Winkler v White[1998] QDC 261

BETWEEN:

AND:

REASONS FOR JUDGMENT - Wilson A.D.C.J.

Delivered the 2nd day of October 1998

The plaintiff is a female born 11 December 1944. She sues the defendant, an anaesthetist, for damages for negligence and/or breach of contract and/or trespass in the form of battery, which allegedly caused her personal injury. The trial proceeded over four days at Southport District Court 20 - 23 July 1998 and involved evidence from, inter alia, sixteen medical experts. Subsequently, each side delivered written submissions.

It became apparent during the trial that the plaintiff did not press her case in trespass, and her counsel's written submissions do not address the issue. The abandonment of that cause of action was appropriate, it being clear that before the defendant injected the plaintiff with an anaesthetic she knew that procedure was intended and it had been explained to her, at least in broad terms. As the High Court said in Rogers v Whitaker (1992) 175 CLR 479 at 490 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ):

It is not in issue that between June and October 1990 the plaintiff became concerned by weight loss and in mid October consulted her general practitioner, Dr Wright, who referred her to Dr Robinson, a gastroenterologist in Southport whom she saw on 24 October 1990. He recommended a colonoscopy and at the time handed her an information sheet called “Preparation for Colonoscopy”, which contained this paragraph:

The plaintiff attended at Pindara Hospital for the colonoscopy on 2 November 1990. The defendant (who was not Dr Robinson's usual anaesthetist) administered an anaesthetic (not Hypnovel) to the plaintiff in the course of which he attempted to insert a needle into a vein on the inside of her left wrist, and she complained of pain. The needle was removed and then inserted into the top of her right hand and taped into position. The colonoscopy was performed by Dr Robinson and the plaintiff left Pindara later that day.

Subsequently she complained of and sought treatment for pain and discomfort in and around her left hand and, in particular, her left middle finger. Her treatment is discussed in further detail later but in July 1991 she underwent an operation, called a sympathectomy performed by a neurosurgeon, Dr Coroneos and directed towards alleviating the problems in the hand which, she said, had been manifest since the defendant's injection.

TERMINOLOGY

Much of the medical evidence was addressed to two questions: appropriate areas and techniques for injection of anaesthetic, and the nature of the condition which the plaintiff claims she suffered after 2 November 1990 as a consequence of the defendant's negligence.

There is some disagreement amongst the medical experts as to which part or parts of the body are best and safest for injection, but limited consensus about three principal preferred areas:

The plaintiff pleads that when the defendant attempted to insert the needle by which the anaesthetic would be administered (also, frequently, called the cannula) he struck the median nerve in her left arm and, as a consequence, she developed “reflex sympathetic dystrophy syndrome” (“RSD”).

RSD is a condition referred to by doctors, and in medical literature under many other names including Shoulder-Hand syndrome, sympathalgia, causalgia and Suddeck's Atrophy. It has been described for many years, and was first mentioned following gun-shot wounds to the limbs of soldiers in the American civil war. Some experts dismiss it as without physical cause, and describe it as a “somatoform pain disorder” - i.e., a physical presentation of symptoms, without any organic basis to explain them. Dr Rice, a psychiatrist, said that victims of somatoform pain disorder had “...converted a psychological distress of recollection of symptoms into a physical presentation...”.

In recent years the International Association for the Study of Pain has categorized two groups of disorders of this kind: complex regional pain disorder - type one, which includes RSD and is associated generally with trauma to a limb (even minor trauma) but does not involve major trauma to a large nerve; and, type two which includes what was formerly called “causalgia” and is associated with major trauma to a major nerve. The symptoms most commonly described are not unlike those seen when a limb is immobilized for a length of time - trophic changes including alterations in temperature and colour and, sometimes, the loss of secondary features such as hair; and, generally, complaints of significant pain. Not all specialists accept this categorisation as legitimate - e.g. Dr Cameron, a neurologist called by the defendant.

