made during the course of an indulgence granted to counsel for Mrs Coulon to ask additional questions of Dr Goodman in chief, arising from the late delivery of a report from Dr Hourigan. His evidence did not go so far as to suggest that by not taking any steps to involve a more experienced colonoscopist, Dr Adams -- 5 of 21 -- 6 acted in a way that was not widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice; the test referred to in s 22(1) of the Civil Liability Act 2003 (Qld). [27] Further, attached to the 22 April 2022 report was an article that said: “Many of the splenic injuries occurred in apparently uncomplicated, easy colonoscopies performed by experienced endoscopists, and often there are no risk factors, biopsy, or polypectomy in those cases…It seemed that the complication rate was related to neither the level of experience nor the number of colonoscopies performed.”1 [28] In her evidence, in disagreeing that it could be said more serious adverse events occur when the endoscopist is of a younger age and more inexperienced, Dr Adams adopted the observations in the article. [29] Dr Hourigan gave evidence that very experienced persons might still sustain this type of adverse effect. [30] There is no basis for the allegation. Substantive Issue in Dispute [31] The substantive issue in the proceeding was whether the colonoscope had been manipulated correctly and without excessive force. Dr Adams gave evidence as to the procedure conducted by her. Dr Adams [32] Dr Adams explained that after the anaesthetic had been administered, she commenced the procedure by manual examination of the rectum and then insertion of a standard adult Olympus colonoscope which was 1.65 metres in length. Dr Adams said that it became apparent that Mrs Coulon did have a tortuous and longer or redundant bowel. She used gas and air to open up the lumen of the bowel so she could see the opening. When the lumen was open Dr Adams went along carefully with the colonoscope. Dr Adams said she encountered looping, as she said in her report, but picked that up early and was able to rectify it quickly by withdrawing the instrument and applying some torque or rotational force and straightening the colonoscope. [33] Dr Adams said that because of the twists and length of the bowel it was slow going. Dr Adams explained that because of the looping, it was “a little bit two steps forward …. [and] half a step back.” Dr Adams said that when she was roughly halfway around the bowel in the transverse colon, she decided because of the length of the bowel and the twists, that she ought to change to a longer colonoscope. She withdrew the colonoscope carefully the entire way out and started again with a two-metre long colonoscope. She said that she used the same methods to try and avoid the loops and make her way around. Dr Adams said that when she got to the right colon, she felt she was not making progress and so decided to abort the procedure. She said she withdrew the colonoscope, carefully inspecting the bowel for abnormalities like 1 Jennifer Fong Ha and David Minchin, ‘Splenic Injury in colonoscopy: A review’ (2009) 7 International Journal of Surgery 424 – 427. -- 6 of 21 -- 7 polyps or tumours. She identified a small polyp in the sigmoid colon and removed it. She explained that the procedure was relatively uneventful, and she was comfortable with how it proceeded. Dr Goodman [34] Dr Goodman was called in support of the claim by Mrs Coulon on these issues. He provided five short reports; two of which responded to expert reports commissioned on behalf of Dr Adams. [35] Dr Goodman is a General and Gastrointestinal Surgeon with thirty-five years of experience in specialist practice. He is a Fellow of the Royal College of Surgeons in England and the Royal Australasian College of Surgeons. He has completed a Clinical Fellowship in Surgical Oncology and Solid Tumour Chemotherapy at Rosewell Park Memorial Institute in Buffalo, New York. He has run a registered endoscopy clinic and describes himself as having “vast experience in gastrointestinal endoscopy and surgery, and the investigation and management of gastrointestinal symptoms”. [36] Dr Goodman had just retired. He had of recent times had conditions placed on his registration. [37] The first report by Dr Goodman dated 26 September 2018 consisted of a very brief history of the event based upon the surgery notes and an explanation of the procedure, and answers to three questions. [38] In the report, Dr Goodman responded to the question, “Is it reasonable clinical practice to allow the spleen to rupture during this procedure?”, by stating, “No. Splenic injury during colonoscopy is rare and reported as being less than 0.01%.” He went on further to say that: “…splenic injury during colonoscopy is very rare and therefore, on the balance of probabilities, this should not have occurred, and the patient would have had a better outcome.” [39] The next report dated 23 December 2019, was written in response to a report of Dr Ghusn dated 1 September 2019. While he agreed with Dr Ghusn that “splenic injury is a recognised, but rare, complication of colonoscopy,” Dr Goodman added that “this does not justify its occurrence, and I have no reason to alter my previously stated opinion that, on the balance of probabilities, this should not have happened.” [40] In a very short report dated 23 November 2020, Dr Goodman sought to clarify the statement made in his previous report, saying: “However, when this [splenic injury] does occur, I believe that it is always due to inappropriate manipulation of the colonoscope. When a colonoscopy is carried out correctly splenic injuries do not occur. An analogous situation would be crashing one’s car whilst texting on one’s telephone: a well-recognised