Harris v Bellemore

HER HONOUR : Paul Harris was involved in two separate motor vehicle accidents as a child. His injuries included fractures in the right leg, which disturbed the normal growth of the bone. By the time he was fifteen, his left leg had grown longer than his right by more than four centimetres. An orthopaedic surgeon attempted to correct the discrepancy by shortening the left leg surgically (twice), but after further growth there remained a difference of about three centimetres between the lengths of the two legs. Of at least equal significance to Mr Harris was the fact that the intervention of the orthopaedic surgeon left Mr Harris considerably shorter than his twin brother, who grew to be six feet tall.

At the age of thirty, Mr Harris consulted Dr Michael Bellemore with a view to having his legs lengthened by a procedure known as the Ilizarov technique (developed by a Russian doctor, Professor Ilizarov). Dr Bellemore is an orthopaedic surgeon who specialises in that technique, although his experience in the use of the technique at that time was predominantly with children. Mr Harris wanted not only to have his right femur lengthened, so as to eliminate the residual discrepancy of three centimetres, but then to proceed to have both limbs lengthened by a further eight centimetres so as to increase his height to equal that of his twin.

The Ilizarov technique of limb lengthening involves a surgical procedure during which a large steel frame is fitted externally around the limb. Internally, the frame is fixed to the bone with steel pins. The surgeon then performs an osteotomy (dissection of the bone). The frame is kept on the limb for a period of some months, during which the surgical fracture is gradually pulled apart by daily adjustments to the frame. The process of increasing the distance between the parts of the bone is called distraction. As the fracture is distracted, new bone forms to fill the gap, resulting in a lengthened limb.

The size of the Ilizarov frame is such that it would not be practicable to lengthen two lower limbs simultaneously. The treatment requested by Mr Harris would have required at least two separate surgical procedures and about twenty months of continuous treatment during most of which he would have had one or other leg in a frame.

Dr Bellemore was content to address the leg length discrepancy by the Ilizarov method, but initially did not recommend any additional lengthening for the purpose of increasing Mr Harris’ height. Mr Harris accepts that Dr Bellemore tried to discourage him from that course. After commencing the treatment, however, Dr Bellemore embarked on a course towards lengthening both legs by five additional centimetres (not eight, as sought by Mr Harris). The initial osteotomy of the right femur and fixation of the limb with an Ilizarov frame took place on 4 November 1996. By 10 December 1996, distraction of two and a half centimetres had been achieved. The decision was then taken by Mr Harris and Dr Bellemore to continue lengthening the right limb beyond the three centimetres required to achieve legs of even length. From that point Mr Harris was, for all practical purposes, committed to having the procedure repeated on the left limb.

At the time he first consulted Dr Bellemore, Mr Harris also suffered from a varus deformity of the right knee, also as a result of his childhood injuries. A varus deformity is a variation from the normal alignment of the limbs as viewed from front to back, such that the lower limb is at an angle (like a pendulum) instead of being straight. Dr Bellemore acknowledges that Mr Harris’ varus deformity may have been able to be corrected while the limb was being lengthened if he had used an Ilizarov frame fitted with hinges. An alternative to the use of hinges was to fit a particular kind of washer, known as a conical washer, to each rod on the frame, giving it greater flexibility. In his initial evidence in the proceedings, Dr Bellemore stated that he had used conical washers on Mr Harris’ frame. Ultimately, however, he acknowledged that he had not fitted either hinges or conical washers to the frame.

As a result of Dr Bellemore’s failure to use either hinges or conical washers on the Ilizarov frame, Mr Harris later required a surgical correction of the varus deformity. In May 1997, Dr Bellemore undertook a revision osteotomy of the right femur (the second osteotomy) for that purpose. That procedure resulted in at least two unintended complications. First, during the procedure, Mr Harris’ femoral artery was inadvertently severed. In addition, following the procedure, the femur did not rejoin in perfect alignment at the site of the osteotomy, with the result that there is now a “posterior displacement” or step in the bone at that point. Dr Bellemore admits that his failure to fit either hinges or conical washers to the Ilizarov frame constituted a breach of his duty of care to Mr Harris and that, as a result, he is liable to Mr Harris for the consequences of the second osteotomy.

That, however, is by no means the end of the present case. Mr Harris contends that Dr Bellemore was negligent in many other respects, including in undertaking the bilateral leg lengthening procedure at all. He claims that, as a result of the treatment provided to him by Dr Bellemore, he suffers from a number of physical disabilities as well as an incapacitating psychiatric disability which has rendered him totally unfit for work for the rest of his life. Dr Bellemore denies those further allegations. ISSUES RAISED FOR THE COURT’S DETERMINATION

Before identifying the issues raised by the pleadings for the Court’s determination in respect of those contentions, it is appropriate to record some of the history of the litigation. The proceedings were commenced in the District Court on 3 November 1999. Over the following nine years, Mr Harris changed solicitors several times. His present solicitor, Mr Kelly, who appeared for Mr Harris at the hearing, is the fifth solicitor on the record. In addition to the many different lawyers who have advised Mr Harris, there have been many doctors treating him and many experts retained by each party.

The pleadings bear the scars of those events. The statement of claim was amended several times during the hearing of the proceedings, most recently to accommodate Dr Bellemore’s admission of breach of duty of care referred to above (made only after the hearing had commenced and been adjourned part heard). Notwithstanding a series of attempts on Mr Kelly’s part to refine the cumbersome and repetitious pleadings he inherited, so as to reflect the real issues remaining to be determined, the final version of the statement of claim (the second further amended statement of claim filed in Court on 6 May 2009) remains a difficult document, in parts obscuring rather than elucidating the real issues in dispute.

In that context, after each party had closed his case, I reluctantly acceded to an application by Mr Kelly for an adjournment to prepare written submissions, but requested the parties to direct their submissions to common headings based on agreed issues (T1244.5; see also T1027.9). Regrettably, that did not occur. Counsel for Dr Bellemore submitted a list of “proposed questions for the trial Judge” to Mr Kelly, and later supplemented it at his request, but that list was not then adopted in the written submissions prepared on behalf of Mr Harris. Mr Kelly provided the plaintiff’s proposed questions for the trial Judge on the last day of the hearing, after the parties’ written submissions had been distributed and after the completion of closing submissions on behalf of Dr Bellemore.

The questions proposed by Mr Kelly supplemented those addressed on behalf of Dr Bellemore but were not addressed in terms in the plaintiff’s submissions. The lack of clarity in the plaintiff’s pleadings and the failure within the plaintiff’s camp to co-operate in the process of addressing submissions to common, agreed questions (a process I had foreshadowed and attempted to advance in directions made before the commencement of the hearing) have unduly complicated the Court’s task.

Taking what I hope is the simplest approach, I have adopted the form of questions proposed on behalf of Dr Bellemore, identifying my consideration of any additional questions raised by Mr Kelly or on the pleadings where appropriate. CREDIT ISSUES

Each of the parties mounted a substantial attack on the credit of the other. Submissions were also directed to the reliability of evidence given by a psychiatrist retained on behalf of Dr Bellemore, Dr Lisa Brown, and evidence given by the plaintiff’s mother, Mrs Doreen Harris. The submissions put in respect of Dr Brown and Mrs Harris are discussed in the context of specific issues considered later in this judgment. Dr Bellemore

It was submitted on behalf of Mr Harris that Dr Bellemore’s evidence should not be accepted in relation to particular issues or generally where it is in conflict with the evidence of Mr Harris. The basis for the submission was Dr Bellemore’s steadfast assertion, from which he ultimately recanted, that he had fitted conical washers to the Ilizarov frame fixed to Mr Harris’ leg. Mr Kelly submitted (in effect, if not in terms) that Dr Bellemore’s initial evidence on that issue could not have been honest. In order to analyse that submission, it is necessary to understand the significance of the conical washers.

As already noted, when Mr Harris first consulted Dr Bellemore, he had a varus deformity in the right knee. An Ilizarov frame of straight design can nonetheless address such a deformity, while lengthening the limb, by the method of differential distraction, that is, by distracting one side of the frame at a greater rate than the other. That method, however, has the undesirable corollary of placing parts of the frame under greater strain. That can be avoided if the frame is constructed so as to have a form of pivot, using either hinges or conical washers.

In a statement served shortly before the commencement of the hearing, Dr Bellemore stated: “… I had recognised the presence of a varus deformity pre-operatively and it was my intention to correct this by differential distraction, coupled conical washers were applied to the distal ring to facilitate the correction. The use of coupled conical washers allowed for angular correction of up to 15%. The use of hinges would have been an alternative means of correcting the varus deformity and I would have adopted this course had the varus deformity been more severe.”

Mr Harris said in his evidence-in-chief that conical washers were not used on the frame as contended by Dr Bellemore (T65.26-T66.26). That issue had not been specifically addressed in Mr Harris’ written statement served before the hearing, presumably because the only relevant negligence alleged at that stage was the failure to use hinges. The alternative method of using conical washers had not been raised as an issue in the proceedings at that point.

When Dr Bellemore gave his evidence-in-chief, he went so far as to identify what he said were images of conical washers on an x-ray of Mr Harris taken while he wore the Ilizarov frame. By reference to an x-ray taken on 11 February 1997, Dr Bellemore expressed the opinion that a conical washer could be seen on each of the four rods of the frame (Exhibit 10; T302.46).

A substantial amount of time over the first fourteen days of the hearing was occupied with that issue. After Dr Bellemore volunteered the opinion that conical washers could be seen on the x-ray, he was cross-examined up hill and down dale (as it is sometimes put colloquially) by Mr Kelly in relation to that aspect of his evidence. In saying so, I mean no criticism of Mr Kelly, whose tenacity on this issue ultimately produced an admission of liability. Mr Kelly took Dr Bellemore, in turn, to each in a series of x-rays showing the Ilizarov frame. Dr Bellemore consistently maintained that, in his opinion, each x-ray included images of conical washers fitted to the frame (see, for example, T308-310; T320.50; T554.28 and T558-562), albeit with a repeated qualification as to his lack of expertise as a radiologist or radiographer (T314.34; T318.43).

Mr Harris subsequently gave further evidence in which he said that the images in the x-rays identified by Dr Bellemore as conical washers were in fact square nuts affixed to the frame. He later obtained a report from an expert radiologist, Dr Kitchener, the broad effect of which was that Dr Bellemore’s evidence on that issue should be rejected. An outline of evidence was also obtained from Mr Sean Hogan, the designer of a component of the frame (known as a Hogan clicker) stating that there was indeed a version of the clicker in use in 1996 that included a square nut, as described by Mr Harris.

It was after that additional material was served that Dr Bellemore recanted his evidence that he had used conical washers. He explained how he came to his original belief, and his reasons for ultimately accepting that he was wrong, in a further witness statement dated 1 April 2009. In particular, he stated that, until reading the outline of evidence of Mr Hogan, he had had no recollection of the version of the clicker described. He further stated that he would defer to the expertise of Dr Kitchener as to the radiological issue. It was shortly after the service of that statement that Dr Bellemore made his admission of liability in the proceedings.

Mr Kelly placed considerable reliance on the fact that Dr Bellemore’s assertion as to the use of conical washers was made for the first time in his witness statement dated 12 February 2009. The force of that submission lies not in the timing of the provision of the statement itself, which was in accordance with directions of the Court. The service of witness statements so long after the commencement of the proceedings was due in large measure to the many years of delay within the plaintiff’s camp in bringing the matter to a state of readiness for hearing.

As noted by Mr Kelly, however, there are indications that until at least the middle of 2003, Dr Bellemore’s legal team was ignorant of any assertion by him that he had used conical washers on Mr Harris’ Ilizarov frame. A statement of assumptions prepared by the solicitors in about 2002 made no mention of conical washers. Further, an expert report dated 23 June 2003 by Dr Tetsworth (retained on behalf of Dr Bellemore) was critical of the use of differential distraction to address the varus deformity and stated “either conical washers or formal hinges would have been a more effective method”.

It seems unlikely that, if Dr Bellemore had a clear recollection in 2003 of using conical washers, Dr Tetsworth’s assumption to the contrary would have been permitted to stand uncorrected. In that context, Dr Bellemore’s confidence at the hearing that he used conical washers, and his manifest irritation at Mr Kelly’s tenacious pursuit of the contrary proposition, are surprising.

Separately, Mr Kelly submitted that the Court would reject the suggestion that Dr Bellemore’s original evidence (that he had used conical washers) was a matter of “honest confusion”. Mr Kelly noted that Dr Bellemore had gone beyond merely purporting to identify objects on the x-ray images as conical washers and had gone so far as to give an account of how the processes of radiology could produce the result that part of the component in question (a metal nut that holds the washer in place) was not visible on the x-rays (T308.14-T309.3). Mr Kelly submitted the evidence given by Dr Bellemore on that issue was nonsense and that I should infer that the view first expressed by the doctor was not a view he genuinely held.

I have given careful consideration to the reasons explained by Dr Bellemore in his statement of 1 April 2009 for forming the erroneous belief that conical washers were used, and I have measured that explanation against my own assessment of Dr Bellemore as a witness. On balance, I accept that Dr Bellemore genuinely believed that the evidence he gave was true. Further, I accept, as submitted by Mr Bozic, who appeared with Mr Muston for Dr Bellemore, that Dr Bellemore’s correction of the error, once accepted by him, reflects well upon his credit.

I do think, however, that the confidence with which Dr Bellemore adhered to his initial belief is a matter that invites careful scrutiny to other aspects of his evidence. Further, whilst I do not accept that Dr Bellemore’s evidence was dishonest, it does appear (from the evidence subsequently given by Dr Kitchener) that Dr Bellemore took it upon himself to speak well outside his expertise when explaining the visual absence of the metal nuts.

In fairness to Dr Bellemore, it must be observed that, through no fault of his own, he has been called upon to defend the present allegations against him thirteen years after the events in question. The plaintiff’s delay in the prosecution of his claim has deprived all of the witnesses of the benefit of recent recollection. I have approached Dr Bellemore’s evidence with all of those considerations in mind. I accept without reservation that he is honest, but perhaps unduly reluctant to analyse or accept the potential frailty of his recollection of such old events. Mr Harris

It was submitted on behalf of Dr Bellemore that the Court would not accept Mr Harris’ evidence on significant factual issues unless it is corroborated by other acceptable evidence, is consistent with what might be regarded as the objective probabilities, or is against his interest.

Some of the reasons offered in support of that submission amounted to little more than the accepted wisdom that human perception is often coloured by self-interest and a reluctance to admit fault. Those observations apply with equal force to Dr Bellemore.

I accept, however, that there are features of the present case that invite a careful approach. It is difficult to explain why that is so without descending to the detail of the factual issues I have to determine. Accordingly, I have addressed some of the so-called “credit issues” that are of significance to me in the context of the specific factual questions to which they appear to relate. Nonetheless, some general observations may be made.

First, as submitted on behalf of Dr Bellemore, I accept that Mr Harris has been obsessively fixated with these proceedings for many years and has “entered the fray” in relation to technical and legal aspects of the case. He has evidently come to understand the medical issues in the case very well and, in my view, accommodated that understanding in his evidence. Mr Kelly’s submissions questioned whether, even if that is so, there is any indication that Mr Harris’ memory has become “tainted by the case”. For my part, I have no doubt that memory (or the description of it) is profoundly influenced by perspective and it is very clear, in my view, that Mr Harris perceives his present circumstances with telescopic focus on the conduct of Dr Bellemore.

Secondly, I accept that Mr Harris’ written statement must be read as a collaborative work that has evolved over time, perhaps with input from Mr Harris’ solicitors (T126-127; T189.34). It draws on reconstruction based not only on the x-rays available to Mr Harris while he was in Russia but on the medical knowledge he has acquired since being treated by Dr Bellemore.

Finally, I accept that Mr Harris gave evidence on certain issues that was inherently improbable or appeared to be contrived to avoid any concession against interest (for example, that at the age of 30, he did not know what a nerve was or what “vascular” meant: T105.5; T105.26; T 124-126). In light of Mr Harris’ education and evident intelligence, some of his answers were very strange.

More importantly, for reasons addressed in detail below, I have no doubt that Mr Harris has exaggerated aspects of his claim, whether consciously or subconsciously. In particular, as explained later in this judgment, I am satisfied that he has overstated the extent of his disabilities and that a great deal of his present inactivity is self-imposed. Whether that is due to depression or to “malingering” (or some other dysfunctional personality trait) may not matter, for reasons explained below.

Conversely, however, I formed the impression that when it came to the detail of his treatment, Mr Harris was at pains to give an accurate account of events. As to the use of conical washers, he was right and Dr Bellemore’s recollection was wrong. Accordingly, I do not think it is possible, or sensible, to attempt to reduce the many complexities of Mr Harris’ experience of life to a blanket “credit finding”. The approach I have taken is to assess each issue on the evidence with care, but with no preconception one way or the other as to Mr Harris’ credibility. THE PLAINTIFF’S SUITABILITY FOR THE SURGERY Question 1: “Was the plaintiff a suitable candidate for the proposed procedure (ie: should the plaintiff have ever been offered the surgery?)”

The negligence alleged by Mr Harris against Dr Bellemore is particularised in paragraph 32 of the second further amended statement of claim. By particulars 1(a), 2(a) and 3(a), Mr Harris alleges that it was negligent of Dr Bellemore to carry out bilateral leg lengthening surgery at all; that it was negligent to carry out such surgery when the plaintiff in his pre-operative condition was an “unsuitable candidate” for such surgery and that it was negligent to fail to decline to carry out such surgery.

It should be noted at the outset that there is a legal assumption embedded in those contentions, namely, that the issue whether particular treatment should be offered to a particular patient is a question properly governed by the law of negligence. In my view, for reasons explained below, the correctness of that assumption as an unqualified proposition may be doubted.

In any event, question 1 is directed to those issues. The “plaintiff’s proposed questions for the trial Judge” posed the additional question whether Mr Harris should ever have been offered the surgery in respect of a three centimetre lengthening of the right femur. However, there was little, if any, evidence to support a contention that Dr Bellemore should not have offered to perform the Ilizarov procedure on the right leg so as to correct the leg length discrepancy. The principal contest at the hearing was whether, once that had been achieved, the lengthening should have been continued for purposes characterised by some as “only cosmetic”.

The plaintiff’s proposed questions for the trial Judge posed the further additional question, “what tests or investigations should have been undertaken by the defendant to assess this?” For the reasons explained below, I think that is a false issue. Factual context: some aspects of Mr Harris’ medical history

It was submitted on behalf of Mr Harris that the surgery should not have been offered to him and should not have been undertaken by Dr Bellemore “on any reasonable evaluation of the potential risks and the likely benefits”.

In order to assess those contentions from a factual perspective, it is necessary to consider the initial consultations between Mr Harris and Dr Bellemore in greater detail. It is also relevant to consider some of Mr Harris’ earlier medical history.

There was a considerable area of common ground between the parties as to the medical history, which is well documented. As already noted, by the time he was fifteen (in 1981), as a result of the injuries suffered in his childhood accidents, Mr Harris had a leg length discrepancy of over four centimetres (the left leg being longer than the right). On 15 December 1981, his orthopaedic surgeon, Dr Harbison, attempted to address the discrepancy by surgically shortening the left leg, but the differential growth continued.

It appears that Mr Harris had leg-lengthening surgery in contemplation as early as 1983. He was then aged seventeen and the discrepancy between the lengths of his legs had reached seven centimetres. He had already had his left leg shortened once. On 21 December 1983, Dr Harbison reported to Mr Harris’ general practitioner, Dr Tinning, that he had booked Mr Harris in for a second operation to shorten his left femur the following January. The letter stated: “He asked me about leg lengthening but I told him that it was too hazardous and would not be possible to get his legs equal by that means” (Exhibit 17, page 313). It was as a result of the two leg-shortening operations carried out by Dr Harbison that Mr Harris was left some eleven centimetres shorter than his twin.

In 1988, Mr Harris consulted Dr Haertsch, a plastic surgeon, seeking surgical revision to improve the appearance of some scars (Dr Tinning’s notes, Exhibit 17, page 316).

In 1989, Mr Harris returned to discuss the issue of leg lengthening with Dr Harbison after learning about the Ilizarov procedure through the media. On 1 December 1989, Dr Harbison wrote to Dr Tinning reporting that Mr Harris: “came back to see me for a discussion regarding the possibility of lengthening both his lower limbs. He is functioning perfectly normally but is self conscious thinking that he limps and being particularly aware that he is much shorter than his twin brother. I discussed with him at some length the pros and cons of lengthening and I hope talked him out of his idea of having both legs lengthened. This is far too risky a procedure to be justified for nothing more than a cosmetic self-image problem.” (Exhibit 17, page 315).

