Briggs v Hillier

Catchwords: NEGLIGENCE — Breach — Standard of care — Medical negligence — Whether spinal surgery ought to have been performed — Whether spinal surgery performed negligently
NEGLIGENCE — Causation — Medical negligence — Whether lower back pain caused by spinal surgery
LIMITATION OF ACTION — Claim in negligence — Where time expired — Whether extension of time should be granted — Where defendant suffered both actual and presumptive prejudice

Legislation Cited: Civil Liability Act 2002 (NSW), Pt 1A, Pt 2, ss 5B, 5C, 5D, 5E, 5I, 5O, 5P, 16
Evidence Act 1995 (NSW), ss 79, 140, Dictionary
Limitation Act 1969 (NSW) ss 18A, 50A, 52, 60G, 60I

Cases Cited: Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649
Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370
Brisbane South Regional Authority v Taylor (1996) CLR 541; [1996] HCA 25
Clifton & Ors v Lewis [2012] NSWCA 229
Coleman v Barrett [2004] NSWCA 27
Dean v Pope [2022] NSWCA 260
Dell v Dalton (1991) 23 NSWLR 528
Doughty v Hillier [2024] NSWSC 1220
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hall v State of New South Wales [2014] NSWCA 154
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
McLean v Sydney Water Corporation [2001] NSWCA 122
Moran v Nominal Defendant [2008] NSWSC 804
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
Polsen v Harrison (No. 8) [2023] NSWSC 764
Port Macquarie Hastings Council v Mooney [2014] NSWCA 156
Reece v Reece (1994) 19 MVR 103
South Western Sydney Area Health Services v Gabriel & Anor [2001] NSWCA 477
South Western Sydney Local Health District v Gould (2019) 97 NSWLR 513; [2018] NSWCA 69
Southgate v Waterford (1990) 21 NSWLR 427
Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Varga v Galea [2011] NSWCA 76

Texts Cited: Furzer Crestani Forensic Chartered Accountants, Assessment Handbook 2024

Category: Principal judgment

Parties: Erin Nicole Briggs (Plaintiff)
Terence Hillier (Defendant)

Representation: Counsel:
M Cranitch SC / J Hillier (Plaintiff)
J Downing SC / M Hamdan / D Wilcox (Defendant)
Solicitors:
Commins Hendriks (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2020/00356341

Publication restriction: Nil

TABLE OF CONTENTS

Introduction

The Pleadings

Background

The Lay Evidence

The plaintiff

Nathan John Briggs

Suzanne Beverley Leah

The defendant

The Expert Evidence

Plaintiff’s Experts

Defendant’s Experts

The Joint Conferences and Joint Expert Liability Reports

The plaintiff’s clinical course established by the lay and expert evidence

The parties’ submissions

Approach to factual witnesses

Factual findings contended for

Conclusions

Limitation

Liability

Statutory Framework

Sections 5I and 5O

Causation

Damages

Disposition

JUDGMENT

Introduction

1. This case is about the treatment of the plaintiff by the defendant, an orthopaedic surgeon, in 1999. The plaintiff was an adept, aspiring young sportswoman who, in the years leading up to her surgery, experienced symptoms in her lower back. She attended upon the defendant following a course of conservative treatment to her lower back which commenced in 1995. The defendant performed surgery on the plaintiff on 11 March 1999, and attended upon her thereafter on several occasions again in 1999. She returned to see the defendant in 2019 – twenty years later – and she now brings a claim against him in negligence.

2. The matter is to be determined pursuant to the Civil Liability Act 2002 (NSW) (“the Act”). In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities: s 140 of the Evidence Act 1995 (NSW). The Dictionary of the Evidence Act defines the “case of a party” as the facts in issue in respect of which the party bears the legal onus of proof.

3. There is significant dispute between the parties in relation to the factual matrix underlying this case. The evidence was heard over some 20 days and counsel made oral submissions for parts of 4 days thereafter. The plaintiff’s claim essentially turns on the conversations she and her parents allegedly had with the defendant in 1999 and her lower back symptoms in the years after the surgery performed by the defendant. The defendant forcefully resisted the plaintiff’s claim and almost all matters are in issue including the historical factual matrix, limitation periods, breach of duty, causation and quantum of damages. Very little is agreed between the parties. As a result of the nature of the plaintiff’s claim as it evolved over the course of the trial, it is necessary to address the plaintiff’s lower back symptomatology over the course of the last 30 years in some detail, which I set out in my findings below.

4. In the event, I dismiss the plaintiff’s claim for the reasons that follow.

The Pleadings

5. The plaintiff alleges that the defendant negligently advised and managed the plaintiff over the period in which he treated her in 1999.

6. Referring to s 5D of the Act, the plaintiff pleads the scope of the duty of care alleged, at [6], [6A] and [7] of the Third Further Amended Statement of Claim (“3FASOC”) as follows:-

“6. At all material times the Defendant owed the Plaintiff a duty of care being the duty of care owed by a specialist orthopaedic surgeon to his patient.

6A The scope of the Defendant’s duty of care owed to the Plaintiff required the Defendant to provide advice and treatment to the Plaintiff to the standard of a reasonably competent medical practitioner practising as an orthopaedic surgeon to include taking steps (including precautions) that a reasonably competent medical practitioner practising as an orthopaedic surgeon would take to reduce the risk of foreseeable injury to the Plaintiff.

…

7. The scope of the Defendant’s duty of care to the Plaintiff, required the Defendant to:

a. provide advice and treatment to the Plaintiff to the standard of a reasonably competent medical practitioner and orthopaedic surgeon; and/or

b. take the steps that a reasonably competent medical practitioner and orthopaedic surgeon would take, to reduce the risk of foreseeable injury to the Plaintiff.”

7. The defendant admits these paragraphs.

8. Referring to s 5B of the Act, the plaintiff identifies the risk of harm at [46B] of the 3FASOC as comprising:-

“a. The defendant undertaking the surgery in circumstances where the plaintiff had and her parents had not been advised or properly advised of the risks of that surgery;

b. The defendant undertaking the surgery in circumstances where the plaintiff had no neurological deficit;

c. The defendant undertaking the surgery in the absence of sufficient pre-operative review, and conservative treatment including core strengthening exercises, inversion table, vertical traction, abdominal and back bracing exercises, regular still water swimming, and counselling the plaintiff to permanently cease playing hockey, competitive hockey, and/or vigorous sports;

cc. The defendant undertaking the surgery instead of treating the plaintiff conservatively including via core strengthening exercises, inversion table, vertical traction, abdominal and back bracing exercises, regular still water swimming, and counselling the plaintiff to permanently cease playing hockey, competitive hockey, and/or vigorous sports;

d. The plaintiff undergoing the surgery when it was unwarranted, there were contraindications and there was of no therapeutic benefit to the surgery;

e. The plaintiff was a child and had not yet stopped growing;

f. The specific risk arising from the defendant conducting the surgery in the circumstances where there had been no proper structured course of non-operative treatment;

g. The specific risk arising from the defendant conducting the surgery without first carrying investigations and/or diagnostic testing;

h. The specific risk arising from the defendant conducting the surgery without first referring the plaintiff for a second opinion;

i. Performance of the surgery as occurred;

j. Performance of the surgery in the absence of a spot lateral x-ray;

k. Continuing to perform the surgery following the removal of the loose laminae at L5;

l. The impossibility of achieving a successful uninstrumented onlay bone graft fusion in the facet joints in a child aged 14 years;

m. The failure of the bone graft to take and for fusion to be achieved following the surgery.

9. At [53] of the 3FASOC, the plaintiff alleges the following particulars of negligence:-

“a. failed to inform the plaintiff and her parents of the risks of the surgery;

b. failed to properly or adequately consider whether or not the plaintiff was a candidate for the surgery;

c. failed to properly or adequately consider the contraindicators for the surgery;

d. conducted the surgery when there were contraindicators;

e. failed to properly or adequately consider whether there were indicators upon which to undertake the surgery;

f. conducted the surgery on a child;

g. conducted the surgery;

h. performed unwarranted surgery in the form of the surgery;

i. failed to consider or properly consider referring the plaintiff for a second opinion;

j. failed to refer the plaintiff for a second opinion prior to the surgery;

k. failed to recommend conservative treatment;

l. failed to recommend conservative treatment or to conservatively treat the plaintiff instead of the surgery via core strengthening exercises, inversion table, vertical traction, abdominal and back bracing exercises, and/or regular still water swimming, and to counsel the plaintiff to permanently cease playing hockey, competitive hockey and/or vigorous sports;

m. failed to implement a proper structured course of non-surgical and/r conservative treatment;

n. failed to implement a thorough structured programme of physiotherapy, hydrotherapy, gym, and swimming supervised by a qualified and experienced physiotherapist;

o. failed to properly or adequately consider that at the time of the surgery the plaintiff’s spine had not matured and was undergoing change;

p. failed to consider or properly consider that fusion of the lumbosacral intervertebral disc segment was unlikely to have been achieved in a child aged 14 years;

q. failed to consider or properly consider the likely failure rate of the surgery in all of the circumstances;

r. failed to consider or properly consider the plaintiff’s type and degree of isthmic spondylolisthesis prior to the surgery;

s. failed to consider or properly consider that the plaintiff had no neurological deficit prior to the surgery;

t. failed to consider or properly consider that lumbosacral braces would be inadequate to supply the degree of immobilisation that onlay bone grafting may have achieved;

u. performed the onlay bone grafting procedure on the plaintiff;

v. failed to consider or properly consider that it would be impossible to achieve a successful uninstrumented onlay bone graft fusion in the facet joints in the plaintiff who was at that time a child aged 14 years;

w. failed to consider or properly consider that the surgery could cause damage to the left L4/5 facet;

x. performed the surgery that resulted in damage to the L4/5 facet;

y. damaged the L4/5 facet;

aa. failed to obtain a spot lateral x-ray prior to considering and/or recommending any surgery including the surgery;

bb. performed the surgery in the absence of a spot lateral x-ray;

cc. continued to perform the surgery upon removal of the loose laminae at L5;

dd. failed to recognise or properly recognise that there had been a failure of the bone graft to take and for fusion to be achieved following the surgery;

ee. failed to tell the plaintiff when he saw her in February 1999 and/or March 1999 that she should permanently cease playing hockey, competitive hockey and/or vigorous sports and instead performing the surgery;

ff. telling the plaintiff and/or her parents that she could return to hockey training, playing hockey and then competitive hockey on 12 May 1999, being 8 weeks after the surgery.”