scenario, but always negligent.” [41] In a further report dated 22 April 2022, Dr Goodman repeated his previous answers that it is not reasonable practice to allow the spleen to rupture during the completion -- 7 of 21 -- 8 of a colonoscopy as this is reported to occur at a rate less than 0.01% and, on the balance of probabilities, it should not have occurred, and the patient would have had a better outcome. He also stated that “the fact that a particular complication is recognised as occurring and has been documented previously, in no way makes this complication acceptable and unavoidable.” Dr Goodman added: “Splenic rupture can be avoided by good colonoscopic technique, in particular, avoiding producing loops in the colonoscope and avoiding excessive force. In Ms Coulon’s situation, the endoscopy report notes the development of loops to the point where an even longer colonoscope was introduced, likely to have produced even larger loops as, even with the longer instrument, the caecum could not be reached.” [42] His last report dated 23 May 2022 responded to the report of Dr Hourigan dated 16 May 2022. He regarded Dr Hourigan’s statement that, in his experience, many more cases of splenic injury are being identified as unsubstantiated and his statement that many of his colleagues had experienced this complication without any abnormal manipulation or use of excessive force as unsubstantiated and hyperbolic. In addressing these statements, Dr Goodman said that: “Having carried out very large numbers of colonoscopies over more than 40 years, and never experiencing a splenic injury, nor having become aware of any of my colleagues causing such an injury, I find it difficult to imagine that Prof Hourigan could substantiate that he has so many unfortunate colleagues, let alone the supposed fact that no abnormal manipulation or use of excessive force had occurred.” [43] Dr Goodman concluded this report by stating: “I continue to believe that splenic injury during a colonoscopy is an exceedingly rare complication and is the result of abnormal manipulation of the instrument under the given circumstances. I have no reason to alter my previously stated opinion.” [44] Counsel for Mrs Coulon was permitted to ask further questions of Dr Goodman which extended the criticism made by Dr Goodman of Dr Adams. Unfortunately, it did not add anything to his previous expert opinion and gave the appearance of him finding criticism for the sake of it. [45] Dr Goodman stated that there was no evidence in the operation report of Dr Adams that the defendant used any techniques to prevent looping from occurring. He said the report was very brief and only indicated that she used a longer scope in the procedure, which he does not believe would have helped to prevent looping from occurring. [46] Dr Goodman said that the length of the procedure, being 50 minutes, is an excessive time to take and is also a “very unusually long period of time just to insert the instrument.” He notes that one polyp was removed during the procedure and that this could have contributed to the long procedure time. [47] Dr Goodman said that it was not usually the case that patients, following an endoscopic procedure, are in so much pain that they need the assistance of a wheelchair to leave the facility. He further stated that if they are experiencing difficulty after the procedure so that they needed a wheelchair, one would need to -- 8 of 21 -- 9 understand why they were experiencing difficulty. Dr Goodman gave two examples. The first was if the patient had received excessive sedation and they were not awake, it might be felt that they are not a danger and, to help get them to their transport, they require a wheelchair. But if they are in such severe pain that they can’t get up and walk, they should at least be observed for a considerably longer period of time, to the point where their pain is not so severe that they can’t get up and walk. [48] Mrs Coulon did give evidence that when she woke up from the colonoscopy, she was in a wheelchair in the emergency department as her husband had parked the car outside. She says that she had no recollection of waking up in recovery. She says that whilst she was sitting in the wheelchair, she told her husband that she had a bad stomach-ache and when she left the hospital, she felt nauseous pain. She said she told the nurse who then told her husband “to put a pillow up between my tummy when I got into bed” and “it was probably wind”. [49] Missing from this account is how Mrs Coulon got into the wheelchair, or that she could not walk. None of this suggests that the hospital did not take proper care for Mrs Coulon. This has all the appearance of Dr Goodman adopting a view of the circumstances which was not justified by the evidence. [50] Dr Goodman said that he believed that when splenic injury occurs, it is always due to inappropriate manipulation of the colonoscope. He said that he believed this because the incidence of splenic injury is “very minute”. [51] Dr Goodman attributed the cause of the splenic injury in the current proceedings to the fact that the defendant was “either pushing too hard or pulling too hard.” He explained this as “pushing too hard when a loop is forming or pulling too hard in a desperate measure to try and straighten the instrument to try and get the loops out.” Dr Goodman went on to say that the force used during a colonoscopy is a judgment call that is made by an endoscopist and is affected by their care, skill, and experience. [52] During cross-examination, Dr Goodman emphasised that when splenic injury occurs, it is always the fault of the surgeon or endoscopist. Dr Goodman admitted that the only evidence with which he relied upon to make this statement was his own experience and that of his colleagues and that he could not provide any literature or direct evidence for this statement. Dr Goodman could not provide evidence to support the proposition that every time splenic injury happened it is caused by the clinician not exercising reasonable care. [53] Dr Goodman included in his 22 April 2022 report reference to a journal article “Splenic injury in colonoscopy: A review” by Jennifer Fong Ha and David Minchin.2 [54] In cross-examination, Dr Goodman was taken to a paragraph in the article, which stated: “It may be under-reported due to reluctance to publish morbidity information, publication bias, absence of specific code for this complication and the fact that the majority of these cases may remain undetected.” 