The majority of doctors use the term reflex sympathetic dystrophy and it was also the phrase pleaded, and most commonly used by counsel. For the sake of consistency it is appropriate to use that term throughout; and, for brevity, “RSD”.

Particulars of Negligence

The plaintiff's allegation of negligence was particularized thus:

Although the plaintiff gave evidence that she had not moved her hand whilst the defendant was attempting to inset the cannula into her left wrist, written submissions about particular (c) advance, by implication, an additional allegation - that if the plaintiff did move her hand when the needle was inserted, the defendant was guilty of a failure to warn her not to do that. The Plaintiff's submissions, in respect of that particular say:

Only three persons gave evidence about what occurred at the time of the plaintiff's colonoscopy: the plaintiff, the defendant, and Dr Robinson and, not surprisingly, the latter had no useful recollection about what, if any, conversation, information, advice or warnings passed between the plaintiff and the defendant. Their versions were in vivid conflict and it is necessary to make findings about credit.

The plaintiff's version

The plaintiff says that when she entered the operating theatre two nurses and the defendant were present. One of the nurses introduced her to the defendant who, she says, did not speak but simply acknowledged her with something like a grunt. She climbed onto the operating table and one of the nurses instructed her to lie on her left side. A short time later the defendant came and stood next to her on her left side. Without applying any tourniquet he took her left forearm, pulled it out straight and lay it down flat on the operating table with the knuckles upwards. She closed her eyes. She felt him attempt to insert a cannula into the top of her left hand. She experienced some pain but did not open her eyes. He then turned her left arm over so the underside of her forearm and wrist were facing upwards. She then felt a severe shooting pain extending from about two inches below her wrist up to the tip of the middle finger of the left hand, then back down again to the base of that finger and across to the index finger. She described it as a sharp, excruciating pain. On her version, she said to the doctor:

She says he replied:

She said:

She says the defendant said:

Her versions differed but in evidence in chief she says the defendant said to her, at about this time:

and then cupped her hand in his own and bent it back up. He then put her hand down. The pain ceased. He then walked around the bottom of the operating table to the right hand side, took her right hand and inserted the cannula into the top, again between her little and ring fingers. He then taped the cannula and left the theatre.

The exact sequence of these events, in relation to the colonoscopy being performed by Dr Robinson, was not clear. At some point both the defendant and Dr Robinson were in the operating theatre and Robinson apologized for being late; in chief, the plaintiff said that immediately thereafter:

Later she remembers sitting in a chair in a room and the defendant came to the door of that room and put his head around and said:

And she nodded her head and said “Yes”. She also spoke of having an oxygen mask on her face when she recovered consciousness; of being roused out of the anaesthetic on three different occasions; and she said that “They finally got me out of bed and put me in a chair.” Later still she saw Dr Robinson who told her the colonoscopy had not revealed anything untoward.

In cross-examination she said when the defendant first came near her left arm he “grabbed” her hand and described his manner as “not exactly gentle”.

She was adamant that at no time did the defendant take her blood pressure; or, place any cuff on her arm for the purpose of taking blood pressure, and/or as a tourniquet.

The defendant's version

Dr White qualified as a medical practitioner in 1971 and as anaesthetist in 1977 and thereafter practiced continuously in that speciality. He was not listed to assist Dr Robinson on the day of the plaintiff's colonoscopy but, for undisclosed reasons, was asked by the anaesthetist who was listed to act in that doctor's stead. He had a vague recollection of the plaintiff as a smallish blonde lady.

He could not precisely recall the exact words he spoke to her, but said he had a “standard patter” on these lines:

He says that before he applied the needle he put a blood pressure cuff on the left arm and took the plaintiff's blood pressure and then left the cuff in place, as the most effective form of tourniquet i.e. one which “brings the veins up better” so that he could find a suitable vein for injection.