Mr Harris remembered Dr Harbison saying the procedure was risky, but did not remember the particulars of the risks referred to. However there was one aspect of the consultation he says he will never forget (T742.19). He had explained to Dr Harbison his aspiration of having both legs lengthened and the reasons why. According to Mr Harris, Dr Harbison replied “I am going to throw a bucket of water on your fire of expectations”. Mr Harris gave evidence at the hearing that this was “very disappointing” but that he took Dr Harbison’s advice and got on with his life.

In 1991, Mr Harris (then aged 25) consulted a general practitioner, Dr Yuen, complaining of hair loss and referring to his twin brother (Dr Yuen’s notes, Exhibit 17, page 2). Two years later, he consulted a cosmetic surgeon seeking treatment for “stucco keratoses”, which are skin lesions that are benign but apparently unsightly (Dr Tinning’s notes, Exhibit 17, page 317).

By the time he turned thirty in April 1996, Mr Harris stated that he had become “very disheartened with the outcomes of Dr Harbison’s treatment”. It was then that Mr Harris decided to contact a surgeon who practiced the Ilizarov procedure “to see what could be done to improve the situation”. In due course, Dr Bellemore was recommended to Mr Harris when he called the Australian Orthopaedic Association.

Mr Harris described himself as being physically active during that year. He was doing intensive exercise in the gym in sessions of one hour, which included weights, running, skipping and “cardio-boxing”. He stated that those activities were achievable without any physical problems. At one session, however, he “overdid things”, lifting a whole stack of weights with a resistance of approximately two hundred pounds on a leg press machine, which resulted in some discomfort to the right knee. He consulted his general practitioner, Dr Tinning, who referred him to an orthopaedic surgeon, Dr Pinczewski.

Dr Pinczewski examined Mr Harris in March 1996. He reported that Mr Harris had a ‘varus alignment’; was short legged on the right side and had a decreased range of movement and ligamentous deficiency in the right knee (Exhibit A, page 3).

Mr Harris stated that Dr Pinczewski had concluded that “the outlook for [his] right knee was not good taking into account the ligamentous laxity, the leg length discrepancy and varus deformity” (Exhibit O, statement dated 5 February 2009, paragraph 40). Mr Harris stated that he had not, until that point, been aware that there was a residual varus, as he thought that Dr Harbison had corrected it.

If Dr Pinczewski thought that the outlook for Mr Harris’ right knee was “not good”, he did not say so in his report to the general practitioner, and he certainly did not recommend a surgical solution: “Weighing up all considerations, Paul is coping quite well with his ligamentous deficient knee and in view of the complexities of any reconstructive surgery, I have advised him that I do not think there is a surgical option at this time. Both ligamentous reconstruction and any form of osteotomy would be fraught with uncertainty. I hope that this has been of some help to Paul; I am happy to send a copy of this correspondence to other orthopaedic surgeons who may wish to give a second opinion.”

The leg length discrepancy at that stage was about three centimetres (Dr Pinczewski measured it as two centimetres). A lengthening of the right femur of approximately that amount was accordingly all that was required to correct that condition and the varus. The only reason Mr Harris wanted to have both legs lengthened was to increase his height. Mr Harris’ first consultation with Dr Bellemore

Mr Harris first consulted Dr Bellemore on 9 August 1996. As to their initial conversation, he stated: “I said I was hoping to have treatment to eliminate the leg length discrepancy and also the varus deformity. I also stated that I wanted both legs lengthened to increase my height - because the height difference between myself and my brother bothered me.” (Exhibit O, statement dated 5 February 2009 at page 7.)

There is no dispute that the consultation was a lengthy one, during which Dr Bellemore took a medical history and conducted a physical examination. There is a factual issue between the parties as to whether Dr Bellemore warned Mr Harris as to any of the risks of the procedure during that consultation. That issue is considered below.

Dr Bellemore reported to the referring general practitioner, Dr Yuen, in the following terms: “I have recommended that he have a surgical leg lengthening procedure on the right side, to lengthen the right femur three centimetres thus equalising his leg lengths. It would be feasible to undertake the lengthening of both the right and left femurs to increase his overall height, but this would involve prolonged treatment and I would not favour this option.”

Dr Bellemore recommended during the consultation that Mr Harris discuss his proposed treatment with one of Dr Bellemore’s other patients, who had an Ilizarov frame fixed to his leg at that time. Mr Harris contacted that patient. Their conversation included a discussion of the need to keep the pin sites clean so as to avoid infection.

During the initial consultation, Dr Bellemore also asked Mr Harris to watch some videos explaining the procedure, which he did during his second consultation. The second consultation with Dr Bellemore

On 19 August 1996 Mr Harris returned to see Dr Bellemore and “reaffirmed” that he wished to proceed with the leg lengthening procedure on both legs. Mr Harris was at that time employed by BHP as an engineer. He had arranged to have time off work to have the procedure and had been granted extended sick leave for at least six months, apparently being a valued employee. He does not appear to have told his employer that he may require a longer period off work so as to have bilateral limb lengthening surgery for the sole purpose of becoming taller (see T796.30).

Following the second consultation, Dr Bellemore called Dr Harbison to discuss Mr Harris’ medical history. Dr Harbison recommended to Dr Bellemore that he require Mr Harris to undergo a psychiatric assessment. Dr Bellemore made that request of Mr Harris, stating that he “always” obtained a psychiatric assessment of a patient before proceeding with limb lengthening for cosmetic purposes. It is not clear to me whether Dr Bellemore had in fact conducted many limb lengthening procedures for cosmetic purposes at that time, if any (see T606.35). In any event, an arrangement was made for Mr Harris to see Dr David Dossetor, a psychiatrist at the New Children’s Hospital. Consultations with Dr Dossetor

Mr Harris saw Dr Dossetor on 1 October 1996 and again on 8 October 1996. Mrs Harris (the plaintiff’s mother) attended the second consultation.

It was Dr Dossetor’s understanding that the purpose of the evaluation was to assess whether Mr Harris was able to evaluate the risks involved and whether there was any psychiatric co-morbidity that would influence the outcome (T822.27). He gave evidence that he discussed with Mr Harris not only how he would cope with an imperfect result but also the possibility of things going wrong.

That was consistent with the evidence of Mr Harris, who stated: “When I saw Dr Dossetor he asked if I had considered the possibility of things going wrong. I replied no I had not because Dr Bellemore had not raised the issue, however I had learned from [Dr Bellemore’s other Ilizarov patient] of the possibility of a pin site infection. I told him that was a risk I was prepared to take because I would personally be responsible for pin site care at home, and I would enact the infection control procedures to the letter. I was told by Dr Dossetor that in his opinion it was in order to proceed.”

Dr Dossetor also gave evidence that he raised with Mr Harris “other psychological ways of coping with and treating social anxiety which [Mr Harris] should seek and explore rather than pursue a major operation to resolve his social anxiety”. Dr Dossetor could not recall exactly what he had said on that issue. During cross-examination, he said (at T823.19): “I know in some cases I have talked about losing a leg. Whether I did that in this case or not, I can’t tell you. But I think that that line suggests I was talking about adverse outcomes, not just - well, it wasn’t for me actually to evaluate the risk of an adverse outcome either, it was for me to say that ‘things can go wrong, have you taken that on board?’ And actually to make sure they address that with the responsible surgeon.”

Dr Dossetor wrote a lengthy report to Dr Bellemore which concluded with his opinion that, despite a degree of social anxiety, Mr Harris was “of sufficiently good character, intellect and adjustment to appraise the risks versus benefits of the ‘cosmetic’ 5cm of the proposed operation under consideration to be able to make a responsible and informed judgment over whether to consent to the operation.” On that basis, he wrote to Dr Bellemore stating that he felt Mr Harris was a “reasonably good operative risk”.

It was Dr Dossetor’s recollection at the hearing that, during the discussion about “things going wrong”, Mr Harris indicated that at that stage no orthopaedic surgeon had talked to him about things going seriously wrong (T830.11). It appeared from Dr Dossetor’s evidence that he expected that the process of obtaining Mr Harris’ consent to the procedure was to occur after his evaluation (see T822.27 and T830.19), but whether that was due to anything said to him or only an assumption he made is not established. Mr Kelly relied on that evidence to support Mr Harris’ claim that he had received no warnings from Dr Bellemore at that point. In my view, that overstates its effect. I accept that what Mr Harris said to Dr Dossetor suggests that Mr Harris did not then perceive it to be a risk of the procedure that things might go “seriously wrong”, but it is impossible to know now whether that is due to an absence of explanation or to the way in which Mr Harris perceived whatever he had been told. The third consultation with Dr Bellemore

Mr Harris returned to see Dr Bellemore on 9 October 1996, the day after his second consultation with Dr Dossetor. According to Dr Bellemore, Mr Harris stated that he was adamant that he wanted to have his right femur lengthened by eight centimetres and his left femur lengthened by five centimetres (statement dated 12 February 2009, Exhibit 5, paragraph 53). Mr Harris signed a consent form on that day for the procedure described as “right femoral lengthening and deformity correction with Ilizarov fixation”. The consent form does not list the specific risks which Dr Bellemore alleges he described to Mr Harris during their first consultation on 9 August 1996.

Dr Bellemore stated that, at that point, his plan of management was to lengthen the right femur by three centimetres and then to reassess the situation. He stated “if the right femoral lengthening was proceeding without difficulty or complications and if it was still his desire, then I would continue to lengthen the right femur until any difficulties prevented further safe lengthening or eight centimetres was reached, whichever arose first” (Exhibit 5, paragraph 57).

It was Dr Bellemore’s evidence that he had a conversation broadly in those terms with Mr Harris. He stated that he told Mr Harris that the lengthening achieved would depend on his clinical course and that the lengthening process would cease if any complications arose that prevented further safe lengthening. According to Dr Bellemore, Mr Harris agreed to proceed on that basis.

Mr Harris did not accept that a discussion in those terms took place before the initial surgery. He did, however, remember a conversation at some point in which Dr Bellemore said that he was going to “reach” three centimetres in five days time and that a decision had to be made as to whether to stop at three centimetres or to keep going (T187.45). On the strength of that evidence I accept, as submitted by Mr Bozic, that it is not strictly accurate to say of Dr Bellemore that he offered, from the outset, an eight centimetre lengthening of the right leg to be followed by a five centimetre lengthening of the left leg. Was there a duty to decline to treat Mr Harris?

It was common ground that, beyond three centimetres in the right leg, the only purpose of the leg lengthening was to increase Mr Harris’ height. The case put against Dr Bellemore was that it was negligent to offer such surgery because its likely benefits were not warranted by the potential risks “on any reasonable evaluation”.

The submissions put on behalf of Mr Harris on that issue made at least two implicit assumptions. First, they assumed the existence of an empirical measure of the likely benefits of the treatment, implicitly attributing a low value to procedures that are “merely cosmetic”.

Secondly, they assumed the existence of a legal duty on a surgeon to determine, by that measure, what services should be provided in response to a patient’s request for treatment. The additional question posed on behalf of the plaintiff (as to what tests or investigations should have been undertaken by Dr Bellemore to assess Mr Harris’ suitability for the procedure) is directed to that issue.

It is important to note that it was no part of Mr Harris’ case that he was unsuitable for the surgery by reason of any special psychiatric vulnerability. Mr Kelly expressly disavowed reliance on such a claim (see my judgment given 5 March 2009 and T512). Patient autonomy in the context of cosmetic surgery

It was submitted on behalf of Dr Bellemore that to analyse the issue whether the surgery should have been offered by reference to a comparison of the risks and notional objective benefits of purely cosmetic surgery flies in the face of the High Court’s acceptance of patient autonomy as the paramount consideration in determining what is the appropriate standard of care.

Mr Bozic characterised the issue (whether the surgery should have been offered) as essentially one of consent, which is relevant to an action framed in trespass or battery, not in negligence: Rogers v Whitaker [2002] HCA 58; 175 CLR 497 at 490.5. On that analysis, it may be contended that there is a limit to the kinds of procedure in respect of which a patient can provide consent, even after being warned of the material risks: see generally the discussion in Ian Kennedy and Andrew Grubb, Principles of Medical Law , (1998) Oxford University Press at [3.28]-[3.33]. However, assuming that is the legal position, I do not think this case falls within the class of procedure to which consent may not be given. So much was effectively acknowledged in the plaintiff’s written submissions where Mr Harris’ decision was described as “perhaps not a mainstream decision” but one which was “not undertaken irresponsibly”. In any event, Mr Harris’ claim was not put as a claim in trespass or battery.

In the absence of any complaint by Mr Harris that he was an unsuitable candidate for the surgery by reason of any special psychiatric vulnerability, the question whether Dr Bellemore should have offered the surgery, in my view, is outside the realm of the tort of negligence. As submitted by Mr Bozic, a premise of this field of jurisprudence is patient autonomy, which the High Court has accepted as a critical consideration in determining what is the appropriate standard of care.

Thus, the High Court in Rogers v Whitaker (at 487) approved the principle adopted by King CJ in F v R (1983) 33 SASR 189 (at 192 to 193) that it is for the courts (and not the medical profession) “to adjudicate on what is the appropriate standard of care after giving weight to ‘the paramount consideration that a person is entitled to make his own decisions about his life’”.

It must be acknowledged that those principles received approval in Rogers v Whitaker in the specific context of determining the extent of a doctor’s duty to provide information and advice, which is fundamentally different from the field of diagnosis and treatment (see generally the discussion in Rogers v Whitaker at 489). However, the primacy of patient autonomy among the matters that determine the scope of a doctor’s duty of care is not confined to that field, and has explicitly been acknowledged in the field of cosmetic surgery.

In Tan v Benkovic [2000] NSWCA 295, the Court of Appeal allowed an appeal by a cosmetic surgeon. One of the findings of the trial Judge was that the surgeon had paid “inadequate attention … to the threshold matter of whether [the patient] was a psychologically appropriate candidate for a cosmetic plastic surgery procedure”. In respect of that finding, Mason P stated at [29] (Stein and Heydon JJA agreeing at [51] and [52]): “Nevertheless, I feel bound to record a sense of unease with these aspects of the background findings. After all, the duty of care in Rogers is premised on the notion of the patient’s autonomy, albeit that there are patients and patients and that different proposed medical procedures call forth different matters that ought to be disclosed by the competent medical practitioner”.

His Honour went on to express the view that the medical profession is best placed to set its own standards as to appropriate professional practice in respect of so-called “elective” procedures and that courts should not rush into areas in which subjective professional judgments predominate. His Honour concluded, at [32], “whether surgery is ‘necessary’ or ‘unnecessary’ has no direct bearing upon whether it is performed competently or whether pre-surgical warnings satisfied the Rogers v Whitaker duty.”

On the basis of that analysis, it may be accepted that the question of Mr Harris’ suitability for the surgery informs the content of Dr Bellemore’s duty to provide information, but it does not, in my view, sound in any duty to decline the treatment sought. The present case must be approached on the basis that Mr Harris was entitled, and indeed required, to make his own decision as to whether to proceed with the surgery, the critical issue in respect of that decision being the alleged failure to warn: cf Tan v Benkovic at [27]. Mr Kelly submitted that Tan v Benkovic was a very different case, since Ms Benkovic in effect sought damages for an outcome that would have arrived in due course with the ravages of time, but the principles stated by Mason P are nonetheless sound.

Against that discussion, in my view, the additional question posed by Mr Kelly (as to what “tests or investigations” should have been undertaken to assess Mr Harris’ suitability for the treatment) does not arise. Was the proposed surgery “only cosmetic”?

In case the foregoing analysis is wrong, it is appropriate to consider the matters relied upon by Mr Harris as to whether he was a “suitable candidate” for the surgery. As already noted, it was a premise of Mr Harris’ claim on this issue that the surgery was only for cosmetic purposes.

Mr Kelly noted that Dr Bellemore purported, in his evidence in the proceedings, to have made a pre-operative assessment of Mr Harris as a man suffering from “severe psychosocial disability”, speaking of him as a person “whose life was intolerable” (T587.50). Mr Kelly submitted that I should find that that was not Dr Bellemore’s view as at 1996.

Whilst there is certainly a deal of objective evidence that Mr Harris was very unhappy about his height, I accept that Dr Bellemore’s evidence as to the extent to which he perceived or diagnosed that to be a psychological disability before he embarked upon the surgery may well have been strengthened by hindsight analysis. As noted by Mr Kelly (at T1326), Dr Bellemore appeared to adopt the word “intolerable” to describe Mr Harris’ life before the surgery after he heard it used during the proceedings rather than in any pre-surgical assessment (T507.11). That said, it is clear that Dr Bellemore rightly assessed the issue as one of significant concern to Mr Harris.

Ultimately this is an evaluative judgment, but clearly Mr Harris was quite fixated on the notion that his life would improve if only he could be made as tall as his brother. He conveyed that message to Dr Bellemore in the clearest terms. It is doubtful whether it is accurate, in those circumstances, to characterise the benefits each perceived as “only cosmetic”, whatever that means. Expert evidence as to whether the surgery should have been offered

Other factors identified in the pleadings in support of the contention that the surgery should not have been offered were the state of Mr Harris’ legs due to his prior surgery and ongoing disabilities; his “age and station in life” and his minimum functional impairment; the contention that the surgery was risky and “on the outer frontiers of Ilizarov surgery” and the prospect of not achieving a symmetrical outcome.

Those issues were addressed by a group of orthopaedic experts referred to in the proceedings as the liability experts. For a variety of reasons that no longer matter, the liability experts did not confer before giving evidence in the proceedings (as contemplated in Practice Note SC CL 7), but their oral evidence was taken concurrently.

The plaintiff’s principal liability expert was an English orthopaedic surgeon, Professor Saleh. It was Professor Saleh’s opinion that an Ilizarov surgeon of ordinary skill and competence as at 1996 would not have attempted the additional lengthening (beyond three centimetres in the right leg) in 1996 (T1042.47-T1043.14).

However, leaving aside different views as to the appropriateness of offering the Ilizarov procedure as so-called cosmetic surgery, the clinical approach adopted by Dr Bellemore was accepted by the other four experts as one which was available to an Ilizarov surgeon practicing in 1996: see evidence of Dr Tetsworth (T1039.40); Mr Simonis (T1040.18); Associate Professor Donnan (T1038.36 and T1044.1) and Mr Torode (T1045.30).

Mr Simonis (retained on behalf of the plaintiff) conceded that although he personally would not have taken the risk (and did not know anyone on the reconstruction side in the United Kingdom who would), there were surgeons in other countries who would have offered the surgery.

Associate Professor Donnan, called on behalf of Dr Bellemore, described himself as “sitting on the fence” on the issue whether he would have undertaken the surgery, having regard to the existing length discrepancy and the “other issues” that the patient may be presenting with. However, he did not condemn it as surgery that would not have been undertaken by a prudent and reasonable surgeon. Conclusion

As already noted, there is little issue as to the decision to lengthen the right femur by three centimetres. I am satisfied that it was not negligent of Dr Bellemore to offer that procedure to Mr Harris. As submitted on behalf of Dr Bellemore, all of the experts on liability accepted that proposition (T1034.1-T1036.12; see also T1248-T1252 as to Mr Kelly’s application to have part of that transcript corrected).

As to the additional lengthening, acknowledging the force of Professor Saleh’s view and his evident eminence and expertise, the weight of opinion to emerge from the concurrent evidence does not satisfy me that a prudent and reasonable orthopaedic surgeon would have declined to offer the surgery in 1996. Accordingly, assuming (contrary to my view) that Dr Bellemore was under a legal duty to determine whether to decline to offer the surgery according to an objective evaluation of its potential risks and likely benefits, I am not satisfied that it was negligent of him to offer bilateral surgery for the purpose of increasing Mr Harris’ height. WARNINGS

Questions 2, 3 and 4 are directed to an alleged breach of the duty to warn. Before considering those questions, it is necessary to define the proper scope of the issues raised.

The duty owed by Dr Bellemore was to warn Mr Harris of a material risk inherent in the proposed treatment. As noted by Gummow J in Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [61], the first task is to identify the risk in question. His Honour stated that, in the context of a claim in medical negligence, the relevant risk is the possibility that the proposed treatment will result in the injury that in fact occurred. That is the risk in reference to which the next question (whether the risk was material) is to be determined.

Gummow J explained the importance of identifying the content of the risk, including “the circumstances in which the injury can occur, the likelihood of the injury occurring, and the extent or severity of the potential injury if it does occur” (at [69]). If the nature and severity of the complications that should have been foreseen by the surgeon are not identified with precision in the evidence, it is difficult for the Court to determine whether the risk was “material” in the sense discussed in Rogers v Whitaker . It is also difficult to determine the question of factual causation in the absence of such information.