2 Jennifer Fong Ha and David Minchin, ‘Splenic Injury in colonoscopy: A review’ (2009) 7 International Journal of Surgery 424 – 427. -- 9 of 21 -- 10 [55] As to this, Dr Goodman stated that he did not have access to the full article and said that he had not read the article from start to finish, only the conclusions of the article. [56] Dr Goodman was also taken to two paragraphs in the article. The first stated: “Many of the splenic injuries occurred in apparently uncomplicated, easy colonoscopies performed by experienced endoscopists, and often there are no risk factors, biopsy, or polypectomy in those cases ... it seemed that the complication rate was related to neither the level of experience nor the number of colonoscopies performed.” [57] The next stated: “There are several explanations for splenic trauma during colonoscopy and the mechanism is yet to be elucidated.” [58] Dr Goodman did not adopt either view, but he had referred to the article in support of a statement in his report dated 22 April 2022 as to the mortality rate in splenic rupture. In so doing, he had attached the article and had not sought to limit in his report any reliance on its contents. None of the paragraphs quoted supports the view of Dr Goodman and are contrary to it. Associate Professor Hourigan [59] Dr Adams called an Interventional Gastroenterologist and an Associate Professor of Medicine at the University of Queensland, Associate Professor Hourigan. Dr Hourigan presently holds the position of the Clinical Director of Endoscopy at Princess Alexandra Hospital. Dr Hourigan has over 20 years of experience in diagnostic and interventional endoscopy in the tertiary/quaternary hospital setting. [60] In his report dated 16 May 2022, Dr Hourigan commented that the incidence of splenic injury is much more common than published figures and said that not all cases of splenic trauma are captured by published data. He went on to say that: “Many of my colleagues, who may claim that they have never performed a colonoscopy associated with splenic injury, may have unknowingly done so; the patient may have only experienced mild to moderate symptoms of the splenic haematoma and then settled spontaneously … The published incidence of splenic injury from colonoscopy does not indicate the actual incidence.” [61] Dr Hourigan opined that significant manipulation of the colonoscope, or excessive force was not necessarily required to cause significant splenic injury. [62] Dr Hourigan said in his report that some form of looping of the colonoscope is inevitable in all colonoscopies. He said that there is no doubt that looping can occur despite the best efforts of the operator to prevent it. He said that Dr Adams’ approach in this case in no way suggests that she incorrectly manipulated the colonoscope or used excessive force. Dr Hourigan stated that “Dr Adams’ approach to this difficult case would be considered best practice.” [63] Dr Hourigan stated that there were several predisposing risk factors for splenic injury including her age (>55), female gender, and a technically difficult procedure (long, -- 10 of 21 -- 11 redundant and mobile colon). He then emphasized that the plaintiff also had a very significant risk factor, namely her background of rheumatoid arthritis. Professor Hourigan explained that this autoimmune connective tissue disease can cause reduced tensile strength and integrity of all connective tissues, including altered integrity of the spleen. [64] Dr Hourigan responded to Dr Goodman’s comments that splenic injury can be avoided completely with good colonoscopic technique by stating that “No recognised adverse event can be avoided completely.” Dr Hourigan went on to say that: “Contrary to Dr Goodman’s comments, no adverse event, even if relatively rare, is entirely avoidable; this is not the reality of performing endoscopic procedures and is not consistent with the evidence-based literature.” [65] In concluding the report, Dr Hourigan stated that: “Dr Adams acted in a way at the time of the service to the Plaintiff, which would be widely accepted by my peers to be appropriate and as competent professional practice.” [66] Dr Hourigan accepted in cross-examination that splenic injury may occur because of excessive force used during the procedure, failure to adopt techniques to mitigate looping, and also from trying to mitigate looping, but also said significant manipulation of the colonscope was not necessarily required to cause splenic injury. [67] As to timing, Dr Hourigan stated that some procedures can take a long time and still be very safe. When it was put to Dr Hourigan that the average time taken for a colonoscope was about 25 minutes, Dr Hourigan replied: “It would suggest an easy colonoscopy where one would reach the caecum … in an easy manner. But if one is having a very difficult colonoscopy, some procedures can take much longer than that.” Consideration of Witnesses [68] The end result of the evidence is an acceptance by all practitioners that an injury to the spleen