10. In her Further Amended Statement of Particulars, the plaintiff alleges the following particulars of injury and disability:-

Particulars of Injuries Received

1. Injury to the back;
2. Spinal injury;
3. Anxiety;
4. Depression;
5. Pain;
6. Chronic pain;
7. Restricted movement;
8. Swelling left knee;
9. Urinary incontinence;
10. Injury to left leg;

Particulars of Continuing Disabilities

11. Ongoing pain in the lower back;

12. Ongoing pain in the lower limbs;

13. Reduced sitting tolerance;

14. Exacerbation of pain;

15. Difficulty sleeping;

16. Cramping and pain to legs;

17. Difficulties/limitations in completing employment;

18. Difficulty, restriction and increased pain to bending, stooping, lifting twisting and sudden movement;

19. Increased pain in cold weather;

20. Altered gait;

21. Inability to participate in pre-injury recreational activities;

22. Difficulty in performing household and domestic activities;

23. Requirement to take pain medication;

24. Requirement for further surgery;

25. Psychological symptomology;

26. Feelings of sadness;

27. Incontinence, urinary incontinence;

28. Loss of confidence;

29. Sense of guilt;

30. Increased pain during pregnancies;

31. Difficulties in winter months;

32. Feelings of depression;

33. Anxious feelings;

34. Feelings of exhaustion;

35. Requirement to do stretches and use heat packs;

36. Reduced intimacy with husband;

37. Avoiding activities;

38. Left leg numbness;

39. Constant lower back pain which worsens with activity radiating to both buttocks and the left leg, worse on left side;

40. Difficulty with static poses;

41. Pain aggravated by bending, stooping or lifting;

42. Inability to run;

43. Difficulty to squat;

44. Pelvis weakness;

45. Scarring;

46. Decreased sensation in left thigh; and

47. Chronic pain.

48. The defendant denies that he was negligent. In particular:-

49. He says that he was not negligent, as the provisions of s 5B(1) are not satisfied, taking into account the factors and principles in ss 5B(2) and 5C of the Act;

50. He denies that either factual causation or scope of liability are made out pursuant to s 5D of the Act; and

51. He relies upon the provisions of Pt 2 of the Act in relation to the plaintiff’s claim for damages and interest.

52. As to the whole of the claim, the defendant relies on s 5I of the Act and says that he is not liable to the plaintiff because the harm she suffered was, either in whole or in part, the result of the materialisation of an inherent risk.

53. Further, the defendant relies on s 5O of the Act and says that he acted in a manner that, at the time he provided professional services to the plaintiff, was widely accepted in Australia by peer professional opinion as competent professional practice.

Background

14. The plaintiff and the defendant prepared and tendered a chronology in accordance with the Practice Note which became part of the Joint Court Book. I have set out relevant parts of the chronology of the matter below, noting where there was a dispute between the parties. It is necessary to set out the chronology in some detail, as essentially all salient issues, apart from the existence and scope of the defendant’s duty of care to the plaintiff are in dispute. Further facts are dealt with in the plaintiff’s evidence, to which see below.

15. On 6 March 1998, the plaintiff complained of lower back pain and discomfort to her general practitioner, Dr Andrew Milliken. Dr Milliken diagnosed her with a urinary tract infection.

16. In January 1999, the defendant commenced public and private practice in Albury, NSW, and obtained admitting rights to Albury Base Hospital, Wodonga District Hospital and Albury Wodonga Private Hospital.

17. On 4 February 1999, the plaintiff underwent an x-ray of her spine.

18. On 8 February 1999, the plaintiff attended an appointment with Mr Shane Robertson at Healthfocus Physiotherapy.

19. On 12 February 1999, the plaintiff attended a consultation with the defendant for the first time with her mother and father at the defendant’s rooms in Albury. The defendant recorded the following in his notes:-

“2-3 years ago developed some

thoracic + shoulder pain. Settled

well.

Physio tried needling – helped

considerably.

O/E [on examination] Healthy young woman. Plays high

level sport.

Forward flexes freely + recovers well.

Uncomfortable in extension.

Prone springing � [gives] significant lumbar

pain

SLR [straight leg raising] R [right] = L [left] = 70**°** [degrees] � [gives] back pain

Hamstrings tight

Neurologically fully intact - MP [muscle power]

- R-B [reflexes brisk]

- Sensation

XRays: Grade 1 spondylolytic

spondylolisthesis

Options discussed

For trial of pars infiltration via

L5-S1 facet joints. See SOS”

20. On that day, the defendant wrote to the plaintiff’s general practitioner, Dr Carmel Ling. Relevantly, the letter states:-

“Thank you for asking me to see this 14 year old student who has the known grade 1 spondylolytic spondylolisthesis of L5 and S1.

She is in physical excellent shape given her quite heavy sporting commitment and the physio programme has been working well with her.

I find that she is still quite painful when stressed across the L5 pars defects and I feel this is explaining the associated erector spinae muscle spasm which is producing some discomfort in the upper part of her thorax and neck and shoulder area.

I have arranged for her to have the L5 pars defects infiltrated with local anaesthetic and steroid via the L5-S1 facet joints at BMI.

If that settles her down effectively, I would be happy for her to resume her sport but have asked them to come back if she still is troubled.

Beyond that, I have suggested I review her with a spot lateral x-ray in 6 months time to ensure that the spondylolisthesis is not increasing.”

21. On 18 February 1999, the plaintiff underwent a fluoroscopic guided lumbosacral spine facet injection.

22. On 23 February 1999, the plaintiff attended a consultation with the defendant accompanied by her mother and father at the defendant’s rooms in Albury. The defendant referred the plaintiff to Mr Robertson at Healthfocus Physiotherapy. The defendant recorded the following in his notes:-

“Injections done 4 days ago

Have not been helpful.

To see Shane Robertson [physiotherapist] for I/F [interferential therapy]

Reassess then”

23. On 3 March 1999, the plaintiff attended a consultation with the defendant where he recorded the following notes:-

“Not settling. Injections only briefly

helped. Discussed with Erin + both

parents what would be involved

in LS [lumbosacral] P/L [posterolateral] fusion. Booklet given.

To consider.”

24. On or around 11 March 1999, the plaintiff was admitted to Albury Wodonga Private Hospital as a private patient under the care of the defendant for an uninstrumented posterolateral fusion which he performed performed that day. After the surgery, on a date not agreed upon by the parties for the purpose of the chronology, the plaintiff was discharged from Albury Wodonga Private Hospital wearing a ladder back brace. No operation notes are available.

25. On 14 April 1999, the plaintiff attended the defendant for a 5-week post-operative consultation accompanied by her mother and father at the defendant’s rooms in Albury. The defendant recorded the following in his notes:-

“5/52 since operation.

Coping very well.

Does not need

brace

See 4/52 XOA [Xray on arrival]”

26. On 12 May 1999, the plaintiff underwent an x-ray of her lumbosacral spine and attended a consultation with the defendant accompanied by her mother and father at the defendant’s rooms in Albury. He recorded the following in his notes:-

“Coping well.

Xrays show P/L [posterolateral] mass filling in.

Still not fully sound on L [left]

side but she is fully active +

wishes to recommence sport now.

Plan clinical check in 8/52

(Rev) = NC)”

27. That day, the defendant wrote to the plaintiff’s general practitioner and said, relevantly:-

“Following my earlier assessment of Erin and my comments to you, she had the pars defect injections but they were not helpful and I referred her onto Healthfocus for some interferential but that also didn’t help her so Erin discussed with me what would be involved in stabilising the lumbosacral spondylolisthesis.

She was very positive about going ahead with that surgery, which was done some 8 weeks ago. Updated x-rays today show that her posterolateral fusion is filling in well and Erin has been very comfortable and quite active since an early stage in her postoperative recovery. She wishes to resume her competitive hockey and with the bone graft looking quite mature I have allowed her to do that given that I am satisfied she has regained such a lot of flexibility so early.

She has been a very committed and motivated girl and has certainly done well at this stage after that surgery. At the time of operation I did also take away the loose L5 laminae to stop the ongoing pars irritation.”

28. On 7 July 1999, the plaintiff attended a consultation with the defendant accompanied by her mother and father at the defendant’s rooms in Albury. He recorded the following in his notes:-

“Coping well

Moving very freely. Fully back

at hockey.

Some muscle tenderness at PSIS [posterior superior iliac spine]

in paraspinal muscle attachment.

To apply Voltaren.

See 2/12 XOA (105=51)”

29. On 9 September 1999, the plaintiff attended a consultation with her general practitioner, Dr Andrew Milliken, who referred her to Healthfocus Physiotherapy.

30. On 20 September 1999, the plaintiff underwent a lumbosacral spinal x-ray. The plaintiff also attended a consultation with the defendant on this date, accompanied by her mother and father at the defendant’s rooms in Albury. The defendant recorded the following in his notes:-

“Hibbs view suggest P/L [posterolateral] bridge

has developed.

She is very comfortable + untroubled

with hockey etc.

See SOS.

(105=51)”

31. This was the plaintiff’s last consultation with the defendant until 20 February 2019, almost 20 years later.

32. From February 1999 onward, the plaintiff attended at least 50 sessions of physiotherapy. The reasons for and the number of the plaintiff’s attendances were the subject of some dispute between the parties, which is discussed below.

33. In 2002, the plaintiff graduated from year 12 at high school.

34. By 2007, the plaintiff was employed as a fulltime employment-based support worker for Yes Youth and Family Services (“YES”). In that year, she was promoted to a fulltime team leader role. I observe that in cross-examination at T695, the plaintiff agreed that she commenced employment at YES in 2006 (based on YES records).

35. On 7 May 2009, the plaintiff attended her first obstetric appointment with Dr Peter Mourik, when she was 20 weeks pregnant.

36. In September 2009, the plaintiff commenced maternity leave from her position at YES.

37. On 27 September 2009, the plaintiff gave birth to her first child.

38. In approximately September 2010, the plaintiff returned from maternity leave at YES working on a part-time basis in a team leader role.

39. On 18 April 2013, the plaintiff gave birth to her second child.

40. In 2014, the plaintiff accepted a redundancy package from YES.

41. In 2015, the defendant moved into semi-retirement and ceased operating as a principal surgeon. From 2015 to early 2021, the defendant operated as an assistant to Dr Anil Nair in Sydney and Dr John Choi in Melbourne.

42. On 7 March 2017, the plaintiff gave birth to her third child.

43. On 11 January 2019, the plaintiff underwent an x-ray of her lumbar spine.

44. On 29 January 2019, the plaintiff underwent an MRI scan on her lumbar spine.

45. On 6 February 2019, the plaintiff was referred by her general practitioner, Dr Gaini Allen, to the defendant.

46. On 20 February 2019, the plaintiff attended a consultation with the defendant who referred her for a bone scan. He recorded the following in his notes:-

“34

Has had 3 children.

Has had a number of treatments with

Shane Robertson.

Present Time:

Mainly lumbar ache

Some ache into both hamstrings.

Has a L [left] knee Bakers cyst.

Had P/L [posterolateral] fusion for Grade 1

spondylotic spondylolithesis.

Done without implants.

MRI L5-S1 disc alignment 45**°** [degrees].

Early L5 Modic EPR [end plate reaction]

? loading L4L5 facet reaction.

? discogenic.

O/E [on examination] FF [forward flexes] to upper shin.

Recovers well

Limited extension but no pain.

Plan: She will chase up plain Xrays.

Bone scan LS [lumbosacral] spine

Letter to GP then.”

47. On 6 March 2019, the plaintiff underwent a bone scan.

48. On 13 March 2019, the plaintiff attended a consultation with the defendant. He recorded the following in his notes:-

“Plain film [Xrays] show L5-S1 P/L [posterolateral]

Fusion is stable - 45**°** [degree] S1 disc

inclination

Bone scan shows L4-L5 tilt to R [right]

+ L [left] L4-L5 facet reaction.

Plan: B/L [bilateral] L4-L5 facet injections.

1/52 � [refer to] Mandy [Mandy Hobbs – senior spinal physiotherapist]

49. On 20 March 2019, the plaintiff received facet joint injections.

50. On 11 April 2019, the plaintiff attended a consultation with the defendant at his rooms in Albury. He referred the plaintiff to Ms Mandy Hobbs at Healthfocus Physiotherapy for physiotherapy treatment. He recorded the following in his notes:-

“Injections completed.