He could not remember attempting to place the needle in the back of the plaintiff's left hand but agrees that was the first place he would look for a suitable vein. He said, however, that he recalled events that occurred thereafter because the plaintiff was an extremely difficult venipuncture. His standard practice was to look at the back of the hand or the forearm and then at the elbow and then, if necessary, go to the front of the wrist. When he attempted to inject there the plaintiff complained of pain shooting to the first and second fingers i.e. the index and middle. As soon as she complained he withdrew the cannula and proceeded to the right arm.

Before attempting to inject in the wrist he took the plaintiff's left hand in his own and dorsiflexed her hand, i.e. pushed the palm down so that the underside or bottom (the palmer/volar aspect of her wrist - or, as the defendant also described it, the ventral aspect) was facing upwards and the hand was facing down. As he injected into the vein in the wrist the plaintiff suddenly, and without warning flexed her wrist - palmar flexing - upwards so as to change the angle in which the needle was entering the vein. He says that while injecting the needle he was moving it virtually parallel to the skin surface and the slight change of angle caused by the plaintiff's flexion of her wrist altered the angle so that he went through the back of the vein - and, as he conceded, probably touched the median nerve causing the plaintiff's complaint of the sensation of pain shooting into her fingers. The defendant's written submissions contained a concession to that effect:

Credit Findings

The defendant was an impressive witness who appeared to carefully distinguish between matters he actually recalled, and steps or procedures of which, he says, he has no precise recollection, but believed occurred because they form part of his invariable practice. He was frank about those matters he could not recall: e.g., that he might have attempted to insert the cannula, first, into the back of the plaintiff's left hand. There is some corroboration for important parts of his evidence: in particular, that he took the plaintiff's blood pressure and used the cuff of the instrument used to measure that pressure - the sphygmomanometer - as a tourniquet. Dr Robinson could not recall whether this occurred on this occasion but said he had seen the defendant give sedation before and use the cuff as a tourniquet. The defendant's hospital anaesthetic record, dated the same day as the plaintiff's colonoscopy, contains notations that systolic blood pressure readings were made in the course of the colonoscopy procedure; and the defendant said that he invariably used the cuff of the blood pressure device as a venous tourniquet. There was no challenge to his assertion that at least three blood pressure readings were taken. His memory was also aided by other parts of that record which he says were made within, at least, a couple of hours of the colonoscopy. These words appear, among others, in his handwriting:

The plaintiff's memory was shown, in a number of respects, to be less than precise. Because of other longstanding health problems she had not worked for many years prior to a period of five months in 1990 when she was employed, she said, by Bentley Fragrances (McDonnell & East), earning about $140.00 per week. When confronted with her 1988/89 tax return which showed the employment took place in that, and not the following year she was, initially, adamant in her claims that 1989/90 was, nevertheless, the correct year for this employment. She apparently reflected on the matter overnight, because the following morning she admitted in her evidence that she was “totally confused” and the tax return was correct. She also admitted that although she had earned some $4,400.00 for this employment while in receipt of Social Security benefits, she had not disclosed that income to the DSS.

She told a medical practitioner, Dr Lowe that she was unsure whether or not the sudden onset of shooting pains in the middle finger of her left hand had occurred when the needle was being inserted into the dorsum of the hand between the fourth and fifth digits, or on the palmar aspect of the wrist and admitted that:

Within a month of the colonoscopy she saw Dr Richard Boyle, a neurologist who reported that:

The plaintiff did not deny telling Dr Boyle this, and that specialist said he had made notes at the time of the interview, and the report reflects the note.

Her evidence was that only her middle finger was affected by the injection, and it was the only site of pain in the days after the colonoscopy but in the reports of Dr Coroneos of 8 and 11 May 1992 she is recorded as complaining of pain in two fingers on the left hand.

She denied that she had everbeen unhappy with medical treatment in the past but it became clear she was dissatisfied with the effects of some plastic surgery she had undergone in the 1980's and blamed the surgeon for problems after it. She also denied that she had any previous problems with her left arm but evidence from Dr Toakley, neurosurgeon, showed that in early 1987 she had consulted him complaining of paraesthesia in the left arm and, in particular, the left hand and forearm.