was a recognised, though rare, incident of a colonoscopy. Their point of departure was that Dr Goodman considered it arose as a consequence of forceful manipulation of the colonoscopy, whereas Dr Hourigan considered it could arise without such actions. [69] Dr Hourigan gave careful, considered evidence and impressed with his objective approach to the subject. [70] Dr Goodman, on the other hand, was a forceful advocate for the view that the injury should simply not have occurred. He was not open at all to the evidence of the other doctors that it could take place without inappropriate manipulation, and might occur much more than practitioners reported and realised [71] His credibility also suffered by him referring the court to a learned article, apparently in support of his position, but which he had not read, and which presented in important respects the opposite of his views. -- 11 of 21 -- 12 [72] His credibility was further diminished by him relying upon reports written immediately after uneventful surgery, him offering that the procedure took longer than was reasonable and his focus on Mrs Coulon being escorted out of hospital in a wheelchair suggesting that not all was well. Those views were not supported by the evidence, and it had the appearance of him trying to find fault. [73] Apart from these credit matters, the evidence of Dr Hourigan appears more logical than the evidence of Dr Goodman. [74] In short, I prefer the evidence of Dr Hourigan. No Evidence of Negligence [75] Leaving aside these matters, the evidence of Dr Goodman still relies upon an inference being drawn that the injury could only have happened as a result of the negligent acts of Dr Adams. There is no direct evidence that anything done by Dr Adams was in error. [76] There is, on the other hand, the evidence of Dr Adams herself. Dr Adams explained the procedure. It did not involve any forceful pressure. [77] Dr Adams gave evidence in a very careful way. Dr Adams impressed as being a very careful and methodical person. [78] I reject entirely the submission that because the nurses or Dr Adams did not record or detail the procedure in their reports that somehow an inference should be drawn that Dr Adams did not carefully address and minimise any looping that occurred. [79] The evidence is that a splenectomy is a rare, but recognised, complication of a colonoscopy. There is no justification for inferring that the event was of a kind which in the ordinary experience of human affairs was caused by negligence, which as counsel for the defendant submitted was essentially the nature of the case presented on behalf of Mrs Coulon. As submitted, relying upon Breen v Larkin3 and Schellenberg v Tunnel Holdings Pty Ltd,4 the principle of res ipsa loquiter has no application to a situation of this kind. [80] There is no evidence upon which I could find that Dr Adams was negligent. [81] The claim is dismissed. Quantum [82] It is necessary to consider quantum in case the view I have formed as to liability is upset on appeal. [83] It is convenient to start with the evidence of Mrs Coulon and to next deal with the medical evidence as it relates to that issue. 3 [2002] QSC 107 and [2003] QCA 549. 4 (1999) 200 CLR 121. -- 12 of 21 -- 13 Mrs Coulon [84] Mrs Coulon said in oral evidence that after the colonoscopy and splenectomy her Health “had gone down”. She said, “I don’t participate in anything anymore…because I feel so down.” She said she felt down both physically and psychologically. She said that as she no longer has a spleen, she can “easily catch anything”. She said she no longer goes for walks with her dog, she isn’t able to spend as much time helping with her grandchildren, she no longer makes clothes for her grandchildren and can’t do things around the house. [85] Mrs Coulon said that as a result of the splenectomy, she was required to have vaccinations and now takes antibiotics every day and takes Nilstat to deal with the thrush caused by the antibiotics. [86] Mrs Coulon admitted to being very unwell before the colonoscopy. She admitted to her various physical health conditions, including chronic neck and lower back pain, rheumatoid arthritis, breathing problems, bladder issues and breast cancer. She admitted that she had a very serious history of depression and anxiety, including in the five years prior to the colonoscopy. [87] She admitted that entries in her medical records in 2013 reveal her being depressed, tired and feeling worthless and in 2017 to her mood being affected by her chronic back and neck pain. [88] In cross-examination, Mrs Coulon admitted to having seen psychologists in the past but maintained that had stopped years prior to the splenectomy and it was only after these events that her general practitioner referred her to Ms Endrey. [89] It is apparent from the reports later discussed from the psychologists and occupational therapists that Mrs Coulon was not always honest about those issues and the extent of their impact upon her. Her real position is elaborated upon further in the consideration of the reports to which I will now turn. Psychiatric Evidence - Dr Sally Matheson [90] Dr Matheson first examined Mrs Coulon in Brisbane on 4 November 2019. In a report dated that day, Dr Matheson recorded that Mrs Coulon had suffered anxiety since childhood and that she continued to have intermittent panic attacks throughout her life. Mrs Coulon reported that she had been assessed psychiatrically in her early 50’s in the context of significant depression and been treated at the Nambour Hospital for mania approximately twelve years ago. [91] Dr Matheson said that Mrs Coulon continues to struggle with “significant depressive symptoms, generalised anxiety, panic attacks and social anxiety.” [92] According to Dr