Has not yet commenced with

Mandy – organised.

Orudis/Nexium

FSE [flexion stretching exercises]

4/52 prn

(105)”

51. On 16 May 2019, the plaintiff attended a consultation with the defendant who referred her to Dr Nair and Dr Kirwan, orthopaedic surgeon, in relation to her left knee. On that date, the plaintiff underwent an x-ray on her lumbar spine. This was the last time the plaintiff consulted the defendant. He recorded the following in his notes:-

“Remains troubled.

For Flex/Ext [Flexion/Extension] Xrays today

Also L [left] knee popliteal cyst is

becoming more of a nuisance.

For MRI L [left] knee.

Xray today (F/E) [Flexion/Extension] show some

L5 movement.

To consider ALIF [anterior lumbar interbody fusion]

� [referred to] Anil [Dr Anil Nair – spinal surgeon]

Also L [left] knee popliteal cyst issue

� [referred to] DK [David Kirwan]

(105)”

52. The plaintiff thereafter attended two consultations with Dr Nair, who wrote to the defendant on 25 June and 5 September 2019, saying, relevantly:-

“25th June 2019…

Many thanks for referring this 35 year old mother of three with a noticeable popiteal (sic) cyst on the left side. She does not have any relevant knee symptoms. I note you are contemplating an anterior reinforcement for her lumbosacral fusion. Erin has pain in the left leg that radiates from her buttock, which is obviously not related to the cyst.

Examination revealed a very normal knee apart from one or two degrees loss of flexion and the moderately tense popliteal cyst.

As Erin is not particularly vain about the lump, she has had no cuffed symptoms to suggest a recurrent fluid leak, I would leave the cyst be. If things change and we are contemplating removing the cyst then an MRI scan of the knee would be done around that time to exclude an intra articular cause. As she will likely get relief of her leg pain from the forthcoming spine surgery, I have recommended that she await that expected benefit before we do anything about the knee, if at all.

Erin is comfortable with the above decision. She knows that the cyst does not represent a sinister disease. I have left follow up arrangements with her.”

“05/09/2019…

I reviewed Erin. She remains troubled by lower back and lower extremity radicular symptoms. She presented for discussion specifically about logistics of surgery. I have advised her that I continue to favour an anterior lumbar interbody fusion. Unfortunately, she did not bring her imaging. I need to review that prior to deciding which levels would be incorporated and whether or not there will be any posterior reconstruction required. …”

53. On 16 December 2020, the plaintiff commenced these proceedings against the defendant.

54. On 8 March 2021, the plaintiff gave birth to her fourth child.

The Lay Evidence

The plaintiff

55. The plaintiff relied upon and adopted three Evidentiary Statements dated 21 February, 20 March and 4 June 2024, and an affidavit affirmed on 23 May 2024 (which dealt with limitation matters) was read in the proceedings. She was cross-examined at great length by Mr Downing SC, who appeared on behalf of the defendant with Ms Hamdan and Mr Wilcox.

56. The plaintiff gave evidence that she started playing competitive hockey in 1994 when she was 10 years old. From 1995 to 2001, she played in various local and representative teams and competitions, and she would sometimes play in teams above her age group or in the open women’s team when she was a teenager. She qualified for the Victorian representative team in 1997 and was made captain of that team in 1998.

57. The plaintiff said that at school in 1995, a chair was pulled out from underneath her and she fell on the floor on her tailbone (“the School Incident”). She experienced some pain and took at least a weekend off playing tennis before returning. In her statement, she said that the pain had resolved prior to the commencement of the hockey season in May 1995 and that she did not take time away from hockey as a result of that injury. However, in cross-examination at T87 she said that she was in “quite a lot of pain” from 1995 to 1999. Later, at T135, she said that her best recollection was that the pain reduced but did not wholly resolve.

58. In cross-examination, the plaintiff stated that she had regular physiotherapy and did stretching exercises commencing about the time of the School Incident. In 1998, the plaintiff regularly attended upon Mr Shane Robertson, physiotherapist at Healthfocus, during the hockey season. At T156, she said that her low back pain did not resolve and gradually worsened to 1999 despite her regular physiotherapy and stretching.

59. On 8 February 1999, the plaintiff presented to Mr Robertson with lower back pain. She stated that Mr Robertson said words to the effect that “something is not right with your back pain, I think we should get an x-ray just to see and make sure we rule out any other problems”. This was the same back pain that she had had since the School Incident.

60. On 9 February 1999, the plaintiff presented to her general practitioner, Dr Carmel Ling, and indicated that she had been experiencing lower back pain for “a while”. The plaintiff said that Dr Ling said words to the effect that “on examination it appears to be muscular and you have no tenderness over the area but I will refer you to Dr Hillier”.

61. On 12 February 1999, the plaintiff was reviewed by the defendant in his rooms in Albury with her parents. She alleged that the defendant said words to the effect that “from the injury at school you have a fracture in your vertebrae and it is pressing on your spinal cord and causing the pain”. In cross-examination at T160, the plaintiff said that this was based on her recollection of events. At T162, she agreed that she never had cause to think about the detail of that consultation until late 2019. At T165-166, the plaintiff said that she never made any written note with respect to what occurred when she saw the defendant and that she had not had any discussions with her mother about the various attendances with the defendant.

62. After the 12 February 1999 consultation, the defendant referred the plaintiff for spinal cortisone injections. In cross-examination at T166, the following exchange occurred:-

“Q. Do I take it that you don’t recall now Dr Hillier saying anything then about treatment options other than simply undergoing injections to your back?

A. I don’t recall any other treatment options being made, being made aware of.

Q. Do you say you have an actual recollection that nothing else was discussed or you’re simply saying you don’t remember?

A. There, there was no other treatment options discussed.

Q. At that first consultation.

A. Yep.”

63. After a short adjournment, Mr Downing took the plaintiff to her 4 June 2024 statement. In that statement, she said that the defendant did not describe the surgery as a form of fusion and that the defendant never discussed a lumbar brace. The relevant parts of the exchange at T169-171 are as follows:-

“Q. What you said, and I’m paraphrasing but please read paragraph 21 to yourself, is that you do agree that Dr Hillier described surgery on that occasion, but you say that all he said was if the injections don’t work you will need surgery, without going on and saying anything about a fusion?

…

Q. Sure. What you were trying to communicate in that paragraph was that you had read paragraph 51 of Dr Hillier’s statement. Do you agree with that so far?

A. Yes.

Q. In response to it you agree that on that first occasion, 12 February 1999, he did talk about surgery?

A. Yes.

Q. But you say it was in the context of him not mentioning a fusion and simply saying, “If the injections don’t work, you will need surgery”?

A. Yes.

Q. When you gave evidence a moment ago and I asked you about 12 February 1999, you told me that you had an actual recollection that there was no mention of surgery on that first occasion. Do you remember that just some minutes ago?

A. Yes.

Q. In your second further evidentiary statement you say something different. That is, “Having now seen what Dr Hillier says I do recall him mentioning surgery but only in this limited way”.

A. Yes.

Q. Which version is correct?

A. Yes, the latter version that you – that, “If the injections don’t work you’ll need surgery”.

Q. So you do now remember him mentioning surgery?

A. Yes. I got confused with the dates of at which appointment.

Q. Do you agree that it was only after reading what Dr Hillier said that you were triggered to have a recollection of any discussion about surgery?

A. Right now?

Q. No. When you prepared your first statement you set out your account of what occurred to your recollection on 12 February 1999.

A. Yes.

…

Q. In that, which was your account before seeing anything Dr Hillier had said, you didn’t describe any discussion about possible surgery.

A. No, I didn’t in that. I, I have not.

Q. I thought your recollection in your evidence earlier today was that the only discussion in terms of any form of treatment was the injections to your back at that first—

A. Yeah.

Q. –consultation.

A. No. That’s not correct.

Q. Tell me what is correct, then.

A. That he gave us the two options and it was to have the spinal injections and, if they didn’t work, then surgery.

…

Q. Do you say you knew that at the time you came to prepare your first statement?

A. Yes.

Q. Why did you not include that?

A. I’m not sure why I didn’t.”

64. Following that exchange, Mr Downing asked the plaintiff about the discussion of “fusion” surgery at the 12 February 1999 consultation (at T171-172):-

“Q. Is it also possible that he said something about not just surgery but fusion surgery if you didn’t get much relief from the injections?

A. Yes.

Q. Is it possible he might have mentioned that?

A. Yes.

Q. Do you believe it’s possible he might have said something then about whether you might get some benefit out of using a lumbar brace?

A. No.

Q. You’re confident there was no discussion about that?

A. Confident.”

65. In the plaintiff’s statement of 4 June 2024, she said that she never wore a lumbar brace pre-operatively. The following exchange took place in cross-examination at T137:-

“Q. Go to the next page, please: 757. You’ll see that this relates to a 9 May 97 attendance at the Lavington clinic, but also it seems that there is a fee there for a back brace?

A. Yes.

Q. Pausing there. The back brace would suggest, would you agree, that you were there for a problem with your back?

A. Yes.

Q. Do you recall – and this is May 1997 – getting a back brace because of issues you were having with your back?

A. Yes, I do recall getting a back brace.

Q. Did you wear it?

A. Yes.

Q. When did you wear it? Was it all the time, or for particular activities?

A. It wasn’t, it wasn’t all the time. When I wasn’t playing sport. It would be more of a therapeutic thing between sporting, to sleep in when I was at home. Those kinds of things.”

66. Later in cross-examination at T229, the plaintiff said that she believed that when she said in her 4 June 2024 statement that she had not worn a lumbar brace prior to the surgery, that was written “in relation to [her] dealings with Dr Hillier”.

67. The defendant referred the plaintiff for further physiotherapy after a consultation on 23 February 1999.

68. On 3 March 1999, the plaintiff said that she returned to the defendant for a further consultation with her parents. She alleged that he said words to the effect that:

“You will need surgery to fix your back. You are my youngest patient. It is a cutting edge procedure. It’s the best option for you. I will use part of your pelvis to fuse your spine which is a good thing because you are young and will not have to have any foreign parts in your body. … I understand that you wish to keep playing hockey, I have operated on quite well-known sports stars.”

69. The plaintiff stated that the defendant:-

70. did not explain any risks of the surgery to her;

71. did not discuss with her that there might be a chance that the part of her pelvis he was using in the surgery would not fuse to her spine; and

72. made no mention before the surgery of “failed back surgery”.

73. With respect to the surgery and consultations leading up to it, the following exchange occurred in cross-examination at T352-353:-

Q. I'm sorry. It's clumsy wording. But would you agree that that was the most important factor for you at that point, was controlling your lower back pain to the point where you could continue on with hockey?

A. No, I'd say the most important thing was the back pain.

Q. But the back pain obviously was at that point debilitating for you? It was really affecting you, wasn’t it?

A. Yes.

Q. You obviously wanted that to stop?

A. Yes.

Q. You had at that point a real fear, didn’t you, about what would happen in future if the back pain stayed as it was or even got worse?