She attempted to claim, as items of special damages, the continuing cost of a number of drugs which, in fact, she had been prescribed and taking for many years before the colonoscopy, and had simply continued to do so after it. Her initial claims for special damages also included the cost of visits to medical practitioners for treatment for skin cancer, a bowel problem, and to a skin specialist about problems with her toenails, and a gynaecologist. She was adamant the toenail problem was related to this case and initially took the same view about the visit to the gynaecologist, although she later resiled in respect of that claim. At best it might be said that the plaintiff, who admitted she was:

has developed something of an obsession about symptoms which she perceived arose after the colonoscopy, and unthinkingly attributed them to the defendant's alleged maltreatment; and, that she left matters like claims for special damages to her instructing solicitors - but, her apparent belief that problems like, e.g., her toenails are related to this case illustrated she had, for whatever reason, become less than clear in her thinking about the issues. She presented in the witness box as very tense, but firm and precise in her answers - when, as the matters discussed above show, her recollection was often wrong, or confused. I was not impressed with her evidence, and concerned by those matters, and have come to the view that, where her description of events differs from that of the defendant, his should be preferred.

Liability

The parties are at one in respect of the principles to be applied in determining liability. Both cited and relied upon Rogers v Whittaker (1992) 175 CLR 479 as containing the appropriate tests. In summary:

The plaintiff alleges she should have been given two warnings: not to move her hand or wrist; and, of the risk of nerve damage and consequences including RSD. The defendant submits, however, that the plaintiff must fail on this issue because she has never claimed that, even if she received these warnings, she would not have proceeded. Her evidence-in-chief did not address the issue. In cross-examination she was asked whether or not she would have proceeded with the colonoscopy had she been told that she was to receive some anaesthetic other than hypnovel, and she said she didn't think it would have affected her decision.

Two questions later, her reply was firmer:

In Green v Chenoweth (District Court Brisbane, Robin QC, DCJ, 1195/94, 26 November 1996) the plaintiff patient failed because she had not satisfied the trial judge that, had she received a warning, she would have declined the operation subsequently performed by the defendant. In dismissing the appeal (Court of Appeal, 10998/96, 11 November 1997) Pincus JA said:

Wilson J in Gould v Vaggelas set out as one of the principles applicable to actions of deceit that:

Macpherson JA, and Shepherdson J agreed with Pincus JA on this point. Since the trial of this action the High Court has given judgment in Chappell v Hart (1998) HCA 55 (2 September 1998), a complex matter in which the respondent sued her surgeon, the appellant, following an operation on her throat in which he perforated her oesophagus, and infection and damage to her laryngeal nerves followed. She had not been warned of that risk and her evidence was that, had that occurred, she would not have had the surgery at that time and would have taken steps to have it performed by “the most experienced surgeon with a record and a reputation in the field.” The surgeon appealed on the basis there was no causal connection between his failure to give that warning, and the damage suffered. The plaintiff did not contend, on appeal, that the surgery was performed without adequate skill and care and the evidence showed the infection was a random event which might occur no matter when, or by whom the surgery was performed. By majority (Gaudron, Kirby and Gummow JJ, McHugh and Hayne JJ dissenting) the court held the respondent plaintiff had established a causal connection between the failure to warn and her injury once she proved, as she had, that the risk of injury would have been less if she had retained the services, on another occasion, of the most experienced doctor in the field. A number of the judges remarked upon the plaintiff's obligation to adduce evidence establishing a causal connection. Gaudron J said:

McHugh J said:

In the absence of any evidence from the plaintiff I cannot be satisfied that, had she received the warnings she says the defendant owed to her but did not provide, she would have declined treatment from him or, indeed, done anything other than proceed with the treatment notwithstanding the risk. Absent that evidence, she therefore fails to establish any causal connection between the lack of warning, and her subsequent condition. Further, as later discussion of the medical evidence about the risk of RSD occurring shows, it is extremely remote; the credit findings I have made, and my impression of the plaintiff, means it is unlikely that even if she had given evidence she would have taken some other course, if warned, the evidence would have been persuasive.