The relevant risks were not identified with that measure of specificity in the present case, either in the pleadings or in the evidence. The breaches of the duty to warn particularised in paragraph 32 of the second further amended statement of claim are: (a) failing to give the plaintiff full and complete warning of the dangers and risks involved in such surgery, including a resulting above knee amputation in the event of complications (paragraph 4(a)); (b) failing to advise the plaintiff that he was an unsuitable candidate for the surgery (paragraph 5(a)); (c) failing to warn the plaintiff that the Ilizarov treatment was high-risk surgery (paragraph 16(a)c); (d) failing to warn the plaintiff of any serious complications including complications of the bone, such as the bone not forming or premature consolidation (paragraph 16(a)d); (e) failing to warn the plaintiff of complications with anatomical structures such as arteries, veins, nerves, hamstrings, muscles etc which could be stretched during the distraction procedure causing pain and restriction of movement in the leg and knee joint (paragraph 16(a)e).

The parties accepted that it is no longer necessary to consider an additional allegation of failure to warn in respect of the second osteotomy, in light of Dr Bellemore’s admission of liability for the consequences of that procedure (T1271.38).

As to some of the risks referred to in the particulars, there is no suggestion that the risk in fact materialised (such as the risk of “above knee amputation in the event of complications” and the risk of “bone not forming”). Presumably the basis for those contentions is that, if such additional information had been given, a different choice would have been made (and the injuries thereby avoided). That is inconsistent with the approach to identifying the relevant risk identified by Gummow J in Rosenberg v Percival at [61] (set out above); see also Chappel v Hart [1998] HCA 55; 195 CLR 232 at [66]-[67] (also per Gummow J). A patient is entitled to make the choice whether to undergo particular treatment on the basis of relevant information and advice. However, the notion that the risk against which a doctor has a duty to warn is the risk of a wrong choice was explicitly rejected by Gummow J, as was the proposition that causation of the injury that did occur is established where the patient would have been deterred by a warning as to the possibility of an injury that did not: Rosenberg v Percival at [83].

In any event, although those allegations were left to stand on the pleadings, and maintained by Mr Kelly in his closing address (T1330), the case was not conducted on that basis. In particular, no evidence was adduced from Mr Harris as to what he would have done had he been warned of particular possibilities that did not eventuate. Those allegations can therefore safely be put to one side.

A separate complexity is that, as to some of the complications that in fact occurred (such as pin breakages) there was no expert evidence as to the nature of the risk or whether it ought to have been known (and therefore considered for inclusion in a warning) by an Ilizarov surgeon in 1996. The allegation was effectively put at the broad level of failure to give a “full and complete warning” of all risks.

The evidence reflected that approach. The evidence given by Mr Harris was (Exhibit O, statement dated 9 February 2009 at paragraph 26): “If I had known that there was a significant risk of the complications that have in fact occurred, it is my belief that I would not have gone ahead with surgery.”

Similar evidence was given in cross-examination by reference to “the problems that I have got now” (at T121.7). Mr Harris expanded further upon the reasons for that, referring to two operations he had as a child (unrelated to the two motor vehicle accidents) from which he still has problems (T124.12).

It is difficult to give any content to that evidence, since there is a substantial factual dispute between the parties as to what complications or problems “have in fact occurred” as a result of Dr Bellemore’s treatment of Mr Harris.

The experts were asked to list all of the risks of the procedure, but there was no attempt made on behalf of the plaintiff to analyse that evidence by reference to the complications he alleges have in fact occurred. The proper approach was for the plaintiff to identify the relevant risks clearly in the pleadings and in the evidence, in accordance with the principles stated by Gummow J in Rosenberg v Percival . Regrettably, however, I do not think the failure to do so relieves me of that task.

The critical issue is whether the evidence identifies any risk inherent in the procedure (that should have been foreseen by Dr Bellemore: Rosenberg v Percival at [63] page 455) that did in fact materialise and as to which there was no warning. If so, it is necessary to consider whether that risk was material. It is against that analysis that questions 2 to 4 must be considered. Question 2: “Was the plaintiff given any warnings about the risk of leg lengthening procedure prior to undergoing the surgery on 4 November 1996?”

Mr Harris stated that Dr Bellemore did not at any stage inform him of any risks or complications that may arise during the leg lengthening procedure. During cross-examination, he gave the following evidence: “Q. Your evidence, I take it, is that at this consultation and indeed all the consultations prior to that first operation, there was not one single word said about any risk associated with the procedure; is that right? A. There was a discussion with regard to the consent form and the risk during the third consultation. That's all. Q. In terms of Dr Bellemore identifying for you specific risks of the procedure, you say, do you, that there was absolutely not one word said? A. That's right.”

Notwithstanding those answers, Mr Harris appeared to concede that there was some discussion with Dr Bellemore of the risk of pin site infection (T98.13), although he later asserted that he learned of that risk only from his discussions with the other Ilizarov patient to whom Dr Bellemore referred him (T711.20). He appeared to remember some discussion about soft tissue and the fact that “the rest of the leg grows” (T99.19) and some discussion of the need for physiotherapy. He also accepted that there was discussion regarding the possibility of a blood transfusion (T182.40).

Dr Bellemore gave evidence of a detailed conversation during the first consultation in which he says he informed Mr Harris of five categories of risk associated with the procedure.

In broad summary, the matters as to which Dr Bellemore said he provided information to Mr Harris were, first, the risk of infection occurring at some of the pin sites, which he described as a hundred percent chance. Secondly, he referred to a risk relating to muscles, described as the risk that the growth of the muscle may not be as rapid as the growth of the bone, which could result in contractures of the involved muscles and associated stiffness requiring physiotherapy. Thirdly, he described risks associated with nerve damage, where nerves may be injured during the surgery or during the distraction phase of the bone lengthening resulting in weakness or numbness of a transient or permanent nature. Fourthly, he described a risk of suffering a vascular injury, either due to direct trauma during surgery or during the distraction phase, resulting in impaired circulation. Finally, he referred to a risk of bone fracture if the Ilizarov frame is taken off too early, which he said had occurred in some patients of his in the past.

There is no contemporaneous record to corroborate Dr Bellemore’s evidence on that issue. Dr Bellemore stated that it was not his invariable practice at that time to record details of discussions with patients or advice provided during consultations. He stated, however, that at that time he felt that leg lengthening procedures (including the Ilizarov technique) were amongst the most risky surgical procedures he undertook, having a high complication rate. For that reason, he said, it was his practice to take great care in setting out for a patient the various risks and complications which might be encountered.

Dr Bellemore also had a specific recollection of attempting to dissuade Mr Harris from proceeding with the bilateral lengthening and of advising him, in that context, that if he were to have both legs lengthened, he would need more than one year off work due to the physical nature of his employment as an engineer with BHP working on the factory floor. That aspect of the conversation is corroborated to some extent by a note in Dr Bellemore’s handwriting, which in fact records an estimate of a total of twenty months to lengthen the right femur by eight centimetres and then the left femur by five centimetres. Dr Bellemore provided that note to Mr Harris during the course of their first consultation (statement of Mr Harris dated 5 February 2009, Exhibit O, paragraph 51).

Dr Bellemore stated further that he had “an explicit recollection” of specifically warning Mr Harris of the need to discuss the length of treatment with his employer to determine whether they would be prepared to give him the required amount of time off work. Dr Bellemore’s recollection as to that aspect of the conversation is corroborated by a letter he wrote to BHP on Mr Harris’ behalf outlining the proposed surgery. The letter stated Dr Bellemore’s view that Mr Harris would be unfit for his normal duties for a minimum period of six months and possibly significantly longer if he had surgery to both limbs.

It was submitted on behalf of Mr Harris that Dr Bellemore’s evidence as to the extensive warnings he said he gave should be rejected. Mr Kelly relied in that context on the submissions as to credit discussed above. He also noted the absence of any note or other contemporaneous record to corroborate Dr Bellemore’s evidence on that issue, the fact that the evidence was denied by Mr Harris and the contention that the evidence was inherently improbable.

For the reasons already stated, I accept that it is appropriate to approach Dr Bellemore’s evidence on this issue paying due heed to the demonstrated unreliability of the evidence he originally gave (with some confidence) in relation to the issue of conical washers. An additional consideration not specifically relied upon by Mr Kelly is the fact that, having regard to the passage of time between the events in question and the time when Dr Bellemore was called upon to provide a statement in the proceedings, it seems likely that his evidence on this issue is, to some extent, a reconstruction as to what he later believed or hoped he would have said, albeit based on his practice and experience.

Mr Kelly observed that there was a measure of coincidence between the matters as to which Dr Bellemore said he warned and the bad outcomes complained of by Mr Harris. No doubt, Dr Bellemore had those complaints in mind when he prepared his first statement, and I accept that is likely to have influenced his recollection in some way, especially since he was unaided by any contemporaneous note. It should be noted, however, that Dr Bellemore’s first statement setting out the warnings he claims he gave was prepared before Mr Harris had made any allegation against him of failure to warn.

To a lawyer’s way of thinking, it is extraordinary that Dr Bellemore did not have a practice in 1996 of recording or noting such discussions or a template consent form setting out the risks in writing. I do not, however, accept that the evidence that Dr Bellemore gave on that issue is to be disbelieved on that account, or that it was otherwise inherently improbable, as submitted by Mr Kelly. Mr Kelly relied in particular on the fact that two videos shown to Mr Harris describing the Ilizarov procedure gave “no hint” of any such dangers or risks as Dr Bellemore claims to have warned of. In my view, however, the content of any warnings Dr Bellemore was accustomed to giving is more likely to have been informed by his own education and surgical experience rather than by the content of the promotional videos produced by the marketers of Ilizarov frames. I do not accept that Dr Bellemore’s evidence on that issue is inherently improbable on account of its content.

Further, it is of doubtful assistance to observe that Dr Bellemore’s claim to have given a detailed warning is denied by Mr Harris. In my view, it is almost certain that Mr Harris’ recollection as to what transpired during his early consultations with Dr Bellemore has been irretrievably tainted by his experiences during the conduct of the present claim and its tortured path to a hearing. Mr Bozic relied in that context on the observations made by McLelland CJ in Equity in Watson v Foxman (1995) 49 NSWLR 315 at 319.1 (which I note are equally applicable to an assessment of the evidence of Dr Bellemore on this issue): “Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

An additional consideration, having regard to Mr Harris’ claim that he was given no warning whatsoever, was noted by one of the experts called on his behalf. Mr Simonis stated: “10.7 The patient probably had unrealistic expectations of what surgery could achieve. When he found a surgeon who was prepared to lengthen both legs, he agreed to surgery in spite of whatever risks that had been mentioned to him. 10.8 I have had several such patients who once they find a surgeon who is willing to achieve their objective, tend not to listen to the surgeon’s warnings about potential risks. The patient often does not hear, nor remember, everything that the surgeon tells him, after they have agreed to the patient’s wishes.”

It must be observed that Dr Bellemore gave a detailed, verbatim account of a conversation alleged to have occurred many years ago. I think it would be impossible for any person to recall such detail reliably. However, it seems highly unlikely, and I do not accept, that there was no discussion of risks whatsoever. As submitted on behalf of Dr Bellemore, although Mr Harris initially claimed that not a single word was said on the topic of risks and potential complications of the procedure, he did ultimately accept that Dr Bellemore may have referred to some of the matters that Dr Bellemore claims he warned of, including the reference to soft tissue in the context of leg growth (T99.19); the likely need for physiotherapy (T99.42) and the need to keep the pin sites clean to prevent infection (T98.13).

Mr Harris also accepted that there was some discussion (during the third consultation) of the possibility of needing a blood transfusion. He said that he had seen a reference to blood transfusion on the consent form and was aware on that account of the possibility of something going wrong during the procedure that would require a blood transfusion (T182-183).

Further, I accept that it is inherently unlikely that, in 1996 (four years after the High Court gave its decision in Rogers v Whitaker ), an experienced orthopaedic surgeon would give no warning at all in relation to what he regarded to be a highly risky surgical procedure (see T96.20). Mr Harris did not deny that Dr Bellemore tried to discourage him from having the full bilateral leg lengthening. As submitted by Mr Bozic, an identification of the risks of the procedure was an obvious tool to that end.

I think that Mr Harris probably now has no recollection of any discussion of risks, and believes there was none, but in my view his evidence on that issue is implausible. It is significant, in my view, that the original statement of claim filed in the District Court in these proceedings made no allegation of a failure to warn. That allegation was made for the first time in the amended statement of claim filed 13 May 2002, over five and a half years after the consultations in question.

I am not satisfied that Dr Bellemore failed to give Mr Harris any warning of any of the risks or potential complications of the procedure. Although I do not accept that a warning was given in the exact terms set out in his evidence, I am satisfied that Dr Bellemore’s discussions with Mr Harris probably included discussion of the risks identified in Dr Bellemore’s evidence, broadly in the terms described by him. Question 3: “Was the warning given to the plaintiff adequate?”

For the reasons explained above, the task is to identify whether Dr Bellemore omitted to provide information to Mr Harris in respect of any risk that was in fact a known or reasonably foreseeable risk of the treatment (as at 1996) and that did in fact eventuate.

The issue of the known risks of the procedure as at 1996 was addressed by the liability experts in their concurrent evidence. The experts were asked first to identify all of the potential dangers and risks of the treatment proposed. There was broad agreement on that issue. Professor Saleh said that the risks range from minor contraction and pin site infection to severe damage such as arterial damage and nerve injury, the sequelae of which could go as far as chronic pain or amputation (T1049.38).

Mr Simonis stated that there are twenty or thirty major complications of the procedure, most of which are recorded on a personal consent form which he uses in his practice (at pages 28 and 29 of his report, Exhibit AY). In addition to those expressly mentioned by Professor Saleh, Mr Simonis referred to the fact that pin and wire infections can lead to serious infection in the bone and the risk of malalignment of the lengthening. He also referred to the risk of joint stiffness. His written consent form states, on that issue, “joints often become very stiff. Regular physiotherapy improves joint stiffness but despite physiotherapy, deformity and sometimes even permanent dislocation of joints can occur. This may require surgical correction”.

Mr Simonis added that he has a practice of repeating the warnings over three consultations so that the patient can be absolutely certain they are prepared to go through with the procedure (T1049.39).

Separately, the experts were asked: “If the option of lengthening his right leg by eight centimetres and the left leg by five centimetres were offered to the plaintiff in 1996, in your view: (a) what warnings should have been given to the plaintiff? (b) what consents should have been obtained by the plaintiff to fully inform him of the potential dangers and risks of such surgery?”

Professor Saleh’s response to that question was in the following terms: “The risk of knee stiffness, the loss of knee joint range, which is already a problem for him, considerable stress on an already damaged right knee, the risk of deformity, the risk of delayed and non-union. Very important in an adult, prolonged treatment times and the circumstance of semetry [sic: symmetry]. I was not really thinking about matching the two leg lengths to within millimetres, but achieving what is a good physiological result in each leg and I still see that today as a difficult thing to achieve.”

In response to a specific question as to the risk of vascular injury, Professor Saleh said that such injuries are rare but can be a devastating complication. He stated “it is so rare that I question the appropriateness of exposing every patient to the full discussion of that potential risk … my own view would be not to express a risk of arterial, or indeed nerve, injury to patients on a routine basis. I think it just frightens someone, inappropriately, when they are trying to put their confidence in a surgeon who is about to manage their case” (T1051).

Mr Bozic submitted that the warnings given by Dr Bellemore cover “much the same ground” as Mr Simonis’ consent form. He noted that the plaintiff’s experts were not asked to comment as to the adequacy of the warning Dr Bellemore said he gave. For my part, I doubt that was due to a forensic decision by Mr Kelly and I am not inclined to draw the inference, as Mr Bozic submitted I could, that their answer would not have assisted the plaintiff’s case: cf Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 2 NSWLR 389 at 418-9 per Handley JA.

As to whether Dr Bellemore’s warning covered the territory outlined by Mr Simonis, a comparison of the two discloses that there are, relevantly, two areas of risk identified by Mr Simonis as to which Dr Bellemore does not claim he provided any information to Mr Harris. One is the risk of joint stiffness and loss of knee joint range referred to by both Professor Saleh and Mr Simonis. The second is the area of risks relating to bone formation. It is necessary to consider each of those matters in turn. There are other differences between Dr Bellemore’s warnings and those recommended by the liability experts but, as already explained, it is appropriate to confine my consideration of this issue to the complications that in fact occurred or are alleged to have occurred in the present case.

As to the risk of joint stiffness and loss of flexibility in the knee, there is an issue of fact (addressed below) as to the extent to which Mr Harris’ loss of range of movement in the knee is the result of Dr Bellemore’s breach of duty. For present purposes, however, the issue is not what loss of range is due to the negligence but what loss of range is due to the treatment as a whole. On that issue, the expert evidence (considered in detail below) was to the effect that the stiffness and reduced range of movement suffered by Mr Harris was largely due to the leg-lengthening treatment and that only 15% of that condition was pre-existing.

I am satisfied that the possibility of having the condition of the knee worsened to that extent is a risk to which, in broad terms, it may be said that a reasonable person in the position of Mr Harris would be likely to attach some significance. As noted by Gummow J in Rosenberg v Percival at [77], the extent or severity of the potential injury and the likelihood of its actually occurring are important considerations in the application of that test. The evidence in the present case lacked that detail. Nonetheless, I am comfortably satisfied that a reasonable person in Mr Harris’ position would be likely to attach some significance to the possibility, as it was expressed by Mr Simonis, that he “might get a stiff knee that won’t bend”.

Dr Bellemore said that his warning referred to contractures of the muscles and associated stiffness requiring physiotherapy. However, he did not suggest that he provided any information to Mr Harris as to the risk of loss of flexibility in the knee. I am satisfied, on that basis, that there was a failure to warn of that particular risk.

As to risks relating to bone formation, it is common ground that premature consolidation of the bone was an injury or complication that in fact occurred in the case of Mr Harris. However, none of the experts identified that as a specific risk that ought to have been foreseen by a reasonable orthopaedic surgeon in 1996. The consent form used by Mr Simonis states: “Formation of new bone is unpredictable and cannot be guaranteed” and goes on to address the possibility of no bone formation. It does not address the risk of premature consolidation of the new bone. This is an issue in respect of which the onus of proof lies on the plaintiff. In the absence of any evidence as to the nature of that risk, its likely extent or severity or the likelihood of its occurring, I cannot be satisfied that it was a risk as to which Dr Bellemore was under a duty to warn. Question 4: “If no warning was given, or an inadequate warning was given, would the plaintiff have had the operation in any event?”

In case my finding that Dr Bellemore provided information to Mr Harris on the five topics identified in his evidence is wrong, it is prudent to determine this question on the assumption that no information was provided on those subjects (except as to the need for pin site care against the risk of infection, which Mr Harris acknowledges was discussed). The test is subjective. The question is what Mr Harris would have done if appropriately warned: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 559F, 581D; Chappel v Hart at [32]. It is convenient to consider that issue by reference to a warning in the terms outlined by Mr Simonis as the appropriate warning.

Mr Harris’ evidence on that issue was not strong. As already noted, the evidence was given by reference to the indeterminate phrase “the complications that have in fact occurred”. On the strength of that fluid allegation, it is difficult to assess the significance to him of any particular risk.

Further, the belief he expressed was that if he had known there was a “significant risk” of the complications that have in fact occurred, he would not have gone ahead with the surgery. He acknowledged, however, that his belief was affected by hindsight (T120.40). He did not explain what he meant by the phrase “significant risk”. In addition, the indeterminate reference to “the complications that have in fact occurred” makes the evidence almost meaningless. Mr Harris may have had total psychiatric collapse in mind as one of the complications a warning against which would have deterred him from surgery, but that is not one of the “relevant risks” identified by the experts (Mr Simonis’ consent form refers to depression but not in terms comparable to the psychiatric disability from which Mr Harris claims to suffer).

Mr Kelly lead further evidence from Mr Harris on the twelfth day of the hearing as to what he would have done if given a specific warning of the risk that the femoral artery would be severed and that he would be left with claudication symptoms. Mr Harris responded that he would have asked more questions as to why that was so, but that if given only that information, he would not have agreed to the operation (T712).

As submitted by Mr Bozic, it is widely recognised that such evidence from a plaintiff, although probably sincere, must be analysed objectively, particularly by reference to the person’s attitude and conduct before making the decision to undergo the surgery: Chappel v Hart at [32] and footnote (64) per McHugh J; Rosenberg v Percival at [87]-[90] per Gummow J. All of the objective indications in the present case are that Mr Harris would have paid little heed to the most detailed and robust warning, and would have chosen to proceed with the surgery in any event.