A. Yes.

Q. And at the front of your mind was what that might mean for hockey?

A. I can't recall if it was hockey that was on my mind then. It was more the pain, I believe.

…

Q. Your evidence about the leadup to going to see Dr Hillier is that the back pain was significant?

A. Yes.

Q. It was debilitating?

A. Yes.

Q. And there was a relationship between it and the hockey?

A. Yes.

Q. I take it you had a real worry about whether you could continue on with hockey?

A. I don't know that at that point, I wasn’t thinking about that. I was thinking about the back pain.

Q. Hockey was a huge part of your life?

A. Yes.

Q. Did it not occur to you that if the pain stayed as it was or even got worse that could mean hockey would be a really difficult thing for you to continue with?

A. Yes.

Q. It might become impossible for you?

A. I don't know if I had those thoughts then.

Q. But that was very much what you did not want to happen, was it? That is you did not want to end up in a position where you couldn’t play hockey?

A. I don't know what I would've thought at that time.

Q. You can't recall at all?

A. Not - I, I don't think I was thinking about whether or not I was continuing on playing hockey on - specifically for my back pain, so--

Q. So you say you gave no thought at all to what the back pain might mean in future if it continued or got worse?

A. I don't think at 14 I was really considering things like that. I was - in the moment it was around my back pain.

71. Mr Downing then took the plaintiff to her 21 February 2024 statement at [52] where she said:-

“At this time I lived and breathed hockey and thought that the surgery would resolve the problem I had with my back and I could continue to play including the option of professionally.”

72. The plaintiff then conceded in cross-examination that hockey was in fact part of her thought process behind seeking treatment from the defendant (at T354).

73. In her 21 February 2024 statement, the plaintiff said that following surgery on 18 March 1999, the defendant told her and her parents that the operation was a success. She said that she was discharged from hospital in a wheelchair and back brace on or about 20 March 1999. In her 4 June 2024 statement, she said that the correct date of surgery was 11 March 1999. In cross-examination at T183-184 and after being referred to documentary evidence, the plaintiff agreed that the surgery in fact took place on 11 March 1999 and that she was discharged on 18 March 1999.

74. During the plaintiff’s cross-examination at T241-246, the plaintiff said that in addition to formal physiotherapy consultations throughout her period of recovery from the surgery from 13 March 1999 to 13 May 1999, she completed a rehabilitation programme whereby she would attend at her physiotherapist’s rooms weekly to perform exercises using the equipment there.

75. On 14 April 1999, the plaintiff said that she attended a 5-week post-operative consultation with the defendant with her parents. She stated that the defendant remained positive about the outcome of the surgery. In cross-examination at T229, she said that she had recovered very well from the surgery and that there had been a very significant reduction in lower back pain. She agreed that Dr Hillier told her that she could take the lumbar brace off at that consultation, and she said that “not long afterwards” she had ceased wearing the brace (at T231). She said that her back continued to feel good and in fact improved from the date of that appointment in April onwards (at T232).

76. On 12 May 1999, the plaintiff said that she attended a further consultation with the defendant. She alleges that she asked the defendant whether she could return to playing hockey at that time, to which he responded with words to the effect that “the fusion is looking good so you can go back to playing hockey”. The plaintiff said in cross-examination (at T234-235) that by the time of this consultation, she was feeling “very good” in her lower back and that she said words to the effect that she was “doing well or coping well”.

77. The plaintiff said that she returned to hockey in May 1999. In cross-examination (at T236), she accepted that there might have been “perhaps a little more” than a month of training before she returned to matches. The plaintiff also said that she returned to hockey in a graduated way according to how she felt.

78. The plaintiff said that she presented to the defendant on 7 July 1999 with back pain, and he told her that she could use Voltaren cream. At T249, the plaintiff said that this was based upon her independent recollection.

79. In cross-examination at T240, the plaintiff agreed that after the surgery, when she had a particular problem with her lower back, she would attend a physiotherapist. At T246, after being directed to the absence of any invoices for physiotherapist consultations between 7 June 1999 and 13 July 2000, she agreed that she did not believe that there had been a problem with her back that warranted her seeing a physiotherapist during that period. However, she stated that she attended upon Dr Milliken on 9 September 1999 because she had had a period of headaches for about two weeks with vomiting on one occasion (at T267). The plaintiff said that her symptoms at the time were over her upper back and lower neck. She was referred to Mr Robertson, physiotherapist. Mr Robertson reported back to Dr Milliken on 10 September 1999 recording that the plaintiff was suffering from headaches with protracted cervical posture. In cross-examination at T269, the plaintiff agreed that if she had had a problem with her lower back at that time, she would have told Mr Robertson about it.

80. The plaintiff attended upon the defendant again on 20 September 1999, when she alleges that he told her that everything “was good” and did not tell her there were any problems following the surgery. The following exchange took place in cross-examination (at T254-255):-

“Q. You’ll notice that again on this occasion, that is 20 September, you don’t say anything there in terms of how you were at the time.

A. Yes, that’s correct.

Q. Is that because you can’t now recall how you were at the time?

A. Yes.

Q. So the only postoperative appointment – I’ve now taken you through postoperative appointments that you attended, I want to suggest on 14 April 1999, 12 May 1999, 7 July 1999 and 20 September 1999. The only one where you say you can recall any symptoms that you were suffering is the 7 July 1999?

A. Yes.

…

Q. You can agree or disagree with what I’m going to suggest to you now, but what I’m going to suggest is that in fact your account of what happened at those four postoperative consultations is based entirely on you either reading or something describing to you what was in Dr Hillier’s notes, not what you can recall. Do you agree or disagree?

A. I disagree.

Q. You told him on 20 September 1999, didn’t you, that you were very comfortable in terms of your back?

A. I don’t recall.

Q. What’s your recollection of your condition at the time?

A. That I was doing okay.

Q. If he’d asked you how you would’ve been might you have said, “It’s fine. I’m very comfortable”?

A. Yep.

Q. Also you were able to play hockey without any problem at that point, weren’t you?

A. Yes.

Q. If he’d asked you about hockey you would likely have told him that?

A. Yes.

Q. You didn’t report to him any symptoms in your low back that were limiting your activities of daily living, did you?

A. No.

…

Q. You didn’t report to him any symptoms in your lower back at that point, 20 September 1999, that were limiting your hockey, did you?

A. No.”

81. The plaintiff said that she ceased playing representative hockey at the State level in 2000 because her lower back pain was such that she struggled with the travel to and from Melbourne for training. In cross-examination at T258, she said that she believed that she could not manage the travel in January or February 2000. However, at T262, she agreed that in the late 1999 to the early 2000 period, she did not report an issue with her back to any practitioner because she was not having a problem at the time. She said that she attended a physiotherapist consultation at Healthfocus Physiotherapy on 10 March 2000 for low back manipulation before a hockey tournament, that she continued to play hockey at the club and regional representative level, and that she received physiotherapy treatment as a means to an end because she wanted to play hockey.

82. In the context of her return to hockey, Mr Downing asked the plaintiff in cross-examination about when she believed that the low back pain reoccurred after the surgery (at T237):-

“Q. What I’m asking you is in giving us that answer by saying, “I believed it reoccurred when I’d been playing hockey for a while or a time,” is that based on what you can recall happening or just based on what you believe would have happened, because once you got back to hockey, it would have stirred your back up?

A. No, I recall that I, I was okay for a period of time, I can’t recall how long that was.

Q. Do you mean for a period of time during the 1999 season or do you mean over years?

A. In, in the couple of years that followed, yes.

Q. So that would take it through to about 2001.

A. Yes.”

83. The plaintiff said that she attended Healthfocus Physiotherapy for appointments on 30 August 2000, 4 September 2000, 11 September 2000, 22 September 2000 and 23 October 2000. The following exchange took place in cross-examination at T269-271 with respect to those appointments:-

“Q. In terms of why you were there, you say nothing in any of those paragraphs about the basis of your attendance, correct?

A. That’s correct.

Q. Is the reason that you don’t say anything because you have no recollection?

A. Yes.

…

Q. Do you believe those attendances related to your lower back?

A. I would assume so.

…

Q. Could they have been your upper back?

A. I don’t believe so.

Q. Could they have been your neck?

A. I don’t believe so, not for that many attendances.

…

Q. The way you came to the view that they related to your lower back is not because you can now recall the detail of each attendance, correct?

A. Yes.

Q. But you say to attend that many times, you don’t believe you’d ever done that except in respect of your lower back.

A. Yes, that’s correct.

Q. So that from the number and pattern of attendances over that period, you’ve drawn from that that it must have been about your lower back.

A. Yes.

Q. Do you have any recollection of having lower back symptoms in the second half of 2000 that required frequent treatment?

A. I don’t recall specifically.

Q. I thought your evidence before was that you did well, in terms of your recovery from surgery, for a couple of years after the surgery and it was really from about two years later that there was a worsening.

A. Yes.

Q. Wouldn’t that then suggest that you weren’t having problems in the second half of 2000 that would warrant frequent physio attendances?

A. No.”

84. The plaintiff attended Healthfocus Physiotherapy on seven occasions between 14 March 2001 and 26 July 2001. In cross-examination (at T274), the plaintiff said that she was not able to rule out that she attended the physiotherapist on one or more of those attendances about neck, upper back or headache symptoms.

85. The plaintiff said that she attended physiotherapy on 21 January 2002 for treatment of her neck and upper back. Physiotherapy records were only available to the Court from this date onward. In cross-examination at T275-276, the plaintiff said that she did not recall having any conversations with anyone about the physiotherapist notes for the attendance on 21 January 2002, but rather that it was based on her independent recollection.

86. I observe that up to 21 January 2002, it appears that the plaintiff’s account of why she attended the physiotherapist was substantially based on assumptions made or inferences drawn by her based on her hockey and work commitments and how she recalls feeling in a general sense. From that date onward, that is, when medical records were available, it appears that the plaintiff’s account of why she attended the physiotherapist was based on those assumptions and inferences as well as having been told by her solicitors about details in the contemporaneous medical records. For example, at T279, the following exchange took place in cross-examination:-

“Q. I’m sorry. You say in paragraph 106 that on 12 [August] 2002, you attended your GP because you had a sore and stiff back after playing hockey?

A. Yes.

Q. Is that a reference to low back?

A. Yes.

Q. Is your evidence about that attendance based on your recollection or someone telling you what’s in the notes?

A. I don’t recall that specific date, so I may have had a conversation with someone from Commins Hendriks.”

87. Mr Downing then took the plaintiff to the records from the Albury Central Medical Clinic:-

“Q. Do you see the last entry is 12 August 2002?

A. Yes.

Q. The notes do indicate, “Played hockey yesterday and afterwards, had bit of a sore back, and now stiff and sore”?

A. Yes.

Q. The note also indicates that on examination, there was some tenderness over the muscles in the back?

A. Yes.

Q. Then I’m not sure what the last bit reads. It’s “pursues something”. It looks like “counsellor”, but I’m not sure. But in any event, looking at that now, does that seem to be, looking at what’s recorded, what someone recounted to you from what was in the doctor’s notes that led you to say what you say about the 12 August 2002 consultation?

A. Yes.”

88. With respect to the following consultation with Healthfocus Physiotherapy on 19 August 2002, the following exchange took place in cross-examination:-

“Q. Get 107, please, so that’s also on page 12. There, paragraph 107, you describe, “A week later on 19 August, going to physiotherapy at Healthfocus for lower back pain after playing hockey.”

A. Yes.

Q. I’m going to ask you about the attendance. First of all, do you believe that that’s your recollection that’s the source of that statement or is it based on someone telling you what was in the physiotherapy notes?