It is appropriate to review the many issues raised in the case, and make findings as to liability, by traversing the particulars of negligence set out earlier:

1. (a)
   failing to apply a tourniquet to the Plaintiff's left arm to increase the size of the vein so that an appropriate vein could be chosen;

The evidence concerning this issue has already been discussed. I am satisfied that in the course of administering the anaesthetic and during the colonoscopy, the defendant took the plaintiff's blood pressure and in doing so applied a cuff to her left arm which he then left in place as a tourniquet, the purpose of which was to enlarge the veins in her arm and enable them to be more clearly seen and injected with anaesthetic. Professor Cramond, a very highly qualified medical practitioner and an anaesthetist since 1966 said a blood pressure cuff was the best form of tourniquet, and other medical witnesses supported her; and, none suggested to the contrary.

I am satisfied that before attempting to inject the cannula the defendant applied a blood pressure cuff to the left arm, inflated it and took her blood pressure, and left it in an inflated condition, operating as a tourniquet, before moving to inject the cannula.

1. (b)
   failing to explain the procedure to the Plaintiff before inserting the cannula into the Plaintiff's left wrist;

Again, for the reasons given when making findings as to the credit of the plaintiff and the defendant, I am satisfied the defendant gave his “usual patter” and the plaintiff knew, in general terms, what was about to happen. She has not argued that, if the defendant used these words, the explanation was inadequate.

1. (c)
   failing to warn the Plaintiff of the inherent dangers and risk of injury before inserting the cannula into the Plaintiff's left wrist;

The plaintiff's allegation, discussed earlier, is that two warnings should have been given: first, not to move her wrist or hand; and, against the danger of nerve damage and sequelae, including RSD.

I have already concluded that, without evidence establishing what she might have done if given, at least, the second warning the plaintiff fails to establish causal liability, but in any event, the medical evidence shows the risk of RSD was so extraordinarily remote as to negate the need for a warning. Dr Crombie, an anaesthetist since 1976 called by the plaintiff, was the only practitioner who said the risk of RSD from touching a nerve “would have occurred” to him as a risk but, in his report, said the actual risk of injury associated with inserting the cannula into the wrist is “very low”. Dr Coroneos, a neurosurgeon, described RSD as a “rare condition” and said he would not have warned a patient of it, as a risk. Dr Stevenson, consultant physician, said:

In evidence, he said that he had never seen, nor heard or read of, RSD occurring following needling of or damage to the median nerve and described it as a condition which “tends to be rare”. He agreed that it was a complication which could not reasonably have been anticipated by the treating anaesthetist and that he did not warn patients of it, or teach or direct registrars to do so.

Dr O'Callaghan, another experienced anaesthetist and pain specialist, said he had not, and did not warn his patients about to receive an anaesthetic that they might develop RSD. Dr Busby, an anaesthetist since 1978, gave evidence to the same effect and described RSD, as a consequence of the operation being performed by the defendant, as an “incredibly rare” event, of which there was an “infinitesimally small” risk. Elsewhere he described it as the “most rare complication” which could occur in association with anaesthesia; and, pointed out that the actual business of applying needles to nerves, including the median nerve, i.e. “needling” - is a very safe procedure regularly used in the course of performing nerve blocks.

Professor Cramond said she had searched back ten years in medical literature and had found no reported cases of RSD as a consequence of an anaesthetic needle inadvertently entering a nerve and, indeed, “no reported cases of this associated with therapeutic or diagnostic techniques”. As to the question of a warning about RSD, she said:

This particular was added on the eve of trial, by amendment with leave. It was not addressed in the plaintiff's written submissions. Only Dr Cromby raised the matter, but he did not say the defendant should have used one in this case. He admitted he uses pre-med rarely and only if the patient is “very nervous”. Professor Cramond said it would be very unusual to give a pre-med for day surgery colonoscopies, and Dr Robinson, who has performed thousands of operations of that kind, said he had only ever given one and even then thought it was unnecessary, but the patient had insisted. Dr Busby, who works mainly in major heart surgery, said it was not routine and his research in the literature indicated pre-med's were “fairly rare”.