Matheson: “Mrs Coulon stated that she has recovered fairly well from a physical perspective, but she certainly has marked ongoing mood and anxiety symptoms which appear more prominent than the long-standing baseline of her bipolar disorder. Her illness has been characterised by low mood, neurovegetative disturbance, increased social withdrawal, -- 13 of 21 -- 14 loss of hedonic capacity, some difficulties with concentration and an increase in her level of generalised anxiety and panic symptoms.” [93] Dr Matheson diagnosed Mrs Coulon as having a Bipolar Affective Disorder, and an Adjustment Disorder with Mixed Anxiety and Depressed Mood. She identified Mrs Coulon as suffering social isolation and as having a GAF of 55 on the Global Assessment of Functioning (GAF) Scale. [94] Dr Matheson opined that: “Mrs Coulon certainly has long-standing mental health symptomology which was associated with functional impairment. However, based on the history presented by Mrs Coulon, both her symptomatic burden and level of functioning does not appear to have return(ed) to baseline since the colonoscopy and splenectomy.” [95] Using the Psychiatric Impairment Rating Scale (PIRS), Dr Matheson reported that Mrs Coulon had a final whole person impairment (WIP) of 2% after the colonoscopy; being 7 % prior to the colonoscopy and 9% after. [96] Dr Matheson considered that given the persistence of her symptoms, Mrs Coulon was likely to require ongoing psychological therapy on at least a monthly basis for at least the next two years, at an estimated cost of $2,400 per annum. [97] Dr Matheson examined Mrs Coulon again on 13 May 2022 for the purposes of preparing a further report. Mrs Coulon reported that she was continuing to see her psychologist, Ms Endrey, on a bi-monthly basis for psychotherapy. [98] Dr Matheson opined: “Since last review [on 4 November 2019] Mrs Coulon’s mood symptoms appeared to have largely remitted, but she remained troubled by generalised and social anxiety, together with intermittent panic attacks.” [99] In this report, Dr Matheson considered that Mrs Coulon’s diagnosed adjustment disorder with Mixed Anxiety and Depressed Mood was in partial remission. [100] Nevertheless, Dr Matheson considered that: “Mrs Coulon continues to evidence heightened anxiety symptoms despite ongoing appropriate treatment, some four years after the index event. As such, I anticipate that she will continue to experience ongoing similar levels of psychological distress and functional impairment for the foreseeable future.” [101] As to whether the injury and ongoing symptoms are related to the accident, Dr Matheson stated that: “Whilst Mrs Coulon had a longstanding mental health condition in the form of Bipolar Affective Disorder, her mental health appears to have been stable for quite some time prior to the injury of 2018. In my opinion her superimposed Adjustment Disorder relates to the events surrounding her colonoscopy in 2018.” -- 14 of 21 -- 15 [102] The PIRS remained the same as the previous report. [103] Dr Matheson opined Mrs Coulon was likely to require psychological therapy on at least a three-monthly basis to prevent relapsing symptoms at an estimated cost of $800 per annum. [104] As was apparent from the reports, and during cross-examination, Dr Matheson noted that in the first interview, Mrs Coulon presented with significant anxiety symptoms and also significant comorbid depressive symptoms, with reduced energy, motivation, reduced self-confidence and a loss of pleasure and interest. However, on the second examination, Mrs Coulon had reported that whilst her anxiety symptoms were still prominent, she had regained a pleasure in things and that she was able to be happy at home rather than feeling distressed for a significant proportion of the time, which had not been the case at the time of Dr Matheson’s first interview. Psychologist - Ms Endrey [105] Ms Endrey is a psychologist with 35 years of professional experience. Mrs Coulon was referred by her general practitioner to her on 15 May 2018. Ms Endrey commenced seeing Mrs Coulon on 23 May 2018 and at the time of writing her report, they had had 20 counselling sessions. [106] Ms Endrey stated that she had been requested to provide assistance with managing Mrs Coulon’s anxiety and depression, which had been exacerbated by a recent colonoscopy. In her report, Ms Endrey commented that the ongoing medical complications to her health as a result of the colonoscopy continue to live with her. She observed that Mrs Coulon recently identified that “the quality of my life has dropped by at least 40%.” [107] Ms Endrey noted that Mrs Coulon reported that: “…since the colonoscopy, and subsequent surgeries related to the procedure, she lives a reclusive life, fearful of leaving her home and, because she is lacking energy, performing the most minimal tasks to meet her basic needs.” [108] Ms Endrey noted Mrs Coulon’s psychological history and that she had been diagnosed at age 50 with Bipolar Affective Disorder and notes that there were a number of significant stressors in her life at that time – her husband’s bankruptcy, loss of family home and all assets, and significant marital discord and trust issues. Ms Endrey commented that fortunately Mrs Coulon reported that she had worked as a dressmaker until 2015 and was able to provide some income to keep the family afloat and that she had been stable psychologically for almost two decades. [109] In her report, Ms Endrey concluded that Mrs Coulon: “…has experienced many changes across all aspects of her life – the quality of her physical and mental life is greatly and seemingly irrepairably reduced. Of particular concern is her anxiety about undergoing potentially helpful medical procedures which may alleviate some of her