A. Yes, in – someone having a conversation with me.

Q. That is one of your lawyers having a conversation about what’s in the notes and you providing your response as to what you believe occurred?

A. Yes.”

89. Then in 2003, a further example is at T284:-

“Q. Paragraph 112 to 116 you describe your physio appointments that year.

A. Yes.

Q. … So you say first of all you attended on 31 March but you say nothing about the basis for attending?

A. Yes.

Q. Then you say you attended on 13 June and again you don’t say anything about the basis for attending?

A. Yes.

…

Q. Then you say 29 July you went to physio and you say about this one it was for a sore back after your hockey and your mum paid.

A. Yes.

Q. You then skip ahead to 20 September 2004, is that intended to be 2003, is that just a typo where it says 2004?

A. Yes, I assume so.

Q. And you say that your mum paid.

A. Yes.

Q. In respect of the three where you don’t provide a description as to why you attended, were you hoping to convey that they were all related to issues with your low back?

A. I would have, I’ve made the assumption that they would have been for my back.

Q. You included them because you assume that if you were attending over that period at that frequency, it would have been because of issues with your low back.

A. Yes, as that was generally the case.

Q. So it’s not based on a recollection.

A. No.”

90. With respect to reporting a sore back after hockey to her physiotherapist on 29 July 2003, the plaintiff said that she was able to include that in her statement only because someone from her solicitors Commins Hendriks had told her that was what was in the records (at T285, 317).

91. In cross-examination (at T286), the plaintiff described experiencing severe pain in the lower back sometimes in 2000, 2001 and 2002 whilst she was playing hockey. I observe that (at T288), the plaintiff then said that by 2001 during the hockey season, she was not experiencing severe bouts of lower back pain (but that there was back pain). She said that she never returned to the defendant because she trusted that he had done what he could do to help her back.

92. When the plaintiff turned 18 years old in 2002, she moved into a unit in Lavington which was owned by her parents. She began studying a Bachelor of Social Work at La Trobe University and was working at Kmart on a part-time basis. She stopped trying out for representative hockey teams in 2003 and said that the fewer games and associated travel meant that she did not require as much physiotherapy.

93. From about 2004, the plaintiff said that she began to experience aggravation of her back pain while sitting down and while working at Kmart. In cross-examination, the plaintiff said that her lower back pain at the time was “increasing and constant” (at T322), and that it was confined to her lower back (at T323). The plaintiff said that the pain was not “severe” in 2004 but that it was about a “five” on a scale from zero to ten (zero being no pain, ten being the worst pain) (at T323). She said that she experienced that level of pain constantly by 2004 and she did not think that she experienced acute periods of pain (at T323).

94. Mr Downing then took the plaintiff to para [20] of the Second Further Amended Statement of Claim (“2FASOC”) (which was not amended in the 3FASOC) where she alleges that in 2004 she experienced significant pain through her lumbar spine and into her thighs to the point that she would vomit. At T330, she said that she experienced that pain from 2004 onward and that it would get to eight on the scale from zero to ten. The following exchange then took place:-

“Q. How long would it last when it occurred?

A. Hours. I would feel like I was debilitated. Just I guess my – yeah, and my body’s way of reacting was to make me vomit obviously.

Q. Were you literally immobile in those times?

A. I’d be laying on the floor, like, yeah, I’d just, I, I couldn’t get relief, like, yeah, and I think that’s when my body would – that was the reaction my body would have.

Q. Would you be lying on the floor for like hours at a time when the pain was so bad?

A. No, that’s what I’d do to get, get relief.

Q. How often do you estimate that would occur in 2004?

A. Not regularly.

Q. What, a couple of times a year, five times a year, ten times a year?

A. Yeah, maybe a few times a year.

…

Q. Did you ever seek treatment when a bout of pain to that extent occurred?

A. I would probably go and see my physio. Generally I would manage myself. Generally when I feel like that, if I have a really hot shower, if I rest my body and take some medication, I could push through it, like, it would pass with some time and some rest.

…

Q. Where you would go to your physio, you’ve told us at times when you would have a bout of pain like that, you’d go to your physio. I take it you would tell them that you’d had an attack of acute pain or something like that?

A. Yes, yes, I, I had a pretty good – I guess the physio knew generally, you know, how I was feeling and, yeah, I was open with them about my, how my back was going.

Q. When you went along after one of these attacks, you would say something like, you know, “I’ve had really bad pain into my back and legs and I vomited,” or something like that, you’d describe what happened to you.

A. Yes.

…

Q. So thinking from the period 2004 right through to now, how often were you getting instances or events of this type?

A. They would most often occur in the really cold months, particularly if I was out in the cold weather or doing strenuous activity. I don’t know that I can put a number on it.

Q. Have they become less frequent over time or more frequent since 2004?

A. More frequent.

Q. More frequent, so if they were starting at about three in 2004, are they still occurring now?

A. Yes.

Q. How often would you say they’re occurring now?

A. Monthly.”

95. The plaintiff said that despite experiencing ongoing backpain from 2004 to 2006 inclusive, she stopped attending physiotherapy altogether because she could not afford it. When she experienced pain, she would simply rest and not go out with her friends. She was only attending hockey training twice a week and playing one game per week, so she believed that she could manage her lower back pain at home through self-exercise and stretching. However I observe that in cross-examination (at T335), she said that it had not occurred to her in 2004 that the defendant might be able to assist her because at that time she was seeing her physiotherapist. It appears from the Healthfocus Physiotherapy notes that she only attended physiotherapy once in that year, on 20 September 2004, when she complained of right frontal headache and tightness in the neck.

96. I also observe that in her 21 February 2024 statement, the plaintiff said that after she gave birth to her third child (in 2017) she experienced a “new radiating left leg and thigh pain and felt a change in sensation in my left lateral thigh to knee”. When questioned during examination-in-chief on day 1 of the trial about those symptoms (at T68), the following exchange occurred:-

“Q. You say that there was some form of increase in pain. How would you describe that increase? Was it an increase in duration or intensity or how would you properly describe it?

A. Definitely an increase in intensity. I was also – that was the point in time where I started to get radiating pains down my left leg and into my buttocks.”

97. In cross-examination (at T362-363), the plaintiff said that she began to get a radiating pain into her buttocks and thighs in 2004. Mr Downing cross-examined the plaintiff on this apparent inconsistency and she said that she thought that the pains were different, which is why she did not mention the earlier radiating pain in examination-in-chief (at T365-366). In cross examination at T398, the plaintiff said that the type of pain became a radiating pain in 2017. The plaintiff then said that in 2004 the pain was in her lower back and radiating into the buttocks and hamstrings, but she developed a numb sensation in 2017 (at T399). The plaintiff later clarified (at T402) that what she meant by “radiating” was that the pain was constant and that whenever she stepped, she experienced that pain. She said that the numbness she experienced was on the left-hand side of her left leg.

98. From 2006, the plaintiff was working about 30 hours per week at YES Youth Services as a case manager. In cross-examination at T439, the plaintiff said that there were times during that year that she did not attend physiotherapy, when she otherwise would have, because she was prioritising saving to purchase a residential property.

99. In 2007, the plaintiff was attending hockey training once a week and playing one game per week. On 12 November 2007, she commenced working as a Team Leader at YES Youth Services which required her to perform desk work and sit for lengthy periods of time. She said that her back pain was harder to manage in this role than when she was studying and working at Kmart on a part-time basis. In her 21 February 2024 statement at [139], the plaintiff said that she was able to afford physiotherapy and undertook it. In cross-examination at T444-445, she said that there were times when she went without physiotherapy because she was prioritising spending money on (or saving for) other things. The plaintiff agreed (at T452, T457) that what was written in her 21 February 2024 statement with respect to physiotherapy appointments in 2007 reflected what her solicitors told her about what was in the Healthfocus Physiotherapy records, rather than her independent recollection.

100. The plaintiff stated that she ceased playing hockey altogether in 2008 to preserve her lower back and manage her lower back pain. The plaintiff said that she experienced the worst flare up of back pain that she had had up to 2008 at her engagement party (at T468-469). She said that she did not recall attending upon anyone for treatment after that flare up. In cross-examination (at T471), she agreed that what she said in her 21 February 2024 statement with respect to physiotherapy and general practitioner appointments in 2008 reflected what her solicitors told her about those attendances, but that she had an independent recollection of sinus issues in that year. I observe that with respect to the plaintiff’s sinus surgery (which occurred in mid-2007) the following exchange occurred in cross-examination at T475:-

“Q. Do you recall if you missed any hockey after having the sinus surgery?

A. I believe I had it done on the school holidays.

…

Q. You’d not only finished—

A. Yes.

Q. –school, you’d finished university. So you didn’t have it during school holidays, presumably.

A. No. Well, yes. No, it wasn’t. Sorry.”

101. The following exchange took place in cross-examination (at T475-476) with respect to a Healthfocus Physiotherapy consultation on 21 July 2008 (one of the two physiotherapy consultations that year):-

“Q. You describe there attending Mr Robertson for a manipulation of your back for lower back pain on 21 July.

A. Yes.

…

Q. Do you recall that someone told you that what in fact the records show for that attendance, that is 21 July 2008, that you turned up and complained of neck stiffness?

A. I don’t recall.

Q. If you’d been told that the records show that you’d attended for neck stiffness you would presumably have included that in your statement.

A. Yes.

Q. Can you explain how you say you were able to describe that as an attendance for lower back pain and lower back manipulation when the records refer only to neck stiffness?

A. I, I would assume it’s an error.

…

Q. If you’d been to the physio on 21 July 2008 as the records suggest about the neck, would you agree that if you’d had a problem with your lower back at the time you would have reported it?

A. Yes.

Q. For instance, if the engagement party had been in the very recent past and you’d had a severe flareup of low back pain to the point that you’d had to go inside, lie down and vomit, you would have told the physiotherapist?

Yes.”

102. At [150] of her 21 February 2024 statement, the plaintiff said that she attended a consultation with Dr Allen and complained of sharp pains radiating to her back on 9 September 2008. The Albury Central Medical Clinic notes from that consultation reflect the plaintiff complaining of abdominal pain with some radiation to the back. The plaintiff accepted (at T485) that her statement was misleading.

103. In cross-examination the plaintiff stated that she in fact used various devices such as a whale’s fin implement, a ball and another implement which consisted of two balls attached to each other to assist with stretching, to the point where she now uses them daily and that she had used them “all the way through” (at T87).

104. The plaintiff has four children who were born in 2009, 2013, 2017 and 2021. She stated that each of her pregnancies caused her to experience an aggravation of her lower back pain, with the pain only returning to pre-pregnancy levels after the first and second pregnancies. After the two later pregnancies she said that her lower back pain was permanently exacerbated.

105. In cross-examination (at T553), I observe that with respect to the first two pregnancies, the plaintiff said that she was referred to Wodonga Specialists Obstetricians & Gynaecologists because of the history of her back condition. She agreed that she understood that telling them about her back was an important part of the relationship that she had with her obstetrician and gynaecologist.