A list of factors relevant to the determination of that issue was referred to by Basten JA in Elbourne v Gibbs [2006] NSWCA 127 at [81]. They include remoteness of the risk, the patient’s desire for treatment, previous and later procedures undertaken, the degree of faith placed in the medical practitioner by the patient, the knowledge of the patient, the need for treatment and the availability of any alternative treatment.

The most cogent consideration in the present case is Mr Harris’ desire for treatment. There is no doubt in my mind that Mr Harris was very determined to have the surgery once he learned of the availability of the Ilizarov procedure as a means of becoming taller. He had twice raised the issue of limb lengthening with Dr Harbison who had, on each occasion, dismissed the idea on the basis that the procedure was too risky to be undertaken for a cosmetic purpose. Mr Harris maintained his interest in having the procedure even though it was not recommended by Dr Bellemore. He was prepared to submit himself to a psychiatric assessment by Dr Dossetor, even though he did not think it was necessary, because that was a requirement imposed by Dr Bellemore. When Dr Dossetor suggested to Mr Harris that leg lengthening was not the appropriate treatment for social anxiety, Mr Harris became “quite angry”, seeing Dr Dossetor as a hurdle to his goal (T826.28).

Perhaps the most extraordinary feature of Mr Harris’ decision is his preparedness to take so much time away from work to have the surgery. That is a measure of his extreme devotion to the surgical path.

A compelling insight into Mr Harris’ state of mind around that time is contained in a letter he wrote to Dr Bellemore on 2 March 1997 (Exhibit N). In order to appreciate the significance of the letter, it is necessary to explain some of the events that prompted Mr Harris to write it. In early January 1997, it was ascertained that there was premature consolidation of the new bone. Accordingly, it was necessary either to perform another osteotomy to cut the bone or to increase the rate of distraction, which would break the bone. Dr Bellemore was on leave at that time. In his absence, another doctor decided to increase the rate of distraction. The following night, Mr Harris woke in the middle of the night in terrible pain due to the breaking of the bone.

Several weeks later, there was a further complication when two of the pins fixing the frame to the bone broke. Dr Bellemore told Mr Harris that they would need to be replaced. The letter was written shortly before Mr Harris’ admission to hospital for that purpose.

The letter discloses that, at some point, Dr Bellemore had apparently ventured to suggest that Mr Harris was obsessive about his legs. Mr Harris did not disagree, but felt moved to explain the “very good reasons” why that was so. The letter states: “With regard to your comment on my last visit about my extraction goals getting longer each time, they have been constant from the outset. When you agreed to proceed I stated my goal was to attain 183 centimetres in height which corresponded with Dr Harbison’s predictions and my twin brother’s height exactly. You stated these goals were excessive but the point is I have been open and honest about them from the start. I have told you and Dr Dossetor things truthfully and frankly that I have never told anyone else because I knew you both could not make informed decisions otherwise.”

The letter further states: “I have turned my life on its head to get this procedure done because as I told Dr Dossetor I do not wish to extrapolate out the last 10 unhappy years to the next 10. I want to get this procedure over with no matter how long or what it takes so I can then get on with my life.”

The letter was not written with litigation in mind and may accordingly be accepted as a frank description of Mr Harris’ stubborn fixation with the goal of attaining the height of his brother. Since it was written after the premature bone consolidation and the pin breakages, it is cogent evidence that Mr Harris would have decided to have the surgery after being warned of those risks.

Separately, I accept, as submitted by Mr Bozic, that there is other evidence to support the conclusion that Mr Harris was fixed upon medication and surgery as the means of correcting what he saw as defects in his physical appearance. As already noted, before he consulted Dr Bellemore, Mr Harris had sought treatment for hair loss and plastic surgery for the correction of scars. More tellingly, after the conclusion of his treatment by Dr Bellemore, when all the relevant risks had come home, Mr Harris had cosmetic surgery on his nose (T224.45-T225.5; Exhibit 17 at page 273).

I have no difficulty in concluding that a warning in the terms recommended by Mr Simonis would have had little impact on Mr Harris and that, after hearing such a warning, he would have proceeded to have the surgery without hesitation. The plaintiff’s “proposed questions for the trial Judge” on this issue draw a distinction between the three centimetre lengthening of the right femur and the additional bilateral lengthening of five centimetres but I do not think Mr Harris drew that distinction at all. It was the bilateral lengthening that he was most interested in. THE FIRST OSTEOTOMY Question 5: “Was it in accordance with reasonable practice to carry out the first osteotomy at a single osteotomy site?” The remaining liability issues relate to a series of particular aspects of the procedure and treatment undertaken by Dr Bellemore. Question 5 relates to Dr Bellemore’s decision, when the Ilizarov frame was first fitted to Mr Harris on 4 November 1996, to carry out the first osteotomy at a single osteotomy site (particular 8(a) in the second further amended statement of claim).

The question directed to the experts on that issue was whether, as at 1996, if the eight centimetre femur lengthening was to have been undertaken, a double osteotomy should have been carried out. As already indicated, I do not accept the premise of that question (that Dr Bellemore was proposing to undertake a lengthening of eight centimetres from the outset). Nonetheless, for present purposes, I am content to assume otherwise.

The plaintiff’s expert witness, Mr Simonis, stated that he does a double osteotomy for anything over six centimetres, for several reasons. First, he noted that it is “hard to make new bone over such a big distance”, stating that the bone grows for the first five or six centimetres but then narrows out to poorer quality bone. Secondly, he pointed to the fact that, with two osteotomies, the time needed to be spent in the frame is halved. On the downside, he acknowledged that the frame for a double osteotomy is “a bit more complex”. He did not accept that there is an increased strain on the muscular system if a double osteotomy is performed, because he said that the distance that the bone is being lengthened is the same (T1056.38-T1057.6). He did not, however, address the question of increased risk to the muscular system if the lengthening is occurring at twice the rate due to there being two sites.

The defendant’s expert, Professor Donnan, stated that there was a wide range of practices in 1996. He did not agree that an Ilizarov surgeon exercising ordinary skill and competence at that time would necessarily have done a double osteotomy. He stated that it was a time of developing techniques and that there were publications to support either approach. (T1057.37). Similarly, he accepted that a double osteotomy was one technique but characterised the issue as one of surgeon preference and experience (T1058.8).

Dr Tetsworth was also of the opinion that it would be difficult to come to an absolute conclusion as to which procedure would be the best and said that either method could have been used. He reiterated the point that the frame used in the case of a single osteotomy is simpler. He also noted that each osteotomy increases the level of risk.

Professor Saleh’s opinion on that issue drew on his firm view that an eight centimetre lengthening should not have been carried out close to the knee (distally) as it was in the present case (T1056.30). On that basis, he thought there was no reason why the majority of the lengthening should not have been performed proximally (near the hip) but he acknowledged that a distal osteotomy was needed for full correction to achieve proper alignment. Professor Donnan agreed with Professor Saleh that, based on current experience, it is regarded as being preferable to avoid undertaking a long lengthening distally, but reiterated that this was an evolving field with evolving experience and did not think that would have been the understanding in 1996.

As noted in the written submissions on behalf of Dr Bellemore, Professor Saleh’s opinion was directed principally to the site of the osteotomy rather than the fact that a single osteotomy was performed. The submissions assert that no particular of negligence alleges a failure to perform the first osteotomy at an appropriate site. That is not correct. Particular 15(a) alleges that Dr Bellemore was negligent in carrying out the original osteotomy in November 1996 in the distal end of the femur. However, as noted in the defendant’s submissions, it was not suggested to Dr Bellemore in cross-examination that the site of the first osteotomy was other than appropriate and for that reason alone, I should be slow to conclude negligence on that basis.

In any event, in light of the discussion of this issue by the experts during the concurrent evidence (summarised above), I am not satisfied that, in 1996, a reasonably competent Ilizarov surgeon would not have performed the first osteotomy at a single osteotomy site in the distal end of the femur. Question 6: “If a single osteotomy was inappropriate, what has been caused by the failure to carry out a bifocal osteotomy?”

In light of my conclusion as to question 5, it is not necessary to answer question 6. In any event, I accept, as submitted on behalf of Dr Bellemore, that there was simply no evidence to establish that the failure to carry out a bifocal osteotomy led to any particular damage in the present case. THE CONSULTATION OF 10 DECEMBER 1996 Question 7: “At the consultation on 10 December 1996, should the defendant have detected the early onset of premature consolidation?”

Particular 7(a)(ii) in paragraph 32 of the second further amended statement of claim alleges that Dr Bellemore was negligent in failing on 10 December 1996 to increase the rate of distraction or schedule more frequent follow-up consultations with the plaintiff. In order to give content to that allegation, it is necessary to explain some of the events that occurred after the first osteotomy and during the distraction process. Factual context: commencement of distraction and the premature consolidation

Following the osteotomy and fixation of the Ilizarov frame on 4 November 1996, Mr Harris was in hospital for about a week. Before he was discharged, he was told to commence distraction of the frame at a rate of one millimetre per day.

Mr Harris was reviewed by Dr Bellemore on 25 November 1996 and again on 10 December 1996, bringing fresh x-rays to each consultation. At the consultation on 25 November 1996, Dr Bellemore noted that distraction of one and a half centimetres had been achieved and requested Mr Harris to continue at the rate of one millimetre per day. At the consultation on 10 December 1996, Dr Bellemore noted that distraction of two and a half centimetres had been achieved which, of course, meant that the three centimetres required to bring Mr Harris’ legs to even length would be reached in five days time. As already noted, it was during that consultation that the decision was made to proceed beyond three centimetres in the right leg. Dr Bellemore was then due to be away on holidays for several weeks. He arranged for Mr Harris to see another doctor, Dr Little, for further review on 2 January 1997.

Shortly after that consultation, Mr Harris’ father noticed that the rods and pins on the frame were bending (Exhibit O, paragraph 76). Mr Harris says that he called the hospital on 13 December 1996 to discuss his concerns and was advised to attend for review, as scheduled, in early January. On 2 January 1997, Mr Harris saw Dr Little, who thought there might be premature consolidation of the bone. As already noted, a choice had to be made at that point whether to perform a further osteotomy or to increase the rate of distraction so as to break the consolidated bone. Dr Little suggested increasing the rate of distraction and, as a consequence, Mr Harris suffered terrible pain during the following night when the new bone was broken by being pulled further apart. Should Dr Bellemore have detected premature consolidation?

It is not specifically alleged in the second further amended statement of claim that Dr Bellemore should have detected the onset of premature consolidation during the consultation on 10 December 1996, but that is implicit in the allegation of negligence in failing on that date to increase the rate of distraction or schedule more frequent follow-up consultations with Mr Harris.

As with some of Mr Harris’ other complaints, I think that allegation is plainly derived exclusively from the unreliable perspective of hindsight. None of the experts said that a reasonably competent Ilizarov surgeon should have identified the onset of premature bone consolidation from the x-ray taken on 10 December 1996. In fact, Mr Simonis appeared to accept that he would not have identified premature consolidation from that image. He observed that the rods were bending, suggesting that the bone may have been beginning to fuse, and said that he would have increased the rate of distraction for a week and reviewed the patient then “to see what was going on”. However, that is not a sufficient evidentiary basis for a conclusion that a reasonably competent Ilizarov surgeon would have detected the onset of premature consolidation on that day. Question 8: “At the consultation on 10 December 1996, should the defendant have increased the prescribed rate of distraction?” Question 9: “At the consultation on 10 December 1996, should the defendant have arranged for the plaintiff to be seen at some point prior to 2 January 1997?”

On that basis, questions 8 and 9 do not arise. Nonetheless, it is appropriate to record that I accept, as submitted on behalf of Dr Bellemore, that the expert evidence on that issue did not establish any single “appropriate” response to the detection of premature consolidation in the bone. On that basis, I am not satisfied that Dr Bellemore was negligent as alleged in particular 7(a)(ii). Question 10: “If the answer to any of the above three questions is “ yes ”, what has been caused by the defendant’s failure to do so?”

It follows that question 10 also does not arise. In any event, it is not clear what case was put on behalf of the plaintiff as to any damage alleged to have been caused by the failure to detect premature consolidation on 10 December 1996. If there was indeed premature consolidation by that date, there is no evidence that the outcome would have been any different if it had been identified then, or indeed that the failure to adopt the course ultimately taken by Dr Little was causative of any damage. Accordingly, even if Dr Bellemore was negligent in that respect, I am not satisfied that any damage was caused by his conduct. THE SETTING IN WHICH THE PROCEDURE WAS CARRIED OUT Question 11: “Should the distraction have been carried out in a clinic or hospital setting where monitoring and physiotherapy facilities were available to the plaintiff on a full time or a daily basis?” (particular 6(a)) Question 12: “If so what has been caused by the failure to carry out the distraction in such a setting?”

The contention that the lengthy process of distraction that followed the initial surgery should have been carried out in a clinic with full-time monitoring and physiotherapy facilities derives from Mr Harris’ subsequent experience of treatment in Russia, where the Ilizarov procedure was developed. Following the surgery in May 1997, during which Mr Harris’ femoral artery was severed, Mr Harris unsurprisingly decided not to continue treatment with Dr Bellemore. By that point, however, his left leg was about five centimetres shorter than the right. In April 1998 he travelled to Russia with his father where he stayed in a dedicated limb lengthening clinic for several months. No such facility exists in Australia. In that context, it is difficult to give content to the allegation in particular 6(a).

Mr Kelly submitted “within the ambit of [particular] 6(a)” that, although Dr Bellemore gave Mr Harris a letter of referral to a physiotherapist (Ms Crane) he made no enquiry of either Mr Harris or Ms Crane as to what follow up arrangements had been made. I do not think it was the surgeon’s responsibility to oversee that process.

Otherwise, the submissions on behalf of Mr Harris did not specifically address questions 11 and 12. There was no evidence that a reasonably competent surgeon would not have carried out the process of distraction except in a clinic or hospital setting and no evidence that any damage was suffered by reason of the fact that that did not occur. I am not satisfied that Dr Bellemore was negligent as alleged in particular 6(a) of the second further amended statement of claim. CONCLUSION AS TO LIABILITY

I am not satisfied that Dr Bellemore breached his duty of care as alleged by Mr Harris except in respect of the failure to warn of the risk of loss of motion in the knee and the admitted failure to fit hinges or conical washers to the Ilizarov frame so as to enable the varus deformity to be corrected during the period of distraction. As to the failure to warn, I am satisfied that Mr Harris would have proceeded to have the surgery in any event, even if properly warned. DAMAGES

It remains to assess what loss Mr Harris has suffered as a result of Dr Bellemore’s breach of duty. There is a stark factual contest between the parties in relation to that issue. Mr Harris claims economic loss on the basis that his disabilities resulting from his treatment by Dr Bellemore are such that he has no capacity for any employment at all and, further, that he requires a high level of regular domestic assistance. Dr Bellemore contends that the failure to use hinges on the Ilizarov frame fitted to Mr Harris contributed only slightly to Mr Harris’ present disabilities, that he would have suffered from all of them to almost the same degree in any event and that his lack of employment since his dismissal by BHP has been a matter of choice.

The complexity in the resolution of those diametrically opposed contentions is twofold. First, it is not simply a matter of identifying all of Mr Harris’ present disabilities. The task is to identify the discrete impact, on an already complex medical picture, of the use of a frame without hinges. The second complexity in the present case is the need to disentangle the distorting effect on Mr Harris’ experience of events of any dysfunctional or exaggerated response to his treatment. Disabilities alleged to have resulted from the failure to use hinges

Mr Kelly submitted that Dr Bellemore’s liability flowing from his admitted negligence extends to “all of those problems that would have been corrected or forfended had hinges been inserted on the frame”. That is an unexceptionable proposition, so far as it goes. The difficulty is to identify the “problems” allegedly included within that claim.

Only two specific matters are identified in the pleadings as having resulted from the failure to fit hinges or conical washers to the frame: the damage to the femoral artery and the posterior displacement in the right femur resulting from the second osteotomy (paragraphs 7A to 7G of the second further amended statement of claim).

Dr Bellemore admits liability for those matters. Specifically, he admits that, but for his breach of duty in failing to fit either hinges or conical washers to the frame, the second osteotomy would not have occurred. He further admits that he is liable for the consequences of that surgery, “whatever they may be” (paragraph 9 of the defence filed 13 May 2009). He admits that the consequences include the damage to the femoral artery and the posterior displacement in the right femur (paragraph 8 of the defence). However, Dr Bellemore denies that those conditions are disabling to the extent claimed by Mr Harris and contends that there is very little additional functional disability attributable to his admitted negligence.

In written submissions served after the conclusion of the evidence, Mr Kelly provided a more extensive list of matters alleged to have resulted from the failure to fit hinges or conical washers to the frame, as follows: “1. The pin breakage and the resulting March 1997 surgery. 2. The plaintiff’s flexion deformity condition in the right leg. 3. Predominately the condition of the plaintiff’s right knee. 4. The vascular deficit in the plaintiff’s right leg and resulting claudication. 5. The plaintiff’s ongoing psychiatric condition since the May 1997 surgery. 6. The plaintiff’s continuing incapacity for work as the result of these conditions. 7. The plaintiff’s claim in respect of attendant care and treatment expenses as the result of those conditions. 8. Medical, pharmaceutical and the like expenses from May 1997 with the exception of those expenses directly related to the removal of the frame in July 1997 and the physiotherapy at Bowral following on after this.” Principles applicable to determining causation

The first task is to determine whether it has been established that Mr Harris in fact suffers those disabilities to the extent claimed. The second task is to determine the issue of causation. As recently confirmed by the High Court, the question is, as to each established disability, whether it has been established that it is more probable than not that the failure to fit hinges or conical washers to the frame was a cause: Amaca Pty Ltd v Ellis [2010] HCA 5 at [1]. In Amaca , that issue was approached on the basis that the plaintiff could only succeed if it was established that the negligent conduct had caused or contributed to the plaintiff’s illness in the sense that it was a necessary condition for the illness: at [12].

In some respects, the issues of causation in the present case are different from the causation issue in Amaca . The decision in Amaca concerned a claim arising out of the development of lung cancer allegedly caused or contributed to by negligent exposure to asbestos. Mr Ellis had also been a heavy smoker, which the evidence established may have caused or contributed to his cancer. His claim failed because the evidence at trial had established no more than that exposure to asbestos may have been a cause of the cancer. The evidence did not establish that it was a probable cause: at [14].

The High Court stated that the issue of material contribution did not arise in that case because a connection between the inhaling of asbestos and the cancer had not been established on the balance of probabilities: at [68]. However, I do not understand that aspect of the decision to derogate from the proposition (apparently accepted at [12] of the judgment) that where such a connection is established on the probabilities, the plaintiff must establish that the negligent conduct caused or contributed to the damage in the sense that it was a necessary condition for that damage.

In the present case, as to a number of the disabilities included in Mr Harris’ claim, the evidence established multiple causes of which the second osteotomy was probably one, but which probably also included a combination of Mr Harris’ pre-existing condition and other aspects of Dr Bellemore’s treatment carried out without negligence.

The inquiry in that instance is whether the plaintiff has established that his injuries were “caused or materially contributed to” by the defendant’s wrongful conduct: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 514.7. The cause of Mr Harris’ present condition is a question of fact to be determined by applying a common sense approach to the facts of the case: March v Stramare at 515.1 (although, as recently noted by the Court of Appeal, the notion of “common sense” may not operate uniformly in all kinds of case: Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19 at [125] per Basten JA; Allsop P agreeing at [1]; cf Handley AJA at [163]).

In Elbourne v Gibbs , Basten JA identified three broad propositions applicable to determining causation in the context of multiple causes (derived from the jurisprudence in the High Court since Chappel v Hart ): [2006] NSWCA 127 at [74]; Beazley JA agreeing at [1]: First, where there are multiple ‘effective’ causes of an event, of which only one involves a breach of duty, causation may nevertheless be established, so long as the breach of duty makes a “material contribution” to the harm suffered. Secondly, the fact that the breach of duty is a cause in the sense noted, may not be sufficient to establish liability; the degree of connection must satisfy the policy underlying the legal attribution of responsibility. Thirdly, and consequentially, care must be taken to assess causation in its particular statutory or other legal context. Even within general law principles relating to tort, the underlying purpose of the particular assessment must be borne in mind.