The plaintiff has made a general submission in these terms:

There is no evidence the plaintiff was particularly nervous or tense before, or about the colonoscopy, or that she raised any concerns, worries, or queries with Dr Robinson. She had received a printed form of handout explaining the procedure to her and, on her own evidence, had no questions about. She did not raise any queries with nursing staff, whom she first encountered on the day. In summary there is no evidence to suggest she was a patient in the same category as the plaintiffs in Rogers v Whitaker (supra) or Chappell v Hart (supra), i.e. one who had particular health problems, or had raised particular concerns indicating a vivid interest both in the nature of the procedure, and the risks attached to it. I am satisfied that no aspect of the plaintiff's behaviour before or during the procedure warranted, or required a pre-medication sedative.

In summary I find the plaintiff has failed to prove the defendant was negligent.

Quantum

It is nevertheless appropriate to make findings about damages.

The plaintiff said that on the morning after the colonoscopy her left hand was grossly enlarged, and black and blue on top. After showering and changing, and while dressing she felt a piercing and severe pain in the middle finger. Some days later she made attempts to contact her general practitioner and Dr Lowe, not her usual GP, referred her to Dr Maxwell, a Neurologist at Southport. He performed nerve conduction studies, which were normal. Shortly afterwards she went to see Dr Wright who referred her to Dr Coroneos. He observed that the hand was very tender, blue and mottled in colour and extremely cold, but sweating profusely. He arranged for further nerve conduction tests to be performed by Dr Boyle, another Neurologist which were said to show positive results of abnormal loss of sensation. Dr Coroneos diagnosed RSD, and conducted nerve block surgery which, he said, was successful and should have relieved the bulk of her symptoms. Indeed, he concluded in his report of 6 October 1997 that the RSD had disappeared and there was no further organic cause for the symptoms of which the plaintiff still complains - soreness and tenderness in or about the middle finger, and apparent rigidity.

The plaintiff has undergone eight stellate ganglion blocks in Queensland and two guanethidine blocks in Melbourne and, ultimately, a surgical sympathectomy ganglionectomy, performed by Dr Coroneos on 29 July 1991. This involves re-section of the rib and entry of the plural cavity. Further surgery was performed, later, by Dr O'Callaghan. Other treatments have been attempted including infusions of local anaesthetic for up to four days at a time and interscalene brachial plexus nerve blocks. The plaintiff continues to take a large number of pain killers. A video film showed that she tends to keep the middle finger of her left hand straight, and avoid bringing it into contact with objects.

It is apparent from the many medico-legal reports that the doctors have found her a difficult case. I am satisfied, in light of Dr Coroneos evidence, that she did initially have a condition of the kind generally described as RSD and that it arose shortly after and is temporally connected with the colonoscopy. A great deal of the medical evidence, in reports and at trial, was taken up with the question whether RSD is, in truth, a physical ailment with organic signs capable of clinical detection and observation or, alternatively, a product of the mind. The medical evidence encompassed the gamut of opinion from, e.g., the psychiatrist Dr Rice who was consulted by the plaintiff in 1991 (but to whom she did not return for suggested follow up treatment) who diagnosed a somatoform pain disorder of “jurisogenic aetiology”, i.e. an illness having a “conscious or subconscious” genesis in the litigation process, and Dr Cameron, a very impressive witness, who expressed doubts about the validity of the major studies on RSD, to Dr Coroneos, at the other extreme, who had no doubt about the diagnosis, although he could offer no explanation for her continuing symptoms. The most unsympathetic view of the plaintiff came from practitioners who suggested symptoms now were the consequence of “active chronic immobilisation” of the finger.