106. With respect to the 2009 pregnancy, the plaintiff said that she attended Healthfocus Physiotherapy because she had a flare up of lower back pain on 15 April 2009. The notes for that attendance reflect the plaintiff attending with neck stiffness and tightness, and with left buttock and hip pain. In cross-examination (at T493), the plaintiff accepted that her statement was not “specific enough” regarding that consultation. She said that she attended Healthfocus Physiotherapy for back pain on 17 August 2009. The notes for that attendance specifically record that the plaintiff did not have a complaint of low back pain, but rather that she attended with tightness across her shoulders and shoulder blades. In cross-examination, the plaintiff said that if she were asked about lower back pain at that point in time, she would have said that her lower back pain was affecting her all the time, that it had got worse during the pregnancy and that it was travelling down the back of her legs through her buttocks into the back of her thighs (at T502-503). She said that she could not understand why she would have said that she had no complaints of lower back pain, if she had been asked about lower back pain.

107. The plaintiff said that she attended Healthfocus Physiotherapy on 6, 8 and 13 October 2009. In cross-examination (at T512-513), the plaintiff said that she was having problems with her neck, shoulders and lower back which was associated with breastfeeding and that these were the reasons why she was attending physiotherapy. The notes for those attendances contain no reference to lower back pain. The plaintiff said that she attended on 18 December 2009 for right shoulder ache.

108. At various times throughout the plaintiff’s cross-examination, she said that her lower back pain has been constant and getting worse over time since 2004, ie over the past 20 years.

109. In 2017, the plaintiff experienced a new pain radiating to her left leg and thigh, and she felt a change in sensation in her left lateral thigh to the knee area. I have noted above Mr Downing’s cross-examination with respect to the timing and description of those symptoms. In cross-examination (at T519-520), the plaintiff said that her low back and buttock and leg pain got significantly worse during the 2017 pregnancy and that since she gave birth in 2017 (following a brief period of relief), the pain has worsened over time.

110. With respect to the 2017 pregnancy and the significant exacerbation of her symptoms (over and above what she had experienced during previous pregnancies), the plaintiff said (at T536) that it occurred when she was “really weightbearing” or at about the six-month mark. Over the period of her 2017 pregnancy, there is no reference to low back pain in the Albury Central Medical Clinic attendance notes or the Wodonga Specialists Obstetricians & Gynaecologists attendance notes. The plaintiff did not attend any physiotherapy appointments while she was pregnant. There is no reference to back pain in any contemporaneous notes after the pregnancy until 30 April 2018 when she presented to Dr Allen.

111. On 11 January 2019, the plaintiff had an x-ray of her lumbar spine. The plaintiff’s physiotherapist, Mr Robertson, sent a letter to her general practitioner, Dr Gaini Allen, on 15 January 2019 which read, “Thanks for seeing Erin. Complaining of low back pain and hamstring pain of recent times.” On 22 January 2019, she attended a consultation with Dr Allen which the plaintiff said was in relation to her lower back pain and the change in sensation in her left lateral thigh. Dr Allen referred her for an MRI which took place on 29 January 2019. Dr Allen reviewed the plaintiff’s results and referred her to the defendant on 6 February 2019.

112. On 20 February 2019, the plaintiff attended a consultation with the defendant at which time he reviewed her MRI scan. He referred her for a bone scan which she underwent on 6 March 2019. The plaintiff attended a further consultation with the defendant on 13 March 2019, at which time he said to the plaintiff words to the effect of “you need to try facet joint injections to see if that relieves your pain” and referred her for facet joint injections. She received the facet joint injections on 20 March 2019.

113. On 11 April 2019, the plaintiff had a follow-up consultation with the defendant. He referred her for further physiotherapy and prescribed anti-inflammatory medication.

114. On 16 May 2019, a further x-ray was performed on the plaintiff’s lumbar spine and she attended another consultation with the defendant. At the consultation, the plaintiff said to the defendant words to the effect of:-

“I am in the most pain I have ever been in after the facet joint injections, physiotherapy with Mandy Hobbs and anti-inflammatories”.

115. The plaintiff stated that the defendant responded with words to the effect that:-

“The conservative treatment is not helping there is no doubt that you will need surgery within the next 5 years… the x-ray shows some movement. You have changes which shows the vertebrae like they are dying they are a different colour. The surgery we did on you at the time was quite cutting edge. We would not do that now, we would do a cage fusion”.

116. The defendant proposed referring the plaintiff to Dr Anil Nail for surgery, saying to her words to the effect that:-

“My colleague can complete the surgery at the Albury Wodonga Private Hospital, he comes from Sydney regularly to perform surgeries in Albury and I will oversee the surgery. … having the surgery locally would be better for you.”

117. With respect to her left thigh symptoms, the plaintiff indicated that the defendant said to her words to the effect that “the cyst in your left knee is interfering with your ability to walk and squat comfortably”. The defendant referred her to Dr David Kirwan, orthopaedic surgeon, to assess her symptoms.

118. The plaintiff stated that she had never thought that anything was wrong with the surgery that the defendant had performed in 1995 and that she had never thought that she should get legal advice until the appointment with the defendant on 16 May 2019.

119. On 13 June 2019, the plaintiff attended a consultation with Dr Nair at the defendant’s rooms. She said to Dr Nair words to the effect of “I have had ongoing lower back pain which radiates into my left buttock, thigh and leg” to which he responded “we could do anterior fusion surgery in Albury at the Private Hospital. We would do a bone graft and get it all cleaned up”.

120. On 25 June 2019, the plaintiff attended a consultation with Dr Kirwan. He examined her knee and said to her words to the effect that “the cyst in your left knee is not affecting you, you have a very normal knee with a small restriction in flexion but you do not need to do anything about it, it is not affecting your movement or your gait, you do not need any treatment or surgery”.

121. In 2020, the plaintiff fell pregnant with her fourth child. She conducted her business, Twinkle Toes (to which see below), until December 2020 when she was approximately 28 weeks pregnant. She gave birth on 8 March 2021.

122. On 28 June 2021, Dr Allen prescribed the plaintiff antidepressant medication. The plaintiff stated that at the time she felt like she could not cope as her father was ill, her husband was struggling at work and she had chronic back and leg pain. She ceased taking antidepressant medication shortly after a review with her general practitioner on 7 July 2022, about one year later.

123. The plaintiff stated that her current symptoms included constant, throbbing lower back pain which is worse with activity, and which radiates into both buttocks and legs (but worse on the left). She is stiff when she wakes up in the morning, when she stands still or poses in a static position for too long. This causes radiation of pain through her thoracic spine and neck, and she gets headaches. She has physiotherapy as often as she can, uses heat packs and takes hot showers, and avoids going out in cold weather as much as she can. She has tried acupuncture and massages. She stated that she spaced out her pregnancies so that she did not have to handle a newborn child and a young toddler concurrently. She avoids repetitive actions and lifting her children as much as she can. She regularly requires over the counter pain and anti-inflammatory medication.

124. The plaintiff said that her sleep is interrupted by pain and she wakes up every couple of hours to readjust herself, take pain medication or re-heat her heat pack. It takes a while for her to “warm up” in the morning or after she has driven long distances.

125. In her statement of 20 March 2024, the plaintiff said that she has also experienced problems with urinary incontinence since the surgery. She stated that when she laughs, sneezes or plays sport, she will experience urinary incontinence. She wears absorbent underwear most days so that she can go out in public without fear of wetting herself. Mr Downing cross-examined the plaintiff at length on her symptoms of urinary incontinence, frequency and urgency. She said (at T578-579) that the first occasions of urinary incontinence and urinary urgency were not until 2000 or 2001. At T581-582, the plaintiff said that the frequency of urinary incontinence and volume of urine lost have increased gradually since first onset. Mr Downing took the plaintiff to various contemporaneous medical records where there was either no note relating to urinary incontinence, or a note specifically indicating that the plaintiff did not have urinary problems (T590-594). The plaintiff said that she did not believe that she was “incontinent” at the time of these consultations, because to her incontinence meant something more severe than what she was experiencing. She merely thought that she had a weak bladder and did not think that this was significant.

126. In her statement of 4 June 2024, the plaintiff stated that she attends a local Thai massage therapist for massages intermittently. She continues to use over the counter pain medication (increased in winter months).

Employment and Education

127. The plaintiff completed year 12 in 2002.

128. From 2002-2006, the plaintiff worked part-time at Kmart. She completed a Bachelor of Social Work at La Trobe University during this period. In 2004 and 2005, she was employed as a disability support worker through a university placement with Skills Innovative Training Enterprise (SITE).

129. In 2007, the plaintiff was employed at YES as an employment-based support worker working with young people who were at risk of becoming homeless. She started in a social worker role and was promoted to a team leader role shortly thereafter. When she commenced this role, she says that it was her intention to stay in that position until retirement. The sedentary work involved in her role as team leader caused her severe lower back pain which radiated up her thoracic spine and neck, which caused headaches. Mr Downing cross-examined the plaintiff at length regarding her employment in the team leader role (at T700-T715). The plaintiff agreed that she did not raise physical problems caused by her work with anyone in the workplace. She agreed that she would have been comfortable to raise with her superiors “little issues” that she thought might assist her in completing her duties, but that if she requested variety in her role because the sedentary work was hurting her, that would have been saying that she could not do her job.

130. The plaintiff worked fulltime in this role until 2009 when she commenced maternity leave with her first child. She returned to work between that time and the time at which she commenced maternity leave for her second child, although it does not appear that she ever returned to fulltime work.

131. The plaintiff stated that due to an internal restructure, it became unsuitable for her role to be performed on a part-time basis. She said that she was unable to commit to fulltime work because she was exhausted from all the domestic duties she was doing at home and the need to pace herself with those tasks because of the lower back pain. She could no longer keep up with fulltime work. She took a redundancy in approximately October 2014.

132. Toward the end of 2014, the plaintiff purchased a franchise called “Twinkle Toes”. The business involved selling baby hand and feet sculptures and allowed her to work from home according to her own schedule. She sold the sculptures at local market stalls and fulfilled online orders. The plaintiff’s husband would assist her with setting up and packing down the stalls.

133. In 2017, the plaintiff no longer attended market stalls because she said she was in too much pain and did not want to ask her husband to continue to set up and pack down the stalls. She continued to run her business from home until COVID-19 “killed” her business in about 2020 or 2021. She says that she was unable to return to part-time employment because of her fatigue and pain.

134. In cross-examination, at T745, the plaintiff disagreed with the proposition that the limits on her employment were her family responsibilities rather than any physical limitations she experienced.

135. On 11 March 2024, the plaintiff commenced work as a Health and Wellbeing officer. She described the position as an advocate for retired nuns. She works five hours per day three days per week. She attends clients at their home or at a residential facility and assists them with administrative tasks. She can work from home to complete clerical duties or telephone calls. She stated that she experiences an increase in lower back, buttock and leg pain when carrying out her work duties.

Domestic Assistance

136. The plaintiff lives in a four-bedroom split level house on a sloping block. She says that she struggles to carry her children up the stairs and around the house. She has difficulty with the sloping block, particularly walking up and down the driveway.

137. The plaintiff’s husband is apparently responsible for mowing the lawns and yard maintenance. She evidently attempted to mow the lawns on one occasion, but experienced pain and never attempted it again.

138. When her husband is working, the plaintiff says that she performs all of the daily domestic duties. She says that she is exhausted by the end of the day and takes over the counter pain medication and goes to bed with a heat pack on her lower back. The plaintiff states that her mother has assisted when she could, but she had to care for the plaintiff’s father on a fulltime basis due to his medical conditions. Since June 2023, after her father’s death, she states that her mother has been able to assist her more often and undertakes childcare responsibilities for approximately five hours per day twice per week.