Mr Kelly relied on the principle stated in Harold Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002) Butterworths at [1.9.10]: “ … once the plaintiff has proved that the defendant’s negligence did materially contribute to the plaintiff’s ultimate condition, there is an evidential onus on the defendant to ‘disentangle’ the causes; if it is impossible to do so, the defendant may be held liable for the full extent of the plaintiff’s loss.”

In the case of a pre-existing condition that may have caused or contributed to the plaintiff’s disabilities, the case usually cited as authority for that proposition is Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 at 160 per Dixon CJ; see also Chappel v Hart at [93] at (8) per Kirby J; Shorey v PT Ltd [2003] HCA 27; 197 ALR 410 at [46]-[47] per Kirby J.

However, as explained in Purkess v Crittenden (1965) 114 CLR 164 at 168, any evidential burden on the defendant to disentangle the causes should not be confused with a reversal of the onus of proof. The onus is on the plaintiff to prove causation. Further, the content of any evidentiary burden on Dr Bellemore is informed in the context of the present proceedings by the fact that expert witnesses on behalf of both the plaintiff and the defendant conferred and gave concurrent evidence as to the causation issues.

I turn to consider Mr Kelly’s list of the matters alleged to have been caused by the failure to use hinges set out at paragraph 182 above. THE PIN BREAKAGES AND THE SURGERY OF MARCH 1997 Question 12A. “Would on the probabilities the pin breakages suffered by the plaintiff in February 1997 have been averted had hinges been fitted to the frame that the plaintiff wore?” Question 12B. “Had the pin breakages been averted would the operation of March 1997 have been averted?”

The first matter identified in Mr Kelly’s list (and in his additional questions 12A and 12B) is the breakage of two of the pins fixing the Ilizarov frame to the bone. It is helpful to consider that claim in its chronological context. Factual context: January to March 1997

After Dr Little identified and corrected the premature consolidation of the bone (in early January 1997) the process of distraction continued. On 11 February 1997, Dr Bellemore said that Mr Harris’ knee was getting “tight” and that he was now concerned about the varus correction. Mr Harris states that Dr Bellemore said to him: “no more negotiations, we won’t do any more lengthening because the leg is already tight and the medial side it (sic: is) not turning around fast enough”. Mr Harris understood the reference to “negotiations” to be a reference to an earlier request made by him to have the right femur lengthened by more than eight centimetres (Dr Bellemore’s previously stated limit) if Mr Harris could maintain knee flexion at a good angle (Exhibit O, statement dated 5 February 2009, paragraphs 84 to 85).

On 18 February 1997, during a further consultation with Dr Bellemore, Mr Harris leaned forward on his right leg to assess the extent of flexion in his knee. He heard a sound, which he described as being “a loud snap like a gun going off”. Dr Bellemore told Mr Harris that it might have been a piece of callus bone breaking. The consultation ended shortly afterwards. A week later, Mr Harris heard a similar sound at home while doing his knee flexion exercises. An x-ray taken later that day revealed that two of the half pins fixing the frame to the bone had broken. The pins were replaced in surgery in March 1997.

There is no doubt that, had the pin breakages been averted, that operation would have been averted. The only purpose of the operation was to replace the broken pins. The critical question is whether it has been established that it is more probable than not that the failure to fit hinges or conical washers to the frame was a cause of the pin breakages.

There is a measure of confusion in the pleadings as to how the case on causation in respect of the pin breakages is put. In paragraph 10H of the second further amended statement of claim, Mr Harris alleges that the pin breakages were due to the premature consolidation of the bone in early January. However, in paragraphs 20A and 20B of the pleading, the breaking of the pins is attributed to the failure to fit hinges or conical washers to the frame.

So far as I am able to identify, the earliest event relevant to the determination of this issue is Mr Harris’ evidence as to his father’s observation some time around 13 December 1996 (about six weeks after the Ilizarov frame was fitted), that the connecting rods and half pins of the frame were bending. Mr Simonis appears to have made the same observation from the x-rays taken on 10 December (T1063.21). I do not think any expert witness in the proceedings sought to explain why that occurred at that time. It seems likely that it was due to the premature consolidation in the bone, but I cannot be sure.

When Dr Little identified the premature consolidation in early January 1997, he sought to counteract it with differential distraction, that is, by distracting the frame by a greater distance on one side than the other. Before that date, distraction had been undertaken at the same rate on both sides of the frame.

One of Mr Harris’ orthopaedic expert witnesses, Mr Simonis, expressed the opinion that the differential distraction led to “excessive tension in the frame, which resulted in the frame breaking”. He stated that “this was bound to happen if the frame was not hinged and this should have been foreseen … Eccentric lengthening of rigid threaded rods could not correct the degree of varus and procurvatum deformity. It will lead to breakage of the frame” (Exhibit AY, report of Mr Simonis dated 29 December 2008 at paragraphs 22.3-22.4).

Mr Harris also relied on the opinion of one of the defendant’s orthopaedic experts, Dr Tetsworth, who said (Exhibit 33, page 8): “It is my considered opinion Dr Bellemore chose a less effective method to address the varus deformity. Differential distraction may be useful to address a small angular deformity with a very solid fixator, but in an adult femur the forces would be expected to exceed the rigidity of the device. Either conical washers or formal hinges would have been a more effective method. There is a reasonable probability of medical certainty that this excess demand contributed to the premature failure of the half pins in the distal femur.”

A question as to the causal link between the failure to use hinges and the pin breakages was directed to the orthopaedic experts on liability (question A40). Mr Simonis adhered to his view that the differential distraction put tremendous strain on the rigid frame and was responsible for breaking the pins (T1060.58). Professor Saleh did not isolate the absence of hinges or conical washers as the only cause of the pin breakages but appeared to agree that it was a cause (T1060.46). Professor Donnan said, in effect, that the absence of hinges or conical washers was not the sole cause (T1061.24) and the evidence of Mr Torode and Dr Tetsworth was to like effect (T1062). Dr Tetsworth did think the absence of hinges “contributed” but appeared to suggest that the use of hinges would not necessarily have avoided the breakages (T1062.32). That, however, is not the legal test.

None of the expert evidence contradicted the proposition that the absence of hinges was probably a cause of the pin breakages. I am persuaded by the evidence of Mr Simonis, considered in the context of the facts summarised above, that more probably than not the failure to fit hinges or conical washers to the frame was a cause of the pin breakages in the sense that the use of hinges would probably have forfended that outcome. That resulted in the need for the surgery to replace the pins in March 1997.

As acknowledged by Mr Kelly, the issue of the pin breakages goes primarily to the question of general damages (T1331). It is not alleged to have contributed to any diminished earning capacity. THE PLAINTIFF’S PHYSICAL DISABILITIES Question13: “What physical disabilities does the plaintiff now suffer from?” Question 14: “To what extent have these physical disabilities been caused by any breach of duty by the defendant?”

The next task is to identify the current physical disabilities suffered by Mr Harris. In the context of the findings I have made as to breach of duty, the critical question is whether, more probably than not, the failure to fit hinges or conical washers to the frame was a cause of any of those disabilities. For that purpose, it is also necessary to consider the extent to which any present disability was caused or exacerbated by aspects of the treatment in respect of which Dr Bellemore was not negligent (that is, events not caused by the failure to fit hinges) or events unrelated to Dr Bellemore’s treatment (such as Mr Harris’ pre-existing condition).

The physical disabilities identified in Mr Harris’ claim related primarily to the final state of the femur, the condition and function of the right knee and the vascular deficit arising from the damage to the artery during the second osteotomy.

The parties’ competing claims as to those matters must be considered in the context of the events surrounding the second osteotomy. Factual context: the second osteotomy

After the operation to replace the two broken pins, Dr Bellemore told Mr Harris that there would be no more distraction and that the leg was now in the consolidation phase. When he returned home from hospital, Mr Harris became concerned that his leg was not straight. In Mr Harris’ written statement, he says (Exhibit O at paragraphs 104-105): “X-rays showed a right hip-knee alignment of 83° (i.e. varus still present as Dr Bellemore said it should be at 88°) with anterior curvature (procurvatum). I asked Dr Bellemore if this was how he was going to leave things and he said “yes”. I told him that a varus deformity was not good long term for my knee, and one of the original objectives was to correct the varus. I told him that considering what I had been through it was a poor result. I asked him to do another osteotomy to straighten up my leg.”

The second osteotomy was carried out on 5 May 1997. Mr Harris came out of anaesthetic to find himself on a heart monitor and being checked regularly throughout the night by nursing staff. Dr Bellemore visited him at the hospital and told him that something had gone wrong; that when he was cutting through the bone, he had nicked the artery. Dr Bellemore explained that the artery had been repaired by a vascular surgeon using Mr Harris’ left saphenous vein as a graft.

Mr Harris was in hospital for a week. He stated (Exhibit O, statement dated 5 February 2009, paragraph 122): “I was very sick during this period, experiencing a ‘vision of stars’ if I sat up quickly in the bed, and was totally exhausted after walking five metres to the bathroom. I lay there in the bed with both legs sliced open and really did not care if I lived or died. No professional staff came to simply talk to me to understand how the operation had affected me”.

Mr Harris stated that Dr Bellemore showed him some x-rays a few days after the operation and said he had removed the varus deformity alignment but that he could not move the lower femoral fragment back into place because Mr Harris’ hamstrings were too tight. That is consistent with the evidence of the plaintiff’s expert witness on liability, Professor Saleh, who thought there had been an effective correction of the varus deformity but at the expense of some posterior translation caused by tension in the limb: T1067.

Mr Harris said in his written statement that the x-ray showed “a large and alarming posterior displacement of the lower femoral fragment”. He said that Dr Bellemore told him he was showing the x-ray to him because he knew Mr Harris would look at it later and become concerned.

The Ilizarov frame was removed on 28 July 1997 and Mr Harris then embarked on a programme of physiotherapy and hydrotherapy.

As already noted, Mr Harris subsequently had cosmetic surgery on his nose. On 18 November 1997, he consulted a cosmetic plastic surgeon, Dr Tan, requesting cosmetic rhinoplasty “to improve the shape of his nose, it being slightly deformed” (Dr Tan’s report, Exhibit 17, page 273). Mr Harris underwent a total rhinoplasty two days later. Dr Tan reported that, upon first inspection, Mr Harris was “extremely excited with the result”.

Mr Harris had his last consultation with Dr Bellemore on 4 March 1998. He states that he told Dr Bellemore he had no confidence in him anymore and would not let him “touch” his left leg (Exhibit O, paragraph 151).

In April 1998, Mr Harris travelled to Europe. On 6 May 1998, he underwent surgery on his left femur at the Ilizarov Centre in Kurgan, Western Siberia, following which his left leg was lengthened by five centimetres during a period of in-patient care. He returned to Australia in November 1998.

These proceedings were commenced on 3 November 1999. Mr Harris returned to work at BHP one month later, on 6 December 1999 and continued to work full-time for almost two years. However, after a series of adverse performance reviews, he was told in September 2001 to take annual leave and to return in January 2002. He returned on a graduated programme but his performance was seen as unsatisfactory and he was ultimately dismissed on 29 April 2002.

A substantial amount of hearing time was devoted to the detail of Mr Harris’ return to employment, his dismissal and his subsequent anxiety about this litigation. That evidence is considered below. The expert evidence

Three groups of experts gave evidence in the proceedings as to the issues to be determined concerning the physical disabilities. The vascular issues were addressed by two vascular surgeons, Dr Kevin Hanel on behalf of the plaintiff and Professor Reginald Lord on behalf of the defendant. Those witnesses did not produce a joint report but gave their evidence concurrently.

Issues relating to Mr Harris’ current physical condition from an orthopaedic perspective were addressed separately by two orthopaedic surgeons, Dr Thomas Kossmann on behalf of the plaintiff and Dr John Stephen on behalf of the defendant (referred to in the proceedings as the orthopaedic experts on current condition). Dr Kossmann and Dr Stephen each examined Mr Harris for that purpose. They then conferred as to the outcome of their respective examinations, prepared a joint report to the Court and gave concurrent evidence.

Separately, on the day when the orthopaedic experts on liability gave their concurrent evidence as to the liability issues in the proceedings, they agreed also to address additional questions directed to identifying the causes of various assumed disabilities from an orthopaedic perspective. Professor Saleh, who had given his evidence by video link from England, did not participate in that further process due to the late hour in England when the issue was raised. The remaining liability experts conferred during the lunch adjournment and reached agreement as to all of the additional questions posed. Orthopaedic issues

It is convenient to begin with the orthopaedic issues, identified by Mr Kelly under the broad descriptions “the flexion deformity condition in the right leg” and “predominantly the condition of the plaintiff’s right knee”.

It is difficult to identify a complete catalogue, using consistent terminology, of the disabilities under those headings attributed (by the two groups of orthopaedic experts) to Dr Bellemore’s failure to use hinges or conical washers on Mr Harris’ frame. Orthopaedic experts on current condition

As noted by Mr Bozic, the orthopaedic experts on current condition (Dr Kossmann and Dr Stephen) appeared to attribute little of Mr Harris’ current orthopaedic condition to the second osteotomy, beyond some additional scarring and the vascular injury (as to which they deferred to the vascular experts).

As to scarring, they noted that it is not only a cosmetic problem and agreed that: (a) scarring associated with the two childhood accidents and related procedures may have been responsible for the lack of flexion noted by Dr Pinczewski in March 1996; (b) the early scarring together with the additional scarring due to the second osteotomy would have contributed in part to “the soft tissue element in the production of further limitation of flexion associated with the leg lengthening” (joint report, Exhibit 40 at page 2.6). They recorded the range of movement in Mr Harris’ knee at the time of their examinations as being something in the order of 0 to 90°.

Each of the current condition experts recorded pain as a part of the history given by Mr Harris. They agreed, however, that the history given on that issue was consistent with vascular claudication, although it had atypical features. They stated that the opinion of a vascular surgeon would be more reliable on that issue.

The current condition experts did, however, also attribute some pain to scarring. Separately, they recorded a history of hypersensitivity in the right shin, which they attributed to the damage to the femoral artery (joint report, Exhibit 40 at page 2.4). However, as noted in the submissions on behalf of Dr Bellemore, that was based on speculation that injury to the right saphenous nerve may have occurred at the time of the vascular injury, as to which there was no direct evidence (such as a report from a neurologist that any such nerve injury has in fact been suffered and is attributable to the second osteotomy). I am not satisfied, on the evidence before me, that there was any such injury. Orthopaedic experts on liability

The additional evidence of the orthopaedic experts on liability (other than Professor Saleh) was directed to isolating the causal relationship between a series of assumed disabilities and the second osteotomy. The question sought quantification of the extent to which those assumed disabilities were due to the second osteotomy or to other events.

It is necessary to consider, separately, whether I am satisfied independently that each of the assumed disabilities identified in the questions posed is a disability in fact suffered by Mr Harris. That task is complicated by the fact that the list of assumed disabilities which the liability experts were asked to address did not coincide neatly with the various disabilities from which Mr Harris claims to suffer.

Of the liability experts who addressed those questions, only Mr Simonis had conducted a physical examination of Mr Harris. The other experts were, however, familiar with Mr Harris’ medical history and the issues in the proceedings. None suggested that he felt unable to answer the questions posed. “The flexion deformity condition in the right leg”

In considering the claim as to the alleged “flexion deformity” it is necessary to explain the terminology used in the proceedings. Mr Kelly opened the case on behalf of Mr Harris by reference to three drawings by Professor Saleh. He said the first illustrated the flexion deformity complained of by Mr Harris. The deformity depicted is that the ankle rests too far behind the knee owing to abnormal flexion in the leg (viewed from the side). The significance of such a deformity is that there has to be “a continuing muscle movement just simply to maintain standing” (T1077.14). On that basis, Professor Saleh regarded it as a significant factor, not a trivial event.

Professor Saleh identified three components that together make up the “flexion deformity”. First, he explained that there is an angle at the site where the bone was lengthened. He referred to that as a “posterior angulation”, but I understood him to be referring to the condition to which others referred as the procurvatum (the bowing in the femur depicted in Professor Saleh’s second drawing). I have adopted the term “procurvatum”. The orthopaedic experts on current condition (both of whom examined Mr Harris) agreed that Mr Harris has procurvatum of approximately 20° (joint report, Exhibit 40 at page 3.1; T1178-T1179).

The second component of the flexion deformity identified by Professor Saleh was the posterior displacement or step in the femur (depicted in Professor Saleh’s third drawing). It is clearly established that there is a posterior displacement in the lower segment of Mr Harris’ right femur where the second osteotomy did not reunite in perfect alignment. Dr Bellemore accepts that the posterior displacement is entirely due to the second osteotomy (the need for which he accepts was occasioned by his negligent failure to fit hinges to the frame). The terms “posterior translation” and “posterior displacement” were used synonymously throughout the proceedings. I have adopted the term “posterior displacement”.

The third component was “a contracture in the knee joint itself”. Professor Saleh stated that those three components together make up the flexion deformity (T1067.36).

As to the extent of the flexion deformity, Professor Saleh ventured the proposition (acknowledging that he had not examined Mr Harris) that Mr Harris cannot now fully extend his knee and that, when he attempts to do so, his ankle could be as much as twelve centimetres posterior to the line of the knee (T1070.31). The source of that statement appears to have been the report of the plaintiff’s orthopaedic expert on current condition, Dr Kossmann (see T1070.39).

Whether or not that was in fact Dr Kossmann’s original assessment, Dr Kossmann later agreed (after conferring with the defendant’s orthopaedic expert on current condition, Dr Stephen) that Mr Harris can fully extend his knee. On that basis, he accepted that the posterior displacement itself is of no significance (joint report, Exhibit 40 at pages 2 to 3; see also evidence of Mr Simonis at T1071.16; evidence of Dr Tetsworth at T1069.40).

I accept that evidence and am satisfied, as submitted by Dr Bellemore, that the posterior displacement or “step” in the lower segment of Mr Harris’ right femur does not preclude full extension of the knee and is accordingly of no functional significance.

However, after Mr Simonis had examined Mr Harris, it was contended on Mr Harris’ behalf that the flexion deformity was almost wholly due to a “flexion angulation” or “procurvatum”. Mr Kelly used those terms as synonyms (T1081.49) denoting the curvature or bowing in the right femur shown in Professor Saleh’s second drawing (to which I refer as the procurvatum). Mr Kelly contended that the flexion angulation or procurvatum would have been forfended had Dr Bellemore fitted hinges to the frame.

The additional question to the orthopaedic experts on liability sought their view as to the cause of the “flexion angulation” (Mr Kelly’s synonym for the procurvatum). Those experts explained, however, that the term they would use was “the procurvated deformity of the femur” (which appeared to comprehend both the procurvatum and the posterior displacement). On that basis, Professor Torode stated (on behalf of the group) (at T1103.14): “Using the terminology in that manner, there is previous evidence of a bony injury and growth plate disturbance. So we cannot say the bone was normal in the first instance, but we feel that was a minor deformity in terms of the procurvated deformity and called that 10 percent or less. Approximately 70 percent of the procurvated deformity we believe is due to the lengthening procedure per se and the remainder due to the subsequent distal femoral osteotomy.”

I understood the experts’ evidence on that issue to mean that they would attribute approximately 70% of any flexion deformity (not including contracture in the knee joint itself) to the residual procurvatum (the bow in the bone). They attribute the procurvatum, in turn, to the leg lengthening process itself, and that is admitted by Dr Bellemore on the pleadings. Implicitly, they attribute the remaining 20% of any flexion deformity to the second osteotomy, presumably due to the posterior displacement of the right femur that occurred during that operation.

On that basis, it may be accepted that 20% of any flexion deformity is due to the posterior displacement and so falls within the class of consequences for which Dr Bellemore admits liability. The question is, 20% of what? In light of the agreement between the current condition experts that Mr Harris can fully extend his knee, I am not satisfied that the posterior displacement has any functional significance.

Separately, it was contended on behalf of Mr Harris that liability for the residual procurvatum (responsible for 70% of the assumed flexion deformity) flows from Dr Bellemore’s admission of breach of duty in failing to use hinges to correct the varus deformity. In light of the evidence summarised above, it is doubtful whether the procurvatum has any functional significance either, although it appears to be a matter that is upsetting Mr Harris. In any event, that issue is considered separately below. “Predominantly the condition of the plaintiff’s right knee”

The remaining matters identified by Mr Kelly concern the condition of Mr Harris’ knee, covering a range of issues. “Flexion contracture”

The additional questions to the orthopaedic experts on liability raised “flexion contracture” as a specific matter for their attention. As already noted, Professor Saleh had identified “a contracture in the knee joint itself” as the third component of the flexion deformity (T1067.36). He stated that there was a contracture (loss of flexion range) within the knee of 10° (T1073.45). He attributed 50% of the residual contracture to the second osteotomy (T1075.5).