medical challenges; she expresses utter fear about proceeding with any hospital-related procedure.” -- 15 of 21 -- 16 [110] Ms Endrey reported that in their many sessions together, no other issues had been identified as potentially contributing to Mrs Coulon’s ongoing and current levels of psychological distress. [111] In giving evidence, Ms Endrey said that Mrs Coulon required ongoing treatment in the form of support and counselling and thought this should be “six or seven times a year, so perhaps bimonthly for four or five years.” She observed that Mrs Coulon would not be a person who would misuse or abuse support. [112] The difficulty with the opinion provided by Ms Endrey is her limited appreciation of the prior health and circumstances of Mrs Coulon. [113] It is apparent that Ms Endrey did not appreciate that Mrs Coulon had suffered from depression for many years prior to the colonoscopy. Her understanding seemed to be only that she had experienced moments of profound sadness when she reflected on the past. Indeed, Ms Endrey understood that Mrs Coulon had made “a very viable and healthy life for herself and managed very well on every level that’s measurable.” [114] Ms Endrey did not know that Mrs Coulon had any difficulties with mobility and walking prior to the colonoscopy. Ms Endrey did not know that when Mrs Coulon completed the Persistent Pain Management Service patient questionnaire in July 2017, she rated her general activity as eight out of 10, with zero being ‘did not interfere’ and 10 being ‘completely interfered’, and her walking ability as also eight out of 10 on the same scale. [115] Ms Endrey did not know that, on that same pain questionnaire in July 2017, Mrs Coulon rated her enjoyment of life as seven out of 10 on the same scale, with zero being ‘did not interfere’ and 10 being ‘completely interfered’. [116] The responses to these questions are in marked distinction to the report by Ms Endrey that the major losses in the life of Mrs Coulon identified by Mrs Coulon since the colonoscopy included such things as mobility, independence, anxiety and fear, enjoying life, not walking, depressed and sad and unmotivated. [117] The end result is that I cannot have any confidence in the accuracy of the condition of Mrs Coulon as reported to Ms Endrey, nor, consequently, of the opinions expressed in the report by Ms Endrey. I do not accept that it could be said, as Ms Endrey stated in giving evidence, that prior to the colonoscopy, Mrs Coulon had been managing perfectly well. Occupational therapist called by Mrs Coulon - Ms Karen Martin [118] Mrs Coulon called an occupational therapist, Ms Karen Martin. [119] This report mostly consists of a recitation of information supplied by Mrs Coulon and information contained in other medical reports. Unfortunately, it also consists of opinions on matters not normally part of the expertise of an occupational therapist. [120] The basis for the admission of the report is not clear. The claim for damages was restricted to a claim for general damages and past and future medical expenses. There was no claim for past or future care. No reliance was placed upon the evidence of Ms Martin in the written closing submissions made on behalf of Mrs Coulon. -- 16 of 21 -- 17 [121] To complicate matters further, Ms Martin was only briefed with medical records predating the colonoscopy by two months. Ms Martin relied upon a patient questionnaire as to psychological distress (where she recorded a K10 score of 36 out of 50), but this was the same score that was obtained when the test was done (prior to the colonoscopy) on 17 July 2017. [122] Limiting the report to occupational therapy issues, Ms Martin said that based on the physical function demonstrated during the assessment, Mrs Coulon had difficulty performing or was unable to perform the following tasks: mobility (anxiety at leaving her home, reduced exercise tolerance), sleeping (anxiety and fear at closing her eyes), personal care (lacks motivation, increased fatigue), domestic duties (lacks motivation, increased fatigue), socialise and entertain (overwhelmed in social settings), community access (no longer independently driving, lacks motivation, increased fatigue, anxiety) and grocery shopping (anxiety at leaving her home, fatigue, reduced exercise tolerance). [123] The difficulty relying upon this evidence, however, is twofold. First it depended upon a flat acceptance by Ms Martin of everything told to her by Mrs Coulon. Although said to be based upon observations, the impairment noted for most of these tasks was clearly a product of things told to Ms Martin by Mrs Coulson. [124] The worst thing is that the report gives the appearance of describing the result of the colonoscopy without any consideration being given to the health and condition of Mrs Coulon prior to that event. [125] The true position was made very apparent during the cross-examination by junior counsel for Dr Adams. Mr Luchich asked Ms Martin to assume that: • the plaintiff had not worked as a dressmaker for decades and had not recently retired in 2015 from that role; • she had chronic mental health conditions that required active, ongoing treatment with psychiatric medication; • she had chronic neck and back pain, for which she was taking opioid medication, and other medications that were affecting her walking ability, her mood, her general activity, her sleep and her enjoyment of life; • her pain was so bad that she felt tired for no good reason, was nervous, depressed, felt everything was an effort, felt hopelessness and felt worthless; • she had epilepsy, osteoarthritis, rheumatoid arthritis and chronic obstructive pulmonary disease; and • she did not drive and that she had no close friends and was somewhat reclusive. [126] Ms