139. The plaintiff says that she modifies her method of performing the domestic tasks she is required to complete in order to minimise movement of her back. This often involves her sitting on the floor, so as to limit bending over. She has purchased particular cleaning implements to avoid certain movements and she always attempts to have items delivered directly to her home or arranges for “click and collect” purchases. The plaintiff and her husband purchased a new motor vehicle which has made it easier to put her son in his seat and allowed her to stand up inside instead of bending over when she removes items from the vehicle.

Social and recreational

140. The plaintiff says that prior to the surgery she was a “social butterfly”. When she quit hockey, she lost a lot of her social life. She says that she has lost the sense of community she had while playing hockey in Albury.

141. The plaintiff says that she has two close friends who visit her and help out around the house. She does not go out much, particularly in winter due to her pain. She no longer goes on camping holidays with her family. Instead, she stays at home with her youngest child and visits her family for a few hours if they are camping nearby. She is slow when she participates in activities with her children, which makes her feel older than she is.

Psychological Health

142. The plaintiff feels that in the past she was “well adjusted and able to cope with things” but now outside stressors “hit [her] hard” and she gets depressed easily. She says that she would attend upon a psychiatrist if she could afford it.

Limitation

143. The plaintiff claims that she saw a Facebook advertisement posted by her solicitors, Commins Hendriks, on 3 September 2019 and stated:-

“After the ad popped up it caused me to wonder for the first time whether or not Dr Hillier had done the right thing by me and this was what prompted me for the first time to seek legal advice.”

144. At “[a]round the time [she] was seeing Dr Nair”, the plaintiff had made investigations into a potential public liability claim with respect to the School Incident.

145. In about 2018, the plaintiff recalled that she met someone at her children’s school who said to her words to the effect of:-

“I was operated on by Dr Hillier 6-7 years ago and my back is stuffed.”

146. She did not know this person well and said that it did not cause her to think that the defendant had done anything wrong with respect to her surgery.

147. The plaintiff said that before she contacted her solicitors on 3 September 2019, she had not had any discussions with anyone about seeking legal advice with respect to the defendant. She had attended upon a solicitor twice after the surgery: first for a conveyancing matter and second for the creation of a power of attorney for her mother.

148. Commins Hendriks contacted the plaintiff after 3 September 2019 and said to her words to the effect of:

“We have looked into your matter and we think you have a case against Dr Hillier.”

149. The plaintiff said that this was the first time she understood that she might have a claim against the defendant.

Nathan John Briggs

150. The plaintiff relied upon an Evidentiary Statement of Nathan John Briggs, the plaintiff’s husband, dated 6 March 2024 which was adopted by him.

151. Mr Briggs detailed his observations of the plaintiff’s back pain since they met in high school. He said that for the majority of their marriage, he was the main breadwinner and the plaintiff undertook domestic responsibilities to the extent that she could with her disabilities. Mr Briggs described providing domestic care to the plaintiff in various ways, including assistance with general chores and massaging the plaintiff’s back. He estimated that he spends about two hours per day (sometimes more) every day of the week assisting her.

152. With respect to the limitation issue, Mr Briggs said that he had never discussed the surgery with the plaintiff until about late 2019 when his wife first instructed Commins Hendriks.

153. In examination in chief, Mr Briggs gave some detail of the plaintiff’s and his engagement party. He said that it was held outside on a very cold night, and that at about 2-3 hours into the event, he had to go inside with the plaintiff and sit in front of the heater because she “wasn’t feeling too well” and her back pain was “flaring up”.

154. In cross-examination, Mr Briggs said that in about 2007 or 2008, he understood that the plaintiff was attending her physiotherapist for pain in her lower back. He recalled that she would complain of issues with her lower back, and that after starting in her managerial role with YES, she complained of headaches which she believed were caused by her low back pain. He said that after her pregnancy in 2017, his wife was complaining more about her back pain but that she has “always had a sore back.” When asked whether it seemed to him that the plaintiff’s back pain up until that time was at a “fairly low level”, he provided the following answer:-

“Look, always travelling on trips, she’s always been sore, we’ve always had to stop. Since [2017] we have to stop more constantly. Like, for example, going to Forster, we’ll stop three times because of her back since she’s had [her third child].”

155. Mr Briggs said that the plaintiff did “the best she could” up until her third child was born, but then the back pain seemed to worsen and affect her more regularly. He recalls her having undertaken various exercises, therapies and remedies at home, including using the whale fin device, taking Panadol or Nurofen, stretching, using heat packs and taking hot showers. She had been undertaking that self-treatment for many years. She now does it on a very regular basis.

156. Mr Briggs acknowledged on many occasions that many of the events he was being asked to recall occurred a long time ago. He conceded that his memory may be incomplete.

Suzanne Beverley Leah

157. The plaintiff relied upon two Evidentiary Statements of her mother Suzanne Beverley Leah, dated 29 February and 3 June 2024. Ms Leah adopted these statements and gave evidence.

Statement dated 29 February 2024

158. In her 29 February 2024 statement, Ms Leah described the plaintiff as a very outgoing, sociable child who enjoyed hockey prior to the surgery. She observed that the plaintiff suffered from lower back pain following the initial injury in approximately 1995, which occurred when a chair was pulled out from underneath her and she fell on the floor, landing on her tailbone.

159. Ms Leah detailed the plaintiff’s medical treatment prior to the surgery, most of which was unrelated to her current alleged injuries and disabilities. Ms Leah stated that the plaintiff received treatment for a number of symptoms including right shoulder pain, lower back pain, abdominal pain, nausea, discomfort when passing urine and frequent urination.

160. Ms Leah said that the plaintiff participated in regular hockey training, games and competition. The plaintiff played at a representative level including at the State level.

161. Ms Leah then set out the treatment immediately leading up to the surgery. She said that on about 7 February 1999, Mr Shane Robertson, physiotherapist, referred the plaintiff to have an x-ray. On 12 February 1999 at the defendant’s rooms, following what she believed was a general practitioner’s referral, the defendant said to her words to the effect that “[the plaintiff] has broken her back” and “you can take her for injections to see if that helps the pain”. After the consultation with the defendant, she took the plaintiff to Mr Robertson for physiotherapy treatment and separately for spinal injections. Ms Leah said that on 23 February 1999, she took the plaintiff to see the defendant who said to her words to the effect that “[the plaintiff] should see Shane Robertson again to see if the pain settles down and then come back to see me”.

162. Ms Leah stated that on 3 March 1999, during a consultation with the defendant, she said to him words to the effect that “the injections have not helped” to which the defendant replied:-

“The problem is that Erin’s L5 vertebra is slipping off her tail bone and it will fall off completely and cause her to lose height… [and] we can fix it with a fusion surgery where we take some bone from her hip and fuse her spine.”

163. According to Ms Leah, the defendant also said words to the effect that:-

164. “the vertebra that is slipping is rubbing on the spinal cord and that is what is causing the pain”;

165. “if we use a bone graft we do not have to put any metal in which is good because she is so young and she will heal fairly quick, it’s the best option for her”; and

166. “I have footballers from Melbourne come to see me and have me operate on them so I know about elite sports stars”.

167. Ms Leah stated that the defendant:-

168. did not suggest any treatment for the plaintiff other than the surgery and neither did he recommend that she or her husband get a second opinion;

169. did not state that there may be a chance that the bone that he would use for the bone graft might not fuse;

170. did not discuss the chance of failed back surgery; and

171. seemed very confident in his recommendation of the surgery.

172. Ms Leah also said that the plaintiff was not at that time taking any pain killers for her back pain.

173. Ms Leah said that the defendant performed surgery on the plaintiff’s back on or about 18 March 1999. She recalled the defendant saying to her words to the effect that “the surgery was a success”. The plaintiff was discharged from hospital a few days later, and she observed that the plaintiff wore a back brace and spent a lot of time lying down or (sometimes) standing but not sitting. She said that she cared for the plaintiff after the surgery by cooking, cleaning and helping her with her personal care. The plaintiff had seven physiotherapy appointments from the date of the surgery until 30 April 1999. Thereafter, Ms Leah took the plaintiff to have scans taken of her back and then attended the defendant’s rooms with her daughter on 12 May 1999. She said that the defendant said to her words to the effect that “it is all looking good with the fusion, [the plaintiff] can go back to playing hockey”.

174. Ms Leah said that the plaintiff returned to playing hockey shortly after the 12 May 1999 appointment with the defendant, and that she only took the first half of the season off in 1999. She said that the plaintiff’s treatment in 1999-2002 included consultations with the defendant on 7 July 1999 and 20 September 1999, and extensive physiotherapy treatment.

175. Ms Leah said that after the plaintiff turned 18 in 2003, she moved away from the family farm and into a share house. She studied social work at university and worked part time at Kmart. The plaintiff’s physiotherapy and doctor’s appointments were then her own responsibility. Ms Leah observed that the plaintiff’s back pain and mobility became progressively worse over time, particularly during colder months, and her complaints became more frequent. She said that the plaintiff wore a back brace during her pregnancies in 2009, 2013 and 2017. After giving birth to her third child in 2017, Ms Leah observed the plaintiff to struggle picking up the child.

176. Ms Leah said that she now often observes the plaintiff using a heat pack, doing stretches at home and asking her husband to massage and manipulate her back. Ms Leah purchased a back massager and heat pads for the plaintiff’s chair to relieve her pain. She has observed the plaintiff modify the way she performs domestic tasks, including sitting on the floor to do the laundry, using an air fryer to cook and loading and unloading the dishwasher in a manner that avoids bending. Ms Leah was unable to assist the plaintiff in the past as much as she would have liked to, as she was required to care for her late husband. Now, when she visits the plaintiff’s house, she helps her with laundry and by taking her children to appointments and other commitments. She said that the plaintiff lost the social aspect of hockey when she stopped playing, and that her social life is now limited.

177. With respect to limitation issues, Ms Leah indicated that she has never seen a solicitor for advice regarding the surgery and that she had never thought about doing so. She said that it had never crossed her mind – at any time – that there was a problem with the surgery.

Statement dated 3 June 2024

171. In her 3 June 2024 statement, Ms Leah stated that she attended the plaintiff’s consultation with the defendant on 12 February 1999 during which she recalls the defendant looking at the plaintiff’s x-rays. She provided further detail and referred to paragraphs of her earlier statement. She took issue with certain matters contained in the defendant’s statement of 14 March 2024. I note the following:-

172. At the 12 February 1999 appointment, Ms Leah says that the defendant did not tell her various pieces of information set out in his statement, including:-

(a) information regarding spondylolytic spondylolisthesis and his view that the plaintiff had low back pain which seemed to be due to a symptomatic grade 1 spondylolisthesis; (b) his conclusion that there was a structural explanation for the plaintiff’s pain, with it being due to a grade 1 slip of L5 on S1; (c) his thinking that the plaintiff’s high level sporting activities may be putting her congenital spondylolisthesis under a heavier than normal load and that this was leading to her back pain, and his expectation that the plaintiff would likely respond to non-surgical measures although he had some concern about the seriousness of her pain; (d) his explanation that the plaintiff had a type of weakness at the L5/S1 level of the spine, that the basis of the initial treatment would be to see if the focus of pain would respond to injection of steroid, that if it did respond, that would help confirm that the L5/S1 defect was the cause of her pain and that the injection might help the plaintiff in the long-term; (e) that if the injections did not work, some patients would ultimately require surgery in the form of a fusion aimed at preventing the slip of L5 on S1 progressing (instead, she said that the defendant said if the injections did not work then she would need surgery); (f) that they could try a lumbar brace as a form of treatment, but he expressed doubt about the effectiveness of such treatment; and (g) that he would follow the plaintiff up in six months’ time after the injections and that he would do another lateral x-ray generally and with respect to the plaintiff’s progression.