Those practitioners who saw her in the initial stages, e.g. Dr Coroneos and another Neurosurgeon, Dr Smith observed clear signs of symptoms consistent with RSD and I find the plaintiff developed that condition, that it was painful and debilitating, and that she required extensive treatment for it. After active treatment ceased, however, the weight of medical evidence indicates, strongly, the condition should have been cured and Dr Coroneos's ultimate view, at least in his reports, was that none of the plaintiff's “living restrictions” in 1997 could be “currently related to the left sympathetic dystrophy which I observed and treated as I have outlined”. The possible explanations for continuing symptoms ventured are continuing RSD; conscious or unconscious immobilisation - one of which involves, of course, an element of malingering; or some mental problem, of the nature of a somataform pain disorder. The video film showed that, at least on public occasions but even when she could not have known she was under observation, the plaintiff keeps her middle finger rigid and protected. The impression she made in the witness box was of a tense and rather obsessive person. I was not persuaded she is malingering, and accept that she genuinely believes she experiences continuing symptoms in and around the offending finger and her hand. Neither the original, nor any continuing disability have ever been measured in the usual percentage terms e.g. by reference to a loss of use of her fingers, hand or upper limb. She is naturally right handed. She has, certainly, had a very unpleasant time in the past, and continues to take pain killers. In all the circumstances I consider $25,000.00 would be an appropriate award for pain, suffering and loss of amenities, with interest on $20,000.00 for 7.9 years at 2%, i.e. $3,160.00.

As to special damages agreed medical expenses are $19,857.25, of whichonly $9,313.11 attracts interest. I would also allow pharmaceutical and miscellaneous out of pocket expenses of $1,054.80. The amount attracting interest under this head would be $10,367.91; interest, at 5% for 7.9 years would be $4,095.00.

There is a claim for future economic loss but, as a consequence of a cerebral aneurism in 1985 the plaintiff was prevented from working in her former capacity as a cosmetics consultant, save for a short period in 1989. She has been in receipt of an invalid pension since 1985 and there is no suggestion that, but for the consequences which arose from the colonoscopy, she might have been able to relinquish benefits, and return to the work force. I am not satisfied any award should be made under this head.

There is also a claim for past care, but only to 30 June 1993. It is clear from the video and the plaintiff's own evidence that she is reasonably dexterous, and admits she can cook a steak and can perform most household chores. It seems the last significant treatment she had was from Dr O'Callaghan in 1993 but otherwise it is not immediately clear why, in submissions on her behalf, the claim is limited to the period up to that year. Mr Maurice Campbell, with whom she has lived as a friend for 20 years and who works as a taxi driver said he did most of the cooking, shopping, sweeping, cleaning, and vacuum cleaning in the home and would spend between 15 and 20 hours a week performing these tasks. A schedule was presented claiming 16 hours per week for gratuitous domestic services provided by Mr Campbell, at commercial rates - up to 30 June 1998, over $50,000.00.

Little attention was paid in submissions to this head but cross-examination established, from both the plaintiff and Mr Campbell, that she was capable of preparing meals and the only tasks actually beyond her were moving pot plants in and out of the house, taking out the garbage, turning mattresses and, perhaps, vacuuming. Certainly I was left with the strong impression Mr Campbell does not prepare every evening meal, as the schedule claimed. Ultimately I have come to the view that up to, say, mid 1993 when active treatment ceased there were periods the plaintiff would have required quite high levels of assistance and an allowance of about one hour per day would be appropriate. Since 1993, only around two hours per week can be substantiated. At $10 per hour for the first period i.e. 3.7 years the award would be $9,464.00; and, since then at an average $14.00 per hour for 5.3 years, $7,717.00, for a total award of $17,181.00.

No submission has been made for an allowance for future care.

The total damages, including interest, would be $69,808.05.

It appears the result must be an order that the plaintiff's action is dismissed with costs to be taxed. However, the parties will be afforded an opportunity to submit for some different orders.