When the remaining experts (not including Professor Saleh) addressed the question of “flexion contracture”, they were in agreement that there is no evidence of a flexion contracture of the right knee in the sense in which they understood that term (T1103.25). Mr Kelly clarified that the question was intended to be directed to the range of motion in the knee. On that assumption, they agreed that 15% of the loss of motion was pre-existing and 70% was due to the leg lengthening procedure itself. On that basis, they implicitly attributed only 15% of the loss of range of motion in the knee to the second osteotomy (T1103.22 - T1104.4), whereas Professor Saleh attributed 50%.

It is difficult to resolve that issue other than arbitrarily. In any event it is clear, in my view, that the second osteotomy has materially contributed to the loss of range of movement in Mr Harris’ right knee.

Dr Bellemore submits that this disability is not a serious functional impairment in terms of daily living or employability. That contention is considered in the context of economic loss discussed below. Scarring

A separate matter addressed by the liability experts was scarring. It was noted on behalf of Dr Bellemore that only Mr Simonis from that group examined Mr Harris. The other liability experts accordingly offered no view about scarring. Mr Simonis attributed 20% of Mr Harris’ current scarring to the vascular repair carried out after Dr Bellemore cut the artery during the second osteotomy (T1102.17). Separately, he attributed 50% of Mr Harris’ scarring to the leg lengthening procedures, of which he attributed half to the second osteotomy. I accept the evidence of Mr Simonis on that issue.

Dr Bellemore acknowledges that, although scarring is largely a matter of appearance, it has probably contributed to Mr Harris’ psychiatric problems and also to the reduced range of motion in his right knee (as noted in the joint report of the current condition experts referred to above, Exhibit 40 at page 2.6). Degenerative change in the knee

The next issue considered by the liability experts was degeneration of the right knee joint with associated arthritic pain. Mr Harris claims that he suffers from “degeneration of the right knee joint - including the joint giving way and also decreased knee movement”. The issue of a decreased range of movement in the knee has already been considered. As to degeneration of the right knee joint, it was submitted on behalf of Dr Bellemore that there was no expert evidence to corroborate Mr Harris’ belief in that respect. However, the liability experts appeared to accept the likelihood, in light of Mr Harris’ medical history, of some degenerative processes in the joint (at T1102.26; see also the report of Mr Simonis dated 29 December 2008, Exhibit AY, paragraph 25.2, although that statement was made before Mr Simonis had examined Mr Harris).

The current condition experts also agreed that there was the prospect of progressive degenerative change in the knee, but appeared to attribute that condition to Mr Harris’ pre-operative state rather than either the leg lengthening or the second osteotomy.

On balance, I am satisfied that there is progressive degenerative change in Mr Harris’ right knee that has been slightly exacerbated by the second osteotomy. The liability experts ascribed less than 10% of that condition to the second osteotomy (T1102.26) and I accept that evidence. Tightness of the soft tissues

The next issue addressed by the orthopaedic experts on liability was the issue of “tightness of the soft tissues of the thigh combined with adhesion resulting in discomfort and pain”. There appeared to be broad consensus among the orthopaedic experts that Mr Harris suffers tightness in the soft tissues contributing to his reduced range of movement in the right knee. The current condition experts appeared to attribute that condition to the length of time spent by Mr Harris in the Ilizarov frame (joint report, Exhibit 40, page 5.2). They noted that the period was extended by the second osteotomy. The liability experts expressed the opinion that 10% of that condition was due to the second osteotomy. I accept their evidence on that issue. Discolouration in the foot

The next matter identified for the attention of the liability experts was discolouration of the right foot. Dr Bellemore accepts that Mr Harris has such discolouration but submits that it is of no consequence, other than possibly contributing to Mr Harris’ psychiatric condition (being of unattractive appearance). The liability experts indicated that they would defer to the vascular experts as to the cause of that condition.

The vascular experts, Dr Hanel and Professor Lord, were in agreement in the opinion that the discolouration of the right foot was due to disuse rather than to the vascular injury that occurred during the second osteotomy (T781.20). Accordingly, I am not satisfied that the discolouration in Mr Harris’ foot is due to any negligence on the part of Dr Bellemore. The walking stick

The next matter addressed by the liability experts was the curious issue of the walking stick. Mr Harris claims that he requires a walking stick to ensure stability. The liability experts said this issue provoked “continued discussion for some time” among them (T1103.1). As noted on behalf of Dr Bellemore, all of the orthopaedic experts believed that it would be unlikely for a patient, even with degenerative joint disease, to be using a walking stick at Mr Harris’ age (T1103.4). They appear to have inferred, on that basis, that the claudication was contributing to that need. On that assumption, they attributed 40% of the assumed need for a walking stick to the second osteotomy. However there was no evidence from the vascular surgeons to suggest that claudication might cause instability so as to produce the need to rely on a walking stick.

Mr Kelly asked one of the liability experts (during the concurrent evidence) whether Mr Harris would require a walking stick if he had not suffered the vascular injury “and the procurvatum” (see T1105.18 - T1105.33). There did not seem to be agreement among the experts on that issue. Mr Simonis referred to the probable existence of some muscle weakening contributing to the need for a stick (T1105.31), which is consistent with the fact that Mr Harris now lives an entirely sedentary life, doing very little for himself. If Mr Harris does need a walking stick now, I am not satisfied that Dr Bellemore’s negligence has caused that need. Nerve damage

Apart from the matters addressed by the experts, Mr Harris claims to suffer from “nerve damage”. There was no expert evidence to corroborate his belief in that respect. The general practitioner’s notes include a report from a neurologist who did nerve conduction studies in 1999 and concluded that Mr Harris’ nerves were all electronically intact, speculating that his difficulties may more likely be vascular than nerve related (Exhibit 17, page 293). I am not satisfied that Mr Harris suffers from any nerve damage caused by Dr Bellemore’s negligence. Vascular issues

The remaining physical disability to be considered from Mr Kelly’s list is “the vascular deficit in the plaintiff’s right leg and resulting claudication”. As already noted, Dr Bellemore inadvertently severed an artery while he was performing the second osteotomy. He called for assistance from a vascular surgeon, Dr Gregory Leslie, who replaced the damaged portion of artery with a piece of saphenous vein harvested from the left leg (Exhibit A, volume A, page 28).

The artery in question is referred to in the plaintiff’s claim as the femoral artery. The same artery is called the “popliteal artery” after it passes a certain point in the leg: T769.45, and that is the term used by Dr Leslie in his reporting letter to Dr Bellemore (Exhibit A, volume A, page 28). The vascular experts referred to it as the superficial femoral artery.

The bypass graft was effective to restore circulation through the artery, but became occluded shortly after the operation (T778.15). The collateral vessels are now well-developed (T778.24; T783.33), so that circulation is not so impaired as to threaten the leg (T778.25). However, Mr Harris claims he now has a vascular deficit that causes him to suffer from claudication symptoms, that is, pain with exercise. He claims that the pain arises “after mild exertion or walking more than 50 to 100 metres”.

Dr Bellemore accepts that claudication is a potential consequence of vascular injury, but questions the extent of the problem. The expert evidence established (and Dr Bellemore accepted) that any claudication from which Mr Harris does currently suffer is a direct consequence of the second osteotomy (T780.45).

There is some objective support in the evidence for the contention that there is some vascular deficit, described variously as mild or moderate. A duplex ultrasound in 1999 showed “mild dampened flow” in the proximal popliteal artery and some dampening within the superficial femoral artery (Exhibit 17, page 296). In April 2000 Professor Lord reported that the pulses in the right leg at rest were normal “except that the right popliteal pulse could not be felt” (Exhibit 22 at page 3.9; see also report of Dr Hanel, Exhibit AG at page 4.3). Professor Lord reported that his findings together with his consideration of earlier test results (including the duplex ultrasound) were consistent with “mild to moderate ischaemia of the right leg” (at page 4.5).

I am satisfied that some degree of claudication is suffered by Mr Harris. The difficulty is to disentangle the impact of that condition from the many other factors that contribute to Mr Harris’ present sedentary and solitary lifestyle. Dr Bellemore relied on the fact that Mr Harris told a vascular and endo-vascular surgeon, Dr Arthur Stanton, in early 2009 that “his knees are his main rate limiting factor, and therefore his arterial system is not symptomatic at the present time” (Exhibit 17, page 261). However I accept, as submitted by Mr Kelly, that those remarks are explained by Dr Stanton’s other report (Exhibit 17, page 260), which refers to Mr Harris’ “coping” with his walking distance at that time, suggesting that the vascular deficit was symptomatic, although not the most disabling aspect of Mr Harris’ condition.

It was submitted on behalf of Dr Bellemore that I would not conclude that any level of claudication actually suffered by Mr Harris is in fact disabling. If it was meant that the claudication is not disabling in any respect, I do not accept that submission. I am satisfied that Mr Harris has a vascular deficit that, although not threatening to the limb, causes him pain upon exertion to an extent that would preclude him from undertaking vigorous exercise of the kind he enjoyed in early 1996, including his visits to the gym and other enjoyable recreational activities. The pain and limitation of activity caused on that account is to be taken into account in assessing Mr Harris’ non-economic loss.

I do not accept, however, that Mr Harris suffers from claudication to an extent that would preclude him from recreational walking, shopping, cooking or undertaking light to moderate housework or from being employed in a sedentary position of the kind to which he returned in 1999. Dr Hanel described the degree of claudication as causing “some limitation to his exercise” (T778.26). Professor Lord described Mr Harris as having “moderate” claudication (T779.20). The overwhelming weight of the evidence was that the claudication suffered by Mr Harris should not prevent him from travelling to and from work or from sitting at a desk “doing his old job”: see report of Mr Simonis dated 29 December 2008, Exhibit AY at paragraph 25.1 - 25.6; joint report of experts on current condition, Exhibit 40 at page 3.5. THE PROCURVATUM

It remains to consider the vexed question of the procurvatum. Mr Harris contends that the procurvatum is one of the problems that could have been corrected or forfended if Dr Bellemore had fitted hinges or conical washers to the frame. For the reasons already explained, the procurvatum does not appear to have any functional significance for Mr Harris. Accordingly, the consideration of that contention is of doubtful utility.

In any event, a threshold issue (identified in Mr Kelly’s proposed additional question 32) is whether the Court should consider the contention at all. It was submitted on Dr Bellemore’s behalf that Mr Harris had not brought any claim based on an allegation that Dr Bellemore was negligent in failing to identify or correct the procurvatum deformity.

Mr Kelly effectively concedes that there is no particular of negligence that alleges, in terms, a failure on the part of Dr Bellemore to detect or appropriately respond to a procurvatum deformity. He submitted, however, that Dr Bellemore’s admission of negligence in failing to fit hinges or conical washers to the frame in effect comprehended an acceptance of responsibility for the failure to correct the procurvatum deformity, since the evidence up to that point was that the procurvatum deformity could have been corrected by hinges.

In that respect, Mr Kelly relied upon concessions made by Dr Bellemore under cross-examination as to the appropriateness of the use of hinges or conical washers to correct any procurvatum that developed during the femoral lengthening. He also relied on the evidence of Professor Saleh, who said (at T1070.20) that the “bony element” of the flexion deformity (apparently a reference to the procurvatum deformity) would be correctable with hinges.

Mr Kelly noted that a proposed question for the expert witnesses on liability directed to whether hinges would have corrected “the plaintiff’s varus and procurvatum conditions” was ultimately omitted by agreement of the parties after Dr Bellemore’s legal representatives complained that it was “no longer relevant, in view of the admissions now made by the defendant” (see T1208.12 - T1209.47).

In those circumstances Mr Kelly submitted, in summary, that an allegation of failure to correct the procurvatum deformity had always been part of the plaintiff’s case. He submitted, further, that the evidence up to that point was that hinges could have been used to correct the procurvatum and it was accordingly one of the “problems” responsibility for which was comprehended by Dr Bellemore’s admission of liability. He submitted that my decision permitting the orthopaedic experts on liability (other than Professor Saleh) to answer a question directed to that issue was based on a misperception and that it was unfair to the plaintiff to have permitted Dr Bellemore to “re-agitate” the issue.

The difficulty with those submissions is that there is not now, and was not at the time Dr Bellemore made his admission of liability, any square allegation pleaded against him of negligent failure to correct the procurvatum deformity. Further, as noted on behalf of Dr Bellemore, no such issue was articulated as a question for the trial Judge before the hearing, notwithstanding my direction to the parties (made 13 February 2009) to formulate such issues in advance of the hearing (as contemplated in Practice Note SC CL 7, which governs proceedings in the Professional Negligence List). In response to that direction, the plaintiff unhelpfully identified the following questions for my determination: “1. Did the defendant owe the plaintiff a duty of care? 2. Did the defendant breach that duty of care in the manner particularised in any of the particulars of negligence set out in the Further Amended Statement of Claim filed on 2 February 2009? 3. If the answer to 2 is yes, in respect of each breach of duty, did the breach cause the plaintiff injury, loss and/or damage? 4. What is the extent of the plaintiff’s injury, loss and/or damage caused by breach(es) of the defendant’s duty of care owed to the plaintiff?” In those circumstances, I do not accept Mr Kelly’s submission that “procurvatum has been an issue in these proceedings from years ago” (T1296.4). It is not enough, in my view, that it was referred to in expert reports, or in Mr Kelly’s opening address. If Dr Bellemore was to face that particular allegation, it should have been pleaded. The fact that Dr Bellemore was asked some questions directed to that issue by Mr Kelly in cross-examination does not cure the prejudice of permitting the allegation to be made against him now.

Accordingly, it is neither necessary nor appropriate to consider whether it is established that the procurvatum condition would probably have been corrected by the use of the hinges Dr Bellemore admits he should have fitted to the frame. In those circumstances, question 12C posed in Mr Kelly’s additional questions for the trial Judge does not arise. Question 15: “What would the plaintiff’s prognosis have been (from a physical perspective) but for any breach of duty by the defendant?”

Before the surgery, Mr Harris had varus alignment in the right knee and mild associated ligamentous laxity. The joint experts on current condition agreed that those conditions “would probably have undergone progressive degenerative change resulting in the need for total knee replacement in about 20 to 30 years or later” (joint report, Exhibit 40 at page 6.5). As to Mr Harris’ prognosis, they agreed that the major complication of the second osteotomy was the vascular injury (page7.1). They also agreed, however, that there would have been less restriction of knee flexion but for the second osteotomy, which would have extended the period of immobilisation in the frame. The prognosis of long-term degeneration in the knee was not, in their opinion, altered by the second osteotomy.

As to the significance of the vascular injury, Dr Stephen expressed the view that this would not prevent Mr Harris from having further orthopaedic surgery in the future. Dr Kossmann disagreed, expressing the opinion that many orthopaedic surgeons would decline to operate on Mr Harris in the future.

The vascular experts agreed that the only prognostic problem was the issue of future surgery (T781.43; T782.9). They agreed that there would be an enhanced risk and that orthopaedic surgeons would be very wary of operating on Mr Harris again. As submitted on behalf of Dr Bellemore, neither suggested that such surgery would be impossible but each emphasised that there would be a need for any surgeon to be very careful.

Dr Kossmann thought that, if vascular complications did prevent a total knee replacement, Mr Harris would probably end up in a wheelchair and would depend on care from others (T1193.46). Dr Stephen disagreed. He said: “He would end up like my mother-in-law, I suppose. She's 92. She's got osteo-arthritic knees. She's living in a community home. She gets around reasonably well, but her walking distance is limited by it, but there is no way in the world she will end up in a wheelchair.” (1194.12).

I do not think that I should compare Mr Harris with Dr Stephen’s mother-in-law. Further, I think Dr Kossmann is right that, having regard to Mr Harris’ present condition, he may well face substantial reluctance on the part of orthopaedic surgeons to operate on him in the future. On that basis, I am satisfied that there should be some allowance for the prospect that, in about 20 or 30 years, Mr Harris may need a total knee replacement and be unable to undergo that operation due to concerns as to his vascular condition. I accept that he would need a high level of care in that event. That issue is addressed further below. THE PLAINTIFF’S PSYCHIATRIC DISABILITIES Question 16: “What psychiatric disabilities does the plaintiff now suffer from?”

Mr Harris claims past and future economic loss on the premise that, as a result of his treatment by Dr Bellemore, he suffers from depression of such severity that he is totally and permanently incapacitated from working in any occupation. The issues surrounding that claim were addressed by three psychiatric experts in the proceedings. They were Dr Williams (Mr Harris’ treating psychiatrist) and two medico-legal experts, Dr Gertler on behalf of Mr Harris and Dr Brown on behalf of Dr Bellemore.

The three psychiatric experts conferred and produced a joint report written by Dr Brown on behalf of all three (Exhibit 39; and see T1113.5).

As already noted, Mr Kelly expressly disavowed reliance on the contention that Mr Harris was suffering from any special psychiatric vulnerability when he first approached Dr Bellemore for treatment. On that premise, the psychiatrists were asked their opinion as to Mr Harris’ psychiatric condition “from 1996 to date”. All three were in agreement that Mr Harris’ clinical presentation was consistent with a chronic Major Depressive Disorder (according to criteria specified by the American Psychiatric Association) during that period.

The experts agreed that it was difficult to identify when the disorder developed, but agreed that Mr Harris’ symptoms were probably mild in the early period from 1996 onwards, gradually increasing in severity over the following years. They also agreed that Mr Harris may have been suffering from emotional stress or mild anxiety or depressive type symptoms during 1994 to 1995, but not so as to have qualified for a specific diagnosis at that stage.

The experts discussed whether Mr Harris was already suffering from dysfunctional personality traits before 1996. Based on a review of Dr Dossetor’s records, Dr Brown thought that Mr Harris already displayed “both obsessional and avoidant traits in his personality style” before 1996, suffering from “perfectionistic qualities, low self-esteem and social anxiety” in the years leading up to his first approach to Dr Bellemore. Drs Williams and Gertler agreed, but considered that the social avoidance behaviour arose secondary to issues relating to Mr Harris’ shortened height, rather than representing underlying personality traits.

The three experts agreed that, assuming acceptance of the history given, Mr Harris continued to suffer from a chronic Major Depressive Disorder at the time they prepared their report, disagreeing only as to its severity. Drs Gertler and Williams assessed the intensity of the disorder as being moderately severe, while Dr Brown considered that Mr Harris’ symptoms were probably of a milder intensity than he reported.

It was Dr Brown’s assessment that Mr Harris’ recent presentation with severe depressive and “cognitive type” complaints indicated the development of abnormal illness behaviour. That is not a diagnosable psychiatric disorder, but rather a label for dysfunctional attitudes and abnormal behaviours that develop in relation to illness. Dr Williams did not agree that any abnormal illness behaviour had developed. Dr Gertler appeared to characterise it as a possibility.

The issue of the development of abnormal illness behaviour in Mr Harris is considered in relation to question 17 below. For the reasons explained in the context of that discussion, I accept that there is a significant measure of exaggeration in Mr Harris’ description of some of his psychiatric symptoms, particularly in respect of his cognitive complaints. Exaggeration, however, is not necessarily inconsistent with the existence of an underlying depressive condition of some intensity.

The difficulty I have in accepting Dr Brown’s assessment as to the intensity of Mr Harris’ depressive disorder is that I think it ignores other indications, not derived from the history given by Mr Harris directly to his doctors, that he is a man who is now functionally quite impaired by depression. He lives a completely reclusive existence, undertaking no form of employment or recreational or social activity whatsoever. He has, it appears, surrendered entire responsibility for his own personal care to his mother. It is difficult to accept that he would choose to endure that life for an ulterior purpose. On that basis, although I accept that Mr Harris has exaggerated his disabilities and understated his functional capacities, I would infer from his current circumstances that his depression has worsened over time and become moderately severe at some point.

The opinions of Dr Williams and Dr Gertler in that respect may readily be accepted when assessed against an analysis of the events that have occurred, including the choices Mr Harris has made, over the past many years. To identify the causes of his current condition, however, is a more complex task.

Based on the expert evidence and the evidence of Mr Harris himself, I am satisfied that he suffers from a moderately severe chronic Major Depressive Disorder and was developing symptoms of emotional stress, anxiety and depression probably from at least 1994. Question 17: “Is the plaintiff exaggerating his cognitive disabilities particularly his memory loss and concentration. If so to what extent?”

Mr Harris gave evidence that, since being treated by Dr Bellemore, he has suffered from difficulties in concentration and short-term memory loss (T74.36). The significance of those claims is that Mr Harris attributes his poor performance at BHP (and his subsequent loss of employment) to those difficulties (eg T218.15).