Martin agreed that this was pretty much the same position that she found the plaintiff at the time of her assessment. These things were all in existence prior to the colonoscopy. [127] In short, I was not assisted by the report from Ms Martin, and, had it been relevant, I would have required the parties to specifically address on the question of the costs of this report. -- 17 of 21 -- 18 Occupational Therapist Report - Anne White [128] The opinions contained in the occupational therapist’s report commissioned on behalf of the defendant were not much better. This report (from Anne White) was however, very useful in documenting the previous medical history of Mrs Coulon, and, in particular, the issues she raised with her general practitioner since December 2009. The medical history includes long-standing anxiety, panic attacks, osteoarthritis and rheumatoid arthritis, chronic obstructive pulmonary disease, hypertension, cervical spondylosis, depression, mania, bipolar affective disorder, chronic back pain, bladder prolapse, hypercholesterolaemia, pelvic organ prolapse, vaginal hysterectomy and anterior vaginal wall repair and insomnia. The medication listed in the medical records included Seretide, Targin, Cavstat, Syquet, Nordip, Logem, Loxalate, Tibolone, Moxicam, Diazepan, Methoblastine and Uremide. It was this report which contained the information relating to the pain questionnaire and the K10. [129] The report is in marked distinction to that from Ms Martin, who was not only not provided with the same documents but was not provided with the report from Ms White. [130] Though it is unclear whether her expertise was necessary, it is correct to adopt from this information the observation of Ms White that the chronic pain and chronic health symptoms of Mrs Coulon appear to have significantly impacted her capacity to function well prior to the colonoscopy. Assessment of General Damages [131] The claim for general damages is to be assessed in accordance with the Civil Liability Regulation 2014 (Qld). It was accepted by both parties that the dominant injury was the loss of the spleen. It was submitted on behalf of Mrs Coulon that the relevant injury scale value was item 80 and on behalf of Dr Adams that it was item 81. [132] Item 80 applies if there would be a risk, that is not minor, of ongoing internal infection and disorders caused by the loss of the spleen. Item 80 has a range of ISV values from 8 to 20. The Regulation provides that an ISV at the bottom end of the range applies if there is intermittent symptoms of pain, nausea and vomiting. An ISV in the middle would be appropriate if the injury leads to a serious infection after the splenectomy and the infection requires surgical or radiological intervention. An ISV at or near the top of the range is appropriate if the loss leads to portal vein thrombosis. [133] Item 81 is for an injury to the spleen or uncomplicated loss of the spleen. An example of such an injury is where there has been a laceration or contusion to the spleen that resolves fully; though the regulation also provides that an ISV at or near the top of the range would be appropriate if there has been removal of the spleen with little or no risk of infection. [134] In support of the application of item 80 is the evidence of Dr Goodman, who says that there is a risk of infection as a result of the loss of the spleen. That evidence was accepted by the defence. On behalf of Dr Adams, it was submitted that this risk was minor, and hence item 80 was inapplicable, because the risk of infection could be prevented by a regime of vaccinations which would need to be repeated and the use of prophylactic antibiotics. As against that proposition, however, is the unlikelihood that the intention of the legislation, in assessing risk, was that the court should -- 18 of 21 -- 19 downplay or minimize the risk having regard to the benefits of medical intervention. For similar reasons, item 81 is inapplicable, even at the higher end of the range, as that only applies if there is little or no risk of infection as a result of the loss of the spleen. [135] In support of a higher ISV provided for in item 80, counsel for Mrs Coulon relied upon the evidence of Dr Matheson to the effect that Mrs Coulon had an additional psychiatric injury assessed as a 2% WPI. Counsel for Mrs Coulon submitted that as a result her ISV should be marked up by 25%. [136] Section 4 of Schedule 3 to the regulations allows such a markup if the court considers the level of adverse impact of multiple injuries is so severe that the maximum dominant ISV is inadequate to reflect the level of impact. Counsel for Dr Adams submitted that, if the court was to have regard to the psychiatric injury, the ISV starting at item 81 would end up at 9. [137] I have previously rejected that item 81 applies; however, I also reject that an ISV at the middle or higher end of the range for item 80 applies. There is no evidence that any of the possible sequelae of the loss of the spleen referred to in item 80 occurred. [138] I am not convinced that the loss of the spleen has any lasting psychiatric effects, but I accept that it may have had some effect in the years after the injury. Section 3 of Schedule 3 allows a court to assess the ISV for multiple injuries as higher in the range for the dominant injury. Adopting the 2% PIRS opined by Dr Matheson leaves room for an ISV range of between 0 to 1 under item 13 for minor mental disorders. [139] I accordingly assess general damages at $14,400; being an ISV based on item 80 but assessed at 9 having regard to the psychiatric sequelae. Special Damages [140] Accompanying the submissions on behalf of Mrs Coulon was a schedule of loss and damage. This was for: (a) Attendances at hospital and treating