Mr Harris claims that he did not have any difficulties of that kind before 1996 (T75). However, that is contradicted by the notes of his general practitioner, Dr Yuen. Those notes record a history in March 1994 of difficulties in concentrating for 7 months and a history in January 1995 of loss of memory and headaches (Exhibit 17, page 2). Mr Harris claimed not to recall those complaints (T91).

It was submitted on behalf on Dr Bellemore that Mr Harris is, at least some of the time, consciously exaggerating the severity of any cognitive disability. Mr Bozic relied in that respect on the evidence of a psychologist, Mr John Raue, who conducted a vocational assessment of Mr Harris at the request of the solicitors for Dr Bellemore (Exhibit 18). Reliance was also placed on the report of Ms Rebecca Campbell, a clinical psychologist to whom Mr Harris was referred by Dr Williams (his treating psychiatrist) (Exhibit 17, pages 64 - 67).

For the purpose of assessing vocational capacity, Mr Raue explored Mr Harris’ personal, educational and employment backgrounds and also conducted psychometric evaluation of his intellectual skills and personal preferences. His conclusions were damning. In his written report (Exhibit 18), Mr Raue stated: “It is my opinion that he did not present an accurate reflection of his current level of cognitive skills and abilities in this assessment and actively tried to present a picture of almost complete loss of cognitive skills and capacities. As he presented, if his performance is an accurate reflection of his current capacity, he would be virtually unemployable given the slowness of completing tasks. His personal presentation style in which he was slightly dishevelled and appeared extremely slow in most of his responses would also make it extremely difficult for any employer interviewing him to have confidence in him. The difficulty of course is, as I have indicated, that I do not believe that this is an accurate reflection of his skills and abilities, but without a willingness to demonstrate these it is not possible to assess what his actual capacities may or may not be.”

Mr Raue based his conclusion, in part, on his assessment that Mr Harris deliberately misspelled words. He said that Mr Harris had spelled some words almost completely correctly and then paused before making “what seemed like quite a silly last letter entry” (Exhibit 18, page 7). With mathematical tasks, Mr Raue’s assessment was that Mr Harris went about the tasks in a well-structured way and completed calculations that would have produced the correct answer. However, at the last moment, Mr Harris would write an incorrect answer (T518). Mr Harris also presented as having forgotten how to pronounce very simple words, which Mr Raue stated “doesn’t even occur with heavily demented patients” (T520.6).

In cross-examination, Mr Kelly pressed Mr Raue to produce the underlying test results that he relied upon to support his conclusion. Mr Raue provided a series of illustrations of the matters that had concerned him. After hearing that evidence (particularly at T532-535 and T537-539), I have no difficulty accepting the opinions expressed by Mr Raue. The evidence given by Mr Harris in these proceedings disclosed that, whatever other disabilities he may have, he is both intelligent and astute. The results of the tests administered by Mr Raue cannot be reconciled with the intellectual acuity displayed by Mr Harris in Court.

Mr Kelly sought to obtain a concession from Mr Raue that Mr Raue would not recommend Mr Harris to any sort of employer. Mr Raue in substance agreed, but only on the basis of the way in which Mr Harris had presented to Mr Raue during the assessment and Mr Raue’s opinion that Mr Harris was deliberately feigning his responses (T524.37-T525.22).

I accept, as submitted by Mr Bozic, that Mr Raue’s evidence points to the unavoidable conclusion that Mr Harris exaggerated his cognitive disabilities when he presented to Mr Raue, and did not demonstrate his true vocational capacity.

That conclusion is further supported by the contents of the report of Rebecca Campbell, the clinical psychologist to whom Mr Harris was referred by his own psychiatrist, Dr Williams. Ms Campbell thought that Mr Harris’ extremely slow responding and the degree of incorrect answers tended to suggest the possibility of “factitious responding”. She said: “Whilst intentional malingering seems unlikely, perhaps other manifestations of factitious responding may have played a role. These could include subtle attempts to exaggerate deficits. There may be perceived secondary gain, despite the sacrifices of freedom and ambition.”

Added to that is the clear evidence of the orthopaedic experts on current condition, who agreed (page 4.5 of the joint report, Exhibit 40) that “Mr Harris was physically capable of more than he was able to do” and that “some of the limitations on his activity were self-imposed”.

All of that evidence leads me to conclude that, if Mr Harris had difficulty attending to the tasks expected of him when he returned to BHP in 1999, that was not due to any cognitive disability or any difficulty memorising “certain parts of the job”, as alleged by Mr Harris (T218.20). I am not satisfied as to that aspect of Mr Harris’ claim. Question 18: “Has the plaintiff’s psychiatric disability been caused by any breach of duty by the defendant? (i.e. but for the negligence of the defendant would the plaintiff have suffered from the psychiatric disability in any event?)”

The question is whether it is established that Dr Bellemore’s breach of duty caused or materially contributed to Mr Harris’ present psychiatric state (in the sense of being a necessary condition for that state).

A question was directed to the psychiatric experts in the following terms: “2a During the course of the leg lengthening carried out by Dr Bellemore the plaintiff underwent a second osteotomy which resulted in his femoral artery being severed, claudication symptoms in his right leg after exertion, and a posterior displacement of the right femur. Assuming that the plaintiff did not undergo the second osteotomy and still suffered all of the following outcomes: (a) two pins breaking in February 1997; (b) premature consolidation in early January 1997 resulting in the need to break the callus bone through an increased rate of distraction; (c) scarring of the right thigh; (d) degeneration of the right knee joint with associated arthritic pain; (e) tightness of the soft tissues of the thigh combined with adhesion resulting in discomfort and pain; (f) discolouration of the right foot; and/or (g) the requirement of a stick to ensure stability while walking, would he have suffered from the same psychiatric condition in any event?”

Some care must be taken in assessing the evidence given in response to that question, since the disabilities assumed in the question do not completely align with the findings I have made. The evidence of the experts in response to the question is, nonetheless, plainly of assistance in determining the causes of Mr Harris’ present psychiatric condition.

The experts agreed that the pin breakages and the premature consolidation, although distressing to Mr Harris at the time, probably only contributed to Mr Harris’ depressive symptoms for a limited period of time and did not contribute to any significant extent to his on-going mood complaints (joint report, Exhibit 39, page 4.8).

However, as to the persisting disabilities (listed in items (c) - (g)), there was a stark divergence of opinion. Dr Williams, the treating psychiatrist, expressed the opinion that, had the second osteotomy not been performed, Mr Harris would have recovered completely from the mild depressive symptoms which had developed following the first surgery. He was recorded in the joint report as having considered that items (c) - (g) above “could have” contributed to Mr Harris having developed the same condition. However, in cross-examination he stated that those outcomes “probably would not have” contributed to the development of the same condition (T1121-T1122).

Dr Gertler expressed the opinion that, had Mr Harris not experienced the second osteotomy and the severing of the femoral artery, his psychiatric condition would not have been as severe in intensity and would not have caused him to have any continuing disability.

Dr Brown expressed the opinion that Mr Harris would have developed the same psychiatric condition even if his femoral artery had not been severed. She based that opinion on her assessment of the distress experienced by Mr Harris as a result of the other adverse outcomes listed in points (c) - (g). Dr Brown expressed the further opinion that Mr Harris had developed abnormal illness behaviour related to his lengthy involvement in these proceedings. She thought that was a significant factor contributing to his recently reported worsening of depressive symptoms and memory problems. She also considered that Mr Harris has continued to suffer from dysfunctional personality traits up to the present time. Credit attack on Dr Brown

Before turning to assess that evidence, it is necessary to consider submissions made on behalf of Mr Harris as to Dr Brown’s credit. Mr Kelly submitted that the Court should not accept her opinion. The principal basis for that submission was that a view expressed by Dr Brown shortly before the psychiatric experts conferred with each other (that Mr Harris would have suffered from the same psychiatric condition in any event, regardless of the complications of the second osteotomy: Exhibit AAF) had not been expressed by her previously.

Mr Kelly submitted that the Court could infer that it was not Dr Brown’s genuine opinion and had only been expressed as a result of Dr Bellemore’s admission of liability for the consequences of the second osteotomy.

Mr Bozic submitted, to the contrary, that Dr Brown had expressed that view as early as 17 November 2005 when she stated (in a report of that date): “However, had Mr. Harris developed pain and physical restrictions secondary to his underlying injury, he may just as likely have developed a similar type of depressive syndrome, both because of the distressing nature of chronic pain symptoms and because of the restrictions which may have arisen in terms of being involved in sporting and leisure time pursuits.”

The impugned view (that Mr Harris would have suffered from the same psychiatric condition regardless of the second osteotomy) was expressed by Dr Brown in a report dated 29 April 2009. That report was not tendered or relied upon in any way by Dr Bellemore. Mr Bozic said that it had been prepared when Dr Bellemore’s legal representatives were requested to provide the plaintiff with advanced notice of what Dr Brown was likely to say in relation to the questions that were being asked of the experts at the joint conference (T1360.43). However, at the conclusion of the hearing, Mr Kelly tendered the relevant extract of the 2009 report, apparently for the purpose of establishing that the view expressed in that report was not consistent with the view expressed in 2005, contrary to Mr Bozic’s submission. Separately, it was suggested in cross-examination that the view expressed in the report of 29 April 2009 was different from the final view reached by Dr Brown after the joint conference, recorded in the joint report (Exhibit 39). In particular, Mr Kelly noted that Dr Brown had based her views on changing assumptions as to the sequelae of the surgery.

I have difficulty seeing this as a point that undermines Dr Brown’s credit. To the extent that there are differences between the views Dr Brown has expressed at different times, those differences are completely understandable having regard to the different material available to her at different times, the focus of the questions posed for her consideration and the discussions that took place during the joint conference. I am not persuaded that I should reject the evidence of Dr Brown on the strength of Mr Kelly’s submissions as to her credit. Conclusion as to causation of psychiatric condition

I have not found this issue easy to resolve. In the end, I am not satisfied that Mr Harris’ psychiatric disability was caused or materially contributed to by Dr Bellemore’s breach of duty in failing to fit hinges or conical washers to the frame. In my view, the opinion expressed by Dr Brown (that Mr Harris would have developed the same psychiatric condition even if his femoral artery had not been severed) accords with common sense and is well sustained by a detailed review of the facts established by the evidence before me.

I did not understand it to be suggested on behalf of Mr Harris that Dr Bellemore’s failure to use hinges (resulting in the need to correct the varus deformity in surgery) increased the risk of psychiatric injury such as to warrant a finding of the kind referred to by McHugh J in Chappel v Hart at [27]. I do not think that kind of analysis is logical in the present case in any event, having regard to the wide variety of events and decisions that may ultimately have affected Mr Harris’ mental state.

In my view, a careful consideration of the evidence lends overwhelming support to the view that Mr Harris’ present mental state is the result of a complex combination of reactions to many events since childhood, from which Dr Bellemore’s negligence cannot be singled out as a necessary condition. Further, I am satisfied that the dysfunctional personality traits described by Dr Brown (of obsessive and avoidant behaviour) and a dysfunctional or exaggerated response to the Ilizarov treatment and the present litigation have substantially contributed to Mr Harris’ present condition.

A starting point is to recall the uncontroversial fact that, even before he encountered Dr Bellemore, Mr Harris was deeply unhappy with his physical condition. The treatment of his earlier injuries had left him shorter than his twin and he was determined to find an orthopaedic surgeon who would make him taller again. I have already referred to the insight to be gained into his emotional state at that time from the letter he later wrote to Dr Bellemore (Exhibit N). I am satisfied that, well before he encountered Dr Bellemore, Mr Harris was fixated with the notion that, if only his perceived physical imperfections could be corrected by surgery, his unhappy emotional state would be resolved. So much is clear from his perseverance in pursuing a surgical solution after Dr Harbison and Dr Pinczewski had each recommended against that course; the contents of his discussions with Dr Dossetor and the fact that he was prepared to take up to twenty months off work to undergo the surgery.

Mr Harris’ decision to take so much time off work is significant in itself. BHP had a discretionary sick leave policy for staff (T790.33). In August 1996, Mr Harris approached Mr Corkish, a human resources manager at BHP, to discuss the prospect of an extended period of sick leave to enable him to have the surgery. Mr Corkish gave evidence that Mr Harris told him the surgery was required “to correct some deformities in his legs which had arisen out of some earlier motor accidents” (statement dated 9 February 2009; see also T796.32). Mr Harris was granted sick leave for that purpose.

Mr Harris wanted Mr Corkish to keep the nature of the illness and the length of time that Mr Harris might be off work confidential. Mr Corkish honoured that request. Mr Harris does not appear to have informed Mr Corkish at any stage that the deformity related only to the right leg and that a substantial component of the treatment was to make him taller.

Mr Corkish maintained contact with Mr Harris while he was on leave. Before Mr Harris went to Russia (in April 1998), Mr Corkish sought reasons as to why the company should extend Mr Harris’ sick leave. Mr Harris told him there had been some problems with the surgery and that “he was going to Russia to have that corrected” (T796.44).

As already noted, the payment of sick leave was discontinued from 24 May 1998 (Exhibit O, statement dated 9 February 2009, attachment A). It was noted at that time that Mr Harris had a substantial outstanding accrual of annual leave.

Mr Harris’ appetite for correction of perceived defects through surgery extended beyond his desire to become taller. He twice sought cosmetic revision of his scars (Exhibit 17, pages 316 and 317). It was Mr Harris who requested surgical correction of the varus deformity from Dr Bellemore (Exhibit O, paragraph 105). He also wanted Dr Bellemore to “tidy up” a wound left after removal of the broken pins (Exhibit O, paragraph 94).

Even after the Ilizarov treatment, Mr Harris continued to seek surgical treatment, taking the extraordinary decision to have cosmetic surgery to correct a perceived deformity in his nose within months after the second osteotomy.

He has also been back to see Dr Pinczewski since the second osteotomy, apparently seeking further surgical improvement of his leg. On 7 September 1999, Dr Pinczewski reported to Mr Harris’ general practitioner in the following terms (Exhibit 17, page 280): “Unfortunately, Paul had continuing problems especially with exercising, and decided to undergo right sided leg lengthening and realignment under the care of Michael Belmore (sic). A series of complications ensued, including retention of screw fragments in the distal femur, fixed flexion deformity at the distraction site, a complete blockage of the femoral artery, as well as exacerbation of Paul’s patellofemoral symptoms. As you are aware, Paul is introspective and keenly analytical regarding his persistent symptoms. Unfortunately, management of each individual component with surgery is unlikely to result in a better outcome of function or symptoms for the whole of the lower limb.”

At the time of that consultation, Mr Harris was being pressed by BHP to return to work. Mr Kelly submitted that the reason Mr Harris did not return to work during the period after he returned from Russia in late 1998 up until December 1999 was that he still had a number of treatment matters to address and, in addition, that he was suffering from depression at that time. Mr Kelly relied on the report of Dr Tinning to Mr Harris’ solicitor dated 28 June 1999 where Dr Tinning stated that Mr Harris had suffered from severe anxiety and depression which Mr Harris ascribed to “the pain and discomfort and the unsatisfactory result of the surgery” (Exhibit 17, page 287).

As to the “treatment matters” that Mr Harris was addressing during 1999, I do not see anything in the correspondence contained in Dr Tinning’s records (Exhibit 17) such as to warrant further time off work. Two referrals to orthopaedic surgeons were met with the response that further surgery was not recommended (Dr Mervyn Cross in February 1999 and the referral to Dr Pinczewski in September 1999 referred to above: Exhibit 17, pages 280 and 297). Dr Cross advised Mr Harris to continue on an intensive exercise programme. Similar recommendations were given by Dr Leslie in March 1999 and a neurologist in June 1999 (Exhibit 17, pages 292 and 288).

In my view, Dr Tinning’s records provide support for the inference that Mr Harris was obsessively fixated during that period, as ever, upon perceived physical disabilities and the endless pursuit of medical solutions at the expense of all else.

Mr Harris returned to work in December 1999 after being given an ultimatum by BHP. A considerable amount of hearing time was devoted to examining why he did not perform well upon his return and why he was ultimately dismissed in April 2002. As noted in the discussion of question 17 above, Mr Harris attributes his poor performance to difficulties in concentration and short-term memory loss due to his treatment by Dr Bellemore. For the reasons already stated, I do not accept that any inability on Mr Harris’ part to attend to the tasks assigned to him when he returned to work at BHP in 1999 was attributable to any cognitive disability.

Based on the contemporaneous records relating to Mr Harris’ performance reviews (Exhibit 23), I have reached the conclusion that Mr Harris’ poor performance was rather a reflection of the dysfunctional personality traits identified by Dr Brown and, in particular, Mr Harris’ obsessive and avoidant behaviour. Further, I am satisfied that those difficulties were compounded by a loss of skill during Mr Harris’ extended period of absence. As submitted on behalf of Dr Bellemore, this presented serious difficulties for Mr Harris when he returned to work (T793-794, T1134.14; Exhibit 23, page 30).

When he first returned to work, Mr Harris made a request to become involved with new technology in the software engineering field. To accommodate that request, he was not returned to the role he had occupied before he went on extended leave (Exhibit 23, page 1). As early as April 2000 Mr Harris’ new supervisor, Mr Conran, detected “a reluctance to take on responsibilities” and expressed the view that Mr Harris should have returned to work “a lot sooner”. His first formal appraisal in 2000 assessed his performance as unsatisfactory. He complained that the reason he had difficulty progressing allocated tasks was because he had not received the support or help he had asked for, but that complaint is not borne out by the contemporaneous records. In September 2000, he was referred to an occupational psychologist employed by BHP, Mr Neil Harvey, for counselling.

Mr Harris received a further unsatisfactory performance review in 2001 and had something of a falling out with his supervisor at that time. In September 2001, Mr Harris was told to take annual leave “to sort himself out” (Exhibit 23, page 24). A summary of his performance after he returned to work in early 2002 identified, in addition to an assessment that his performance remained unsatisfactory, a series of observations on Mr Harris’ behaviour. Those included his having difficulty accepting responsibility for his own actions; a poor attitude to the completion of tasks; difficulty accepting authority and priorities imposed; a concern that he was not an effective team player and had a strong tendency to keep to himself; difficulty accepting advice and being easily distracted from the task at hand.

In his evidence, Mr Harris attributed his difficulty accepting advice to his having lost faith in anyone in a position of authority due to his experience with Dr Bellemore (T737.30). I do not accept that evidence. Mr Harris had no difficulty telling Dr Bellemore exactly what he thought of him in early 1998. The suggestion that there is a link between Mr Harris’ treatment by Dr Bellemore and his subsequent friction with his supervisors at BHP is, in my view, quite disingenuous.

The occupational psychologist, Mr Harvey, provided a report to Mr Harris’ solicitor for the purpose of these proceedings in which he recorded that Mr Harris had been referred to him as a result of anxiety and depression following an injury and subsequent operation to his right leg (Exhibit R). However, that appears to have been a conclusion reached in 2002 based on an acceptance of the history provided by Mr Harris in the context of the pending litigation. Mr Harvey no longer has his notes of his first several consultations with Mr Harris (T149.44). The early notes he does have refer to Mr Harris’ difficulties in learning new technology. A note dated 6 December 2000 refers to the proceedings against Dr Bellemore as the only thing causing him concern at that time, but no connection is drawn between any adverse outcome of Dr Bellemore’s treatment and the difficulties being encountered by Mr Harris in his employment.

Mr Harris was dismissed by BHP in April 2002. In November 2002 he asked Mr Harvey to write a letter stating that he was unfit for further work “now and in the future” (Exhibit S). Mr Harvey refused, as he believed Mr Harris could obtain other work at that time.

When Dr Williams first saw Mr Harris in early 2003, he attributed his depression to a combination of matters. Dr Williams’ handwritten notes (apparently of his initial consultation with Mr Harris) conclude with the following (Exhibit 17, page 141): “acceptance NOT change - no more operations - get back to work”

In his first reporting letter to the general practitioner dated 22 May 2003 (Exhibit 17, page 143), Dr Williams stated: “The essence of the matter is that since the first surgical procedure, which led to many complications and an unsatisfactory result, he has become progressively depressed. He has lost his job, and is currently unemployable and in a major financial crisis, as he is not entitled to a disability support pension because of his assets. He is embroiled in litigation with an uncertain outcome, and the possibility of massive personal legal expenses. Just where in the overall scheme of things he became depressed is not clear, but he has certainly been depressed for a number of years, and in general things are getting worse.”

The opinion expressed by Dr Williams in the psychiatric experts’ joint report (that Mr Harris would probably have undergone a full remission of his mild depressive symptoms following the first surgery had the second osteotomy not been performed) was based on the “last straw phenomenon”. Dr Williams explained that phenomenon by reference to the example of “very, very courageous and well-endowed people” such as police officers who “cope with murder, mayhem and mangled corpses for decades, and one last thing happens and they never recover” (T1127.27).

I doubt whether Mr Harris could ever have been characterised as being so robust (psychologically) as the kind of police officer referred to in Dr Williams’ analogy. More importantly, I do not think there is anything in Mr Harris’ history, as recorded in the many medical records before me (including Dr Williams’ own notes) to support Dr Williams’ “last straw” theory in the present case. Mr Harris was not coping with life before the surgery and he did not completely stop coping after the surgery. His medical history discloses a nagging dissatisfaction with himself from an early age due to the treatment he received after his childhood accidents. The pervading theme of Dr Williams’ notes is identification of the need for Mr Harris to stop seeking medical solutions, to accept his imperfection (including the imperfect outcome of the Ilizarov surgery) and to go back to work. The process seems to me to have been one of inexorable decline rather than of damage caused by a “last straw”.

Mr Kelly placed reliance upon the report of Dr O’Neill, a consultant neurologist who saw Mr Harris in April 2003. The history recorded by Dr O’Neill included the following (Exhibit 17, page 310): “Mr Harris’ main concern is impaired concentration since the operation of 5/5/97. He said trial of two different anti-depressants has made no difference.”

The history taken by Dr O’Neill confirms that Mr Harris was complaining of cognitive deficits which he (Mr Harris) apparently attributed to the vascular injury and consequent blood loss that occurred during the second osteotomy. However, that history does not demonstrate that Mr Harris attributed his depression to his psychological reaction to that surgery, to the exclusion of other events. In any event, the investigations of both Dr O’Neill and the psychologist, Ms Campbell failed to provide any objective support for Mr Harris’ cognitive complaints.

Dr O’Neill told Mr Harris that “it was highly unlikely the complicated operation resulted in any organic brain damage” and that “his impaired concentration might simply be a consequence of depression or even an angry fixation over the event”. After performing an MRI scan and electroencephalogram several weeks later, Dr O’Neil concluded that Mr Harris’ complaints of memory impairment and personality change “must have a psychosomatic basis” (Exhibit 17, page 312). As already noted, Ms Campbell identified the possibility of “factitious” response.

As submitted on behalf of Dr Bellemore, Dr Williams’ “last straw” theory is further contradicted by events after the second osteotomy, including Mr Harris’ trip to Europe to visit relatives in 1998, his subsequent treatment in Western Siberia to lengthen the left leg (Exhibit O, paragraphs 162 and 163) and his return to work at BHP for two years.

Dr Gertler considered that, had Mr Harris not experienced the second osteotomy and the severing of the femoral artery, his psychiatric condition would not have been as severe in intensity and would not have caused him to have a continuing disability (joint report, page 5.3; T1123.4). His opinion was based, however, on an acceptance of the history provided to him by Mr Harris. A review of Dr Gertler’s reports discloses that he has been told by Mr Harris that the surgery was the cause of his depression and that Dr Gertler has accepted that proposition. In effect, as submitted by Mr Bozic, the history has become the diagnosis. By way of illustration, in his report dated 28 May 2001, Dr Gertler recorded (at page 6): “Mr Harris in my opinion is currently suffering from an adjustment disorder with depressed mood. This has developed on the basis of the surgical procedures which he underwent in 1996-97 and which proved unsatisfactory to him in overcoming, not only physical problems related to earlier procedures, but also mild feelings of inadequacy and low self-esteem associated with being shorter than his twin brother. Mr Harris had however largely come to terms with those feelings prior to 1996.”

I am not satisfied that Dr Gertler’s opinion was based on a complete and accurate history of events relevant to Mr Harris’ present psychiatric condition.

For those reasons, I have come to the conclusion that I should accept the evidence of Dr Brown. Based on her opinion and my own analysis of the evidence, I am not satisfied that Dr Bellemore’s negligence caused or materially contributed to Mr Harris’ psychiatric disability. In my view, Mr Harris would more probably than not have reached his present psychiatric state regardless of the negligence of Dr Bellemore. Question 19: “Have these legal proceedings caused or contributed to the plaintiff’s psychiatric disability?”

It is not entirely clear to me why a question in these terms has been posed for my determination, since neither party contends for a finding that these proceedings have caused or contributed to Mr Harris’ depression. Mr Harris contends that the cause of his psychiatric state is Dr Bellemore’s negligence. Dr Bellemore does not contend that the proceedings have become an intervening cause or contributing factor in that condition. Rather, he contends that the impact of the litigation on Mr Harris’ mental state has been to escalate his abnormal illness behaviour or “malingering”.

It may be accepted, as noted by Mr Bozic, that Dr Williams’ view as to the severity of Mr Harris’ psychiatric impairment changed markedly on 16 June 2008 when he saw Mr Harris in the presence of Mr Harris’ mother. Dr Williams’ notes of that consultation include a record of his having been told that Mr Harris’ new solicitor had said that the main part of Mr Harris’ claim would be for psychiatric disability (as, indeed, it is) (Exhibit 17, page 48).

In his report of that consultation, Dr Williams stated: “[Mr Harris’ mother] said that he cannot stand, long enough to cook, wash up, and so forth, and has trouble bending over. Her major concern is, who will look after him when she is gone”.

Mrs Harris gave evidence to similar effect in the proceedings, asserting that she has to do everything for Mr Harris, and I accept that is her perception. In my view, however, Mr Harris’ actual need for assistance is nowhere near as great as the level of assistance she provides (and he accepts). On that basis, I think it is likely that Mrs Harris’ presence at the consultation with Dr Williams created an exaggerated picture of the true extent of Mr Harris’ disabilities. A number of expert witnesses in the proceedings did not accept that Mr Harris’ physical disabilities are as great as he claims (see report of Mr Simonis dated 29 December 2008, Exhibit AY at pages 24 to 25; report of orthopaedic experts on current condition, Exhibit 40 at pages 3 to 4; report of Heather Tchan, Exhibit AB at page 48).

Further, as submitted on behalf of Dr Bellemore, there is overwhelming evidence in the contemporaneous medical records that from at least as early as 2003, Mr Harris was becoming fixated with the legal proceedings. In addition to the notes of Mr Harvey, there are several references in Dr Williams’ records to the litigation being an impediment to Mr Harris’ return to work (for example Exhibit 17, pages 108 and 77; see also Dr Williams’ report dated 19 February 2007, Exhibit AAC).

I think it is very likely that Mr Harris’ fixation with the litigation has been the principal cause of his failure to seek employment since being dismissed by BHP. That must inevitably have coloured his perception of his current condition and given rise to a strong temptation to present a picture of himself that vindicates his choice to become a full-time plaintiff over the past eight years rather than a full-time engineer.

As noted at the outset of this discussion, however, I do not understand question 19 to be a factual issue in the proceedings except so far as it assists in an assessment of the true extent of Mr Harris’ disabilities. Question 20: “What is the plaintiff’s prognosis from a psychiatric perspective and, in particular, will the plaintiff’s psychiatric condition improve or resolve following the conclusion of these legal proceedings?” Question 21: “What would the plaintiff’s prognosis have been (from a psychiatric perspective) but for any breach of duty by the defendant?”

For the reasons stated above in respect of my conclusion that Dr Bellemore’s negligence was not a cause of Mr Harris’ psychiatric condition in the relevant sense, I am satisfied that Mr Harris’ prognosis from a psychiatric perspective would have been the same or substantially the same even if Dr Bellemore had not breached his duty of care. Accordingly, no further issue is required to be determined relating to questions 20 and 21. PAST ECONOMIC LOSS 4 November 1996 to 6 December 1999

The first issue to consider is whether Dr Bellemore’s negligence caused Mr Harris any financial loss during the period of treatment and recovery leading up to Mr Harris’ return to work in December 1999.

On the assumption, as I have found, that Mr Harris would have had the surgery in any event (but not the second osteotomy) it was submitted on behalf of Dr Bellemore that Mr Harris has not suffered any recoverable economic loss relating to that period, because he would have taken extended leave in any event, regardless of Dr Bellemore’s negligence. I do not think that is entirely correct.

Dr Bellemore had originally estimated that the bilateral lengthening would require Mr Harris to be off work for a period of about 20 months. On that basis, but for the complications of the second osteotomy, the treatment would probably have been completed so as to enable Mr Harris to return to work by about mid 1998. However, Mr Harris gave evidence, and it was not disputed, that after the second osteotomy he lost confidence in Dr Bellemore. In the circumstances in which he found himself, I am satisfied that it was reasonable for Mr Harris to decide not to proceed to have the left leg lengthened by Dr Bellemore. However, his right leg was then longer than the left by about five centimetres. I am satisfied that it was reasonable in those circumstances for Mr Harris to travel to the specialised centre in Western Siberia in order to have the bilateral leg lengthening completed.

Mr Harris returned from Europe in November 1998. On that basis, I am satisfied that the period of his absence from work attributable to the treatment was prolonged by about 6 months due to Dr Bellemore’s negligence. Mr Harris is entitled to his lost earnings based on his actual salary as at 4 November 1996 for that period. Mr Kelly’s submissions assumed that any past economic loss should be calculated at the rate of wages earned by employees said to be comparable to Mr Harris. For the period before Mr Harris returned to work in December 1999, I do not think that is a fair assessment of the loss.

Mr Harris did not in fact return to work when he returned from Russia but, for the reasons stated above, I am not satisfied that his failure to do so is due to any negligence on the part of Dr Bellemore. Question 22: “Was the plaintiff’s dismissal from BHP in April 2002 caused by any breach of duty by the defendant?” Question 23: “Did the plaintiff have the capacity to re-enter the workforce at any time between April 2002 and the present?”

I have considered the issue of Mr Harris’ dismissal from BHP in the context of my consideration of the psychiatric issues above. For the reasons there stated, I am not satisfied that Mr Harris’ dismissal from BHP was due to any breach of duty by Dr Bellemore. Further, I am satisfied that Mr Harris had the capacity to re-enter the workforce after that time, but for his dysfunctional personality traits (obsessiveness and avoidant behaviour) which drove him to become fixated on the litigation to the exclusion of other pursuits. His depression, which was then of milder severity, should not have precluded him from obtaining employment. On that issue, I accept the evidence of Dr Brown that people suffering from mild to moderate depression “can, and do, work” (T1126.11).

The proceedings were initially listed for hearing in the District Court on 16 July 2001 (when Mr Harris was still employed). Their tortured path after that date is recorded in my earlier judgment given on 9 December 2008 refusing to vacate the hearing date. I am satisfied that, in the intervening time, it was due to his being obsessively absorbed with the litigation, and not due to any other disability, that Mr Harris was not seeking work. That in turn has probably contributed to the worsening of his symptoms. For reasons that are not entirely clear, Mr Harris was unwilling or unable to move the proceedings forward for many years. In any event, I am satisfied that his failure to seek work during that period was a choice. I am not satisfied that there was any incapacity to re-enter the workforce during that period due to Dr Bellemore’s negligence. FUTURE ECONOMIC LOSS Question 24: “Is the plaintiff permanently unemployable or does he have a residual earning capacity?” Question 25: “If the plaintiff will be able to return to work in the future, when and in what capacity?” Question 26: “What would the plaintiff’s career progress have been if: (a) he had not had the leg lengthening procedure?; or (b) he had the leg lengthening procedure but not suffered the vascular injury [or the posterior displacement]?”

The evidence of Mr Harris’ psychiatric witnesses was that the prospects of his ever obtaining employment in the future are negligible, due to his psychiatric condition. Since I am not satisfied that Dr Bellemore’s negligence is a cause of that condition, it is neither necessary nor constructive for me to address that contention. In the context of the findings I have made, the only question to be determined is the impact of the results of Dr Bellemore’s negligence on Mr Harris’ capacity to earn an income in the future.

I have already referred to the evidence of the orthopaedic and vascular experts to the effect that Mr Harris’ physical disabilities are not such as to preclude him from undertaking a sedentary occupation of the kind to which he returned at BHP after the Ilizarov treatment. It does not follow, however, that there has been no loss of earning capacity. The task is to estimate as best as possible the future effect of the injuries from which Mr Harris suffers as a result of Dr Bellemore’s negligence: State of NSW v Moss [2002] NSWCA 133; 54 NSWLR 536 at [71].

The injuries established on the evidence are scarring, pain, some loss of range of motion in the knee, very slight exacerbation of progressive degenerative change in the knee, some exacerbation of tightness of the soft tissues in the knee and the claudication symptoms. In my view, although employment of a sedentary nature is available to engineers, it is likely that the combination of those physical injuries has impaired Mr Harris’ earning capacity, albeit to a limited extent.

The fact that it is difficult to assess the impairment does not mean that Mr Harris is entitled only to a nominal sum: Moss at [72]. The Court is obliged to do the best it can to estimate the extent of the impairment. It is impossible to know precisely what impact Mr Harris’ physical condition would have on his earning capacity in the future. However, it seems to me that it is likely to impair his capacity to operate at such a degree of efficiency and enthusiasm as to mark himself out for pay increases at the higher end of the range and for promotion to leadership or management positions. These were prospects that appeared open to him before he stopped working to have the Ilizarov treatment.

A substantial amount of hearing time was devoted to analysing the extent to which it was appropriate to consider the wages of four other BHP employees as being comparable to Mr Harris’ capacity to earn, but for his disabilities. In my view, however, it is not possible to make an arithmetic calculation by reference to that evidence of the impairment of earning capacity due to Dr Bellemore’s negligence alone. It must be borne in mind that some of the physical disabilities, including some of the pain and sone of the loss of flexion in the knee, are not due to Dr Bellemore’s negligence. Estimating the future loss is accordingly an inexact process.

For that reason, I do not think it is necessary to answer question 27 (whether the “comparable” wages are truly comparable). In the circumstances, the appropriate course is to award a lump sum to reflect an overall diminution in Mr Harris’ capacity to advance and prosper as a senior engineer due to the daily impairment, in particular, of poor flexion in the knee and pain upon exertion. In my view, an appropriate sum to compensate Mr Harris for that lost capacity is $150,000. I do not think it is appropriate to discount that sum to reflect the vicissitudes of life. PAST AND FUTURE DOMESTIC ASSISTANCE (Questions 28 to 31)

It remains to consider Mr Harris’ need for domestic assistance. The evidence of both Mr Harris and his mother, Mrs Doreen Harris, as to that issue was to the effect that Mrs Harris effectively does everything for him. She described herself as “like the little donkey” (T279.5).

It was submitted on behalf of Dr Bellemore that the Court would be slow to accept the evidence of Mrs Harris where that evidence is not corroborated by independent evidence or consistent with what might be regarded as the probabilities objectively ascertained.

As already noted, the expert evidence in the proceedings was to the effect that Mr Harris is not as disabled as his mother has apparently come to believe. She appears to have convinced herself that, as a result of the surgery, her son is almost totally incapacitated. I do not think her evidence on that issue was dishonest in any respect. In my view, however, her perception as to her son’s needs is plainly skewed by her instinct as a mother to nurture and protect. I also think the extent of assistance she provides is affected by the fact that she is possesive of her own domestic space (see T279.46-T280.25). Accordingly, I do not think Mrs Harris’ evidence provides a reliable indication of the level of care required by her son.

As to past attendant care, it was submitted on behalf of Dr Bellemore that no allowance should be made for the period 13 May 1997 to 6 December 1999, since care during that period would have been required in any event. In my view, however, the need for care was plainly increased by the complications that occurred during the second osteotomy, albeit for a limited period. Based on the analysis of Mr Harris’ needs carried out by Ms Heather Tchan (the occupational therapist retained on behalf of Mr Harris), I am satisfied that Mr Harris required additional care at the maximum level (51 hours per week) for 2 weeks after the second osteotomy and at a high level (33 hours per week) for an additional 3 weeks after that: see report dated 29 January 2009 at pages 11 to 14 (Exhibit AB, pages 35 to 38).

It was Ms Tchan’s assessment that, apart from that period of 5 weeks, Mr Harris required 20 hours assistance per week for a considerable period. However, there is confusion in her report as to the dates during which that care was required, as she appears to have assumed that Mr Harris travelled to Russia between August 1997 and March 1998, whereas the evidence in the proceedings was that he did not leave Australia until April 1998. Ms Tchan assessed him as needing about 12 hours assistance per week from May 1998 until about June 2004. She assesses that he has required 8 hours assistance per week since that time.

The critical task, however, is to identify what assistance Mr Harris reasonably requires on the basis of the physical injuries that are due to Dr Bellemore’s negligence. That issue was addressed in concurrent evidence given by Ms Tchan and two other experts, Dr Barold (an occupational medicine specialist retained on behalf of Mr Harris) and Dr Bowers (a rehabilitation physician retained on behalf of Dr Bellemore). Dr Bowers adhered to the view expressed in his written report that the surgery of May 1997 has led to the requirement for 3 hours per week domestic assistance (T684.40). Dr Barold assessed the need at 10 hours per week, but was including both physical and psychiatric disabilities as the premise of that assessment (T686.3). It is clear from Ms Tchan’s report at page 14 (Exhibit AB, page 38) that she also made allowance for the impact of depression on Mr Harris’ need for care.

Having regard to all of that evidence, and doing the best I can, I am satisfied that, in addition to the period of increased need for 5 weeks immediately following the second osteotomy (identified above), Mr Harris probably required 20 hours domestic assistance per week due to the second osteotomy for a further 5 weeks. That conclusion is based on the evidence of Ms Tchan as to a graduated recovery, making allowance for my findings as to the limited disabilities that are exclusively due to Dr Bellemore’s negligence. I am further satisfied that Mr Harris has required 3 hours domestic assistance per week due to the second osteotomy since that time and that he is likely to continue to require that level of assistance.

Further, having regard to my determination that Mr Harris is unlikely to be able to undergo further surgery in the future due to his vascular condition, I am satisfied that he is entitled to recover from Dr Bellemore the cost of assistance at a higher level, which he is likely to need in about 20 years time when he would otherwise probably have required a total knee replacement. The parties did not direct any submissions to that particular need and should be given an opportunity to do so. GENERAL DAMAGES

The physical injuries resulting from Dr Bellemore’s failure to use hinges on the Ilizarov frame are discussed in detail below. Mr Bozic submitted that, on the assumption (as I have found) that Dr Bellemore is liable only for the consequences of that conduct, Mr Harris is entitled to up to $100,000 for general damages. However, having regard to submissions made on behalf of Dr Bellemore as to Mr Harris’ physical injuries, that submission must be taken to assume that Mr Harris’ claudication symptoms are not disabling in any respect. The submission probably also ignores the prospect of Mr Harris’ having to endure being unable to have a total knee replacement (if he requires it) due to his vascular condition (since that prospect was denied by Dr Bellemore).

Mr Kelly submitted that, if the plaintiff’s case were accepted, the upper range of $150,000 identified by Mr Bozic on that premise was unrealistically light. However, I have not accepted the plaintiff’s case. In particular, I do not accept that Mr Harris’ physical injuries are as disabling as he contends and I do not attribute his psychiatric condition to Dr Bellemore’s negligence.

In my view, the appropriate award of general damages is $125,000. CONCLUSION AS TO DAMAGES

As to the plaintiff’s economic loss, the parties invited me to direct them to undertake the necessary calculations following publication of my findings. It will, however, be necessary to give further consideration to the question of superannuation. The parties addressed that issue on the assumption that economic loss may be calculated arithmetically by reference to comparable earnings. They should have an opportunity to address me further as to that issue in light of the different approach I have taken.

As to out of pocket expenses, the written submissions of the parties disclose that there is substantial agreement as to the amounts in question, subject only to knowing the findings of the Court. I will ask the parties to identify those amounts by reference to the findings in this judgment.

I will hear the parties as to costs.

I will also ask the parties to endeavour to reach agreement as to the final calculation of damages including the following components: (a) Past economic loss (to be calculated in accordance with paragraph 357 above); (b) Interest on past economic loss; (c) Future economic loss of $150,000 in accordance with paragraph 366 above; (d) Past out of pocket expenses; (e) Future out of pocket expenses; (f) Past attendant care calculated in accordance with paragraphs 370 and 373 above; (g) Future attendant care as referred to in paragraph 374 above; (h) General damages of $125,000; (i) Interest on general damages calculated in accordance with clause 13 of the defendant’s written submissions.

I direct the parties to bring in a calculation of damages in accordance with paragraph 381 of this judgment.

I order that there be a verdict and judgment for the plaintiff in an amount to be assessed in accordance with that direction.