practitioners pursuant to a Medicare claim of charge - $10,090.20; (b) Attendances at hospital and treating practitioners pursuant to a Medicare claim of charge - $1,894.80; (c) Pharmaceuticals - $1,245; (d) Travel to medical professionals - $5,000; (e) Future psychological counselling - $20,812.50; and (f) Future pharmaceuticals - $5,500. [141] The evidence in support of the claims for special damages is scant. Not even the Medicare claim of charge was in evidence. [142] There was no evidence as to the cost of the pharmaceuticals. Mrs Coulon explained in cross-examination that she had to pay an amount for her tablets and then when she hit the net, she did not have to pay anything. She was not asked and did not say what -- 19 of 21 -- 20 amount she paid for her tablets or the amount of the net. Evidence was not tendered as to either. Schedule 2 to the schedule of loss and damage was said to be as per the enclosed statement of accounts. There were no accounts or invoices tendered. The schedule, however stated the cost for most of the medications was $6.40 with the Nilstat at $11.99. I am prepared to infer from the evidence of Mrs Coulon and judicial knowledge of the cost of pharmaceutical provided under the scheme that these would be approximately correct. [143] On behalf of Dr Adams, it was submitted that no allowance should be made for these medications as, given the extent of her medications, Mrs Coulon would meet the threshold, and accordingly would not incur expenses for prophylactic antibiotics and anti-fungal medication. No authority was given for the proposition that the defendant should have the benefit of the fact that those expenses have been paid in the past by the public under the pharmaceutical benefits scheme,5 nor as to the nature of the statutory scheme which might lead to that result.6 Nevertheless, if the position is that Mrs Coulon does not have to pay for the pharmaceuticals, no damages are recoverable for them.7 [144] If an assessment should be made, a reasonable assessment for the past cost of the medication is $1,245 and for the future is at $10 per week. Mrs Coulon is currently 74 years. It is submitted that she has a current lifespan of 15 years; which on the 5% tables gives an amount of $5,500. There is no evidence specifically relating to the expected lifespan of a person with the health of Mrs Coulon; either from Mrs Coulon or Dr Adams. Nevertheless, in my view, a deduction of 15% for contingencies, as is often made, would be too low. If an award under this head were to be made, a reasonable assessment would be $2,000, but given that it would seem she does not have to pay anything, I will not make any allowance under this head. [145] The claims for hospital and treating practitioners appears to be for her general practitioners and Ms Endrey. [146] In her oral evidence, Mrs Coulon said that she saw her general practitioner for her other health complaints. I do not allow any amount for those attendances. [147] No specific amount is claimed as to the amount of the loss arising from the attendances on Ms Endrey. The evidence shows that Mrs Coulon had 27 consultations with Ms Endrey up to 13 January 2022, seven of those being between 23 May and October 2018. On behalf of Dr Adams, it is submitted that, if an award were to be made under this head of alleged loss, it should be limited to that period. The schedule of loss and damage shows that the cost of a consultation in 2021 was $150; which counsel for Dr Adams was prepared to assume as being the likely cost. [148] The claim for counselling is complicated by the fact that, on the evidence, Mrs Coulon had a very complicated medical history prior to these events and that perhaps she should have been engaged in counselling at the time of these events. 5 Cf National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569, 573. 6 Redding v Lee (1983) 151 CLR 117. 7 State Government Insurance Commission v Hitchcock (Supreme Court of Western Australia, Full Court, 11 March 1997, unreported); Morris v Zanki, by his next friend, Zanki (1997) 18 WAR 260. -- 20 of 21 -- 21 [149] However, accepting the evidence of Dr Matheson, as I do, the splenectomy resulted for a time in a worsening of Mrs Coulon’s mood symptoms and that resulted in her GP seeking the assistance of a psychologist in the management of Mrs Coulon. By the time of the second consultation with Dr Matheson in May 2022, the mood symptoms had largely remitted. Dr Matheson commented that she still remained troubled by generalised and social anxiety with intermittent panic attacks and considered that there was a need for ongoing psychological therapy to prevent relapsing symptoms at an estimated cost of $800 per annum (or an allowance for four consultations per year). Whilst it is perhaps questionable as to whether that has more to do with Mrs Coulon’s underlying mental health conditions, I will make an allowance for a further two years of therapy. [150] I assess the loss arising from the cost to attend Ms Endrey at $4,050; being for the 27 consultations at $150. I will allow an amount for a further eight consultations over the next two years; being a total of $1200 for the future. [151] The amount for travel is claimed at a global amount of $5,000. The evidence was that the doctor and chemist were less than 500 metres from where Mrs Coulon lives. Mrs Coulon attends the doctor and the chemist for reasons other than the splenectomy; and only a short driving distance is involved. I do not propose to make any allowance for this alleged head of loss. [152] Accordingly, I assess the special damages at $5,250.00. Orders 1. As I stated previously, the order which follows is that the plaintiff’s claim is dismissed. 2. I will hear from the parties as to costs. -- 21 of 21 --