2. At that appointment, Ms Leah says that:-

(a) she said to the defendant words to the effect that “[i]n about 1995 [the plaintiff] hurt her back at school when a chair was pulled out from underneath her and she fell on her tailbone”, which is at odds with the defendant’s statement; and (b) the defendant said that the plaintiff had broken her back.

3. At the 3 March 1999 appointment, Ms Leah does not recall receiving any pamphlets from the defendant or the defendant referring to any such pamphlets. She did not recognise the pamphlets which the defendant annexed to his statement, and says that the defendant did not identify any risks with the surgery he recommended.
4. She does not recall the defendant writing to her or her husband after the 3 March 1999 appointment; and
5. At the 14 April 1999 appointment, the plaintiff would not have indicated that she was “not keen” to wear the brace, because she would never have jeopardised her recovery in any way. The plaintiff in fact wore the back brace and was committed to ensuring that she did not sit down. She lay down or stood up in order to aid her recovery.

The defendant

172. The defendant relied upon two Evidentiary Statements dated 14 March and 7 June 2024, which were adopted by him in evidence. He was briefly examined by Mr Downing and was cross-examined by Mr Cranitch SC, who appeared for the plaintiff with Ms Hillier.

Statement dated 14 March 2024

173. In his 14 March 2024 statement, Dr Hillier indicated that he was now a retired orthopaedic surgeon. His specialty was spinal surgery. He obtained a Bachelor of Medicine and Bachelor of Surgery from the University of Adelaide in 1967 and completed his internship and residency at Queen Elizabeth Hospital in South Australia, the Royal Australian Army Medical Corps in Canberra and the Royal Adelaide Hospital between 1968 and 1975. He became a Fellow of the Royal Australasian College of Surgeons in 1975. The defendant said that he practised in both private and public hospitals between 1976 and approximately 2015 when he entered “semi-retirement”. The defendant said that at that time he ceased operating as a principal surgeon and operated as an assistant to Dr Anil Nair and Dr John Choi until early 2021. He retired on 28 February 2021.

174. The defendant said that he has an independent recollection of the plaintiff and the treatment he provided to her. His statement was based on those recollections, his standard practices and those contemporaneous clinical records which were still available. The defendant no longer had a complete set of clinical records for the plaintiff. He relied upon his handwritten consultation notes and records independently obtained by the plaintiff’s solicitors from other sources.

The defendant’s standard practice

175. Dr Hillier said that in 1999 it was his standard practice to:-

176. write long-hand notes during a consultation as the patient was talking;

177. read the referral letters he had received for a patient before the patient came into the room;

178. start consultations by taking the patient’s clinical history, recording notes and an initial pain pattern;

179. get the patient up and examine them and, if the patient complained of nerve pain or symptoms that suggested possible nerve involvement, do a more extensive study of nerve function; and

180. record important examination findings.

181. With respect to patients who attended with back pain, the defendant’s standard practice was to ask the patient to:

182. stand and point to where the pain was, and which movements hurt;

183. lie down on the examination table on their back to test straight leg raising, looking for evidence of nerve tension, muscle tightness and any other muscle weakness in the lower limbs; and

184. roll onto their stomach to apply pressure to the area of the spine where the patient identified pain, to see if the pressure provoked pain.

185. Following examination, it was Dr Hillier’s standard practice to look at any films or other investigations available to him and discuss those with the patient. He would then read any reports that the patient brought to him, or that he received from the referring general practitioner. He would only record what he regarded to be the pertinent findings in his own notes.

186. In relation to describing spinal procedures to patients, the defendant’s standard practice was to use spinal models as props to explain the disc and nerve structure to patients. He would use pamphlets as an aid to his discussion and provide them to the patient to take home with them. Dr Hillier said that he could not remember a time when a patient had left the pamphlets behind.

187. If applicable, Dr Hillier would conclude consultations by telling the patient where he thought any pain was coming from, what they might do next and why. He would write referrals by hand while the patient remained in the room, and hand them over so that the patient could take them there and then.

188. Once the patient had left the room, it was Dr Hillier’s standard practice to immediately dictate any letters arising out of the consultation. He would do this before seeing his next patient. A typist would thereafter type up the letter, and he would proof-read it before it was sent.

189. Between 1999-2011, Dr Hillier’s standard practice was to do his ward rounds (usually about three patients) and then go immediately back to his desk to write any notes. Those notes would only contain matters which he regarded as material, such as if there was a new or significant pattern of pain.

The defendant’s treatment of the plaintiff

182. The defendant said that he had no reason to believe that he deviated from any of his standard practices in his treatment of the plaintiff.

183. Dr Hillier said that he first saw the plaintiff on 12 February 1999 in the presence of both of her parents. There were aspects of her presentation that stand out in his mind because she was unusual amongst the cohort of patients who came to see him. Those aspects were that she was young, sporty, playing competitive hockey and that she had back pain which was troubling her to the point that she elected to have surgery soon after her presentation.

184. The defendant’s longhand consultation notes of the 12 February 1999 consultation are set out at paragraph 19 above.

185. The defendant said that spondylolisthesis is sometimes described in terms of its grading, where Grade 1 is the least advanced and Grade 5 is the most advanced. His description of the plaintiff as having Grade 1 spondylolytic spondylolisthesis suggests that the slippage involved less than 1/3 of the surface of the plate.

186. The defendant’s letter to the plaintiff’s general practitioner, Dr Ling, dated 12 February 1999 (the same day as the first consultation) is set out at paragraph 20 above.

187. Dr Hillier said that, when he was treating the plaintiff in 1999, he thought that her high level sporting activities may have been putting her congenital spondylolisthesis under a heavier than normal load and that this was causing her back pain. He stated that his expectation was that the plaintiff would likely respond to non-surgical measures, but he had some concern in relation to her pain being serious enough for her to be referred to an orthopaedic surgeon at her young age and that her symptoms seemed to have persisted despite having already attended a physiotherapist.

188. Dr Hillier said that the gist of what he said to the plaintiff and her parents at the 12 February 1999 consultation was that there were no signs of a malignant cause of the pain, but that she had a mechanical problem which was not unusual in people doing high-level sport. He said that he reassured them that the problems with which the plaintiff presented were often well managed with non-surgical treatment. In relation to a plan of treatment, the defendant stated that, during the 12 February 1999 consultation, he stated that:-

189. the plaintiff had a type of weakness at the L5/S1 level of the spine, and that the basis of the initial treatment would be to see if the focus of pain would respond to an injection of steroid;

190. if the pain did not respond, that would help confirm that the L5/S1 defect was the cause of her pain;

191. the injection “may help the plaintiff long term”;

192. if the injection did not work, which was possible, some patients would ultimately require surgery;

193. the type of surgery he was describing was the form of a fusion, which was aimed at preventing the slip of the L5 on S1 progressing;

194. if they could stop that progression, the plaintiff’s lower back pain may reduce;

195. they could try a lumbar brace, but his experience was that they were not very successful in improving spinal alignment and they were often poorly tolerated, especially by high-level athletes, and the literature did not suggest that the braces were very successful; and

196. in the first instance, he recommended a steroid injection and that he would arrange for it to be done by a radiologist under a local anaesthetic, and it was up to the plaintiff and her parents as to whether they wanted to proceed with that course.

197. The defendant said that the plaintiff and her parents agreed to the injections at the L5 pars defects, and that he told them that he planned to follow up in six months’ time after the injections. His plan was to allow time to determine whether the injections helped and to allow for a further lateral x-ray to be performed so that he could determine whether the spondylolisthesis was progressing.

198. The defendant disputed that, at the 12 February 1999 consultation, he said words to the effect of: “From the injury at school you have a fracture in your vertebrae and it is pressing on your spinal cord and causing the pain”, as the plaintiff set out in her Evidentiary Statement. He pointed to three reasons why he would not have said words to that effect:-

199. the absence of any handwritten note or indication in his letter to Dr Ling to suggest that he was made aware of any specific acute injury having occurred;

200. in relation to what the plaintiff’s x-rays revealed, the absence of any written record of anything to suggest that there was any evidence of a traumatic lesion; and

201. the statement insofar as it refers to the vertebrae pressing on the spinal cord is anatomically incorrect: at the L5/S1 level, there is no spinal cord, rather there is a cauda equina.

202. Dr Hillier also denied that he said words to the effect that the plaintiff had “broken her back”, as set out in Ms Leah’s statement. He stated that he did not form the view at any time that the plaintiff had broken her back.

203. The defendant believed that he next saw the plaintiff on 23 February 1999. His notes are set out in paragraph 22 above.

204. Dr Hillier stated that he does not now have a clear recollection of that consultation. He only recalled being somewhat concerned that the facet injections had not helped, and being hopeful that with further physiotherapy the plaintiff would improve. He stated that his plan was to reassess the plaintiff after she had had further physiotherapy.

205. The defendant stated that he next saw the plaintiff on 3 March 1999. His notes are set out at paragraph 23 above.

206. Dr Hillier said that he had not expected to see the plaintiff on 3 March 1999, given the plan was to wait until she had further physiotherapy. He recalled thinking at the time of the consultation that because the plaintiff had returned to see him so soon and other treatments had not helped, the plaintiff and her parents seemed to want some form of “more definitive treatment”. He had a recollection of the plaintiff or one of her parents saying something about a desire to get back to hockey soon. The defendant set out the view he formed at [68] of his Evidentiary Statement:-

“At the time, because of the plaintiff’s limited response to conservative treatment to date, I considered that the resolution of her pain and her effective return to both high level sport and school could be achieved by surgery in the form of an uninstrumented posterolateral spinal fusion.”

196. Dr Hillier said that he discussed the possibility of that surgery with the plaintiff and her parents at the consultation. In addition to using the models that he had in his rooms to explain how he would perform the surgery, in accordance with his standard practice:

197. He provided two information pamphlets; and

198. He discussed the procedure and the risks involved with the plaintiff and her parents.

199. One of the information pamphlets was created by him in 1984 and is entitled “Anterior Interbody Approach for Interbody Spinal Fusion with Cages or Disc Arthroplasty Surgery” (“Pamphlet 1”). The other pamphlet is entitled “360° Circumferential Fusion with Interbody & Posterolateral Segmental Fixation & Decompression” (“Pamphlet 2”). The defendant said that he would use them to demonstrate the position for the operation, explain how the surgery was done and to convey the risks of the surgery. Neither were specific to uninstrumented spinal fusion surgery.

200. Dr Hillier stated that at the 3 March 1999 consultation, he told the plaintiff and her parents that:-

201. because the plaintiff’s pain had not settled, he was concerned that the slip in her spine might progress over time;

202. the plaintiff had a slip of the L5 level over S1;

203. the plaintiff’s pain not settling could be an indication that the slip might in fact be progressing and would progress further;

204. in young people like the plaintiff, the slip could sometimes be difficult to halt;

205. the aim of the surgery was to halt the progress of the slip and help relieve aspects of the pain;

206. the operation would be uninstrumented because of the plaintiff’s age and the specific technique was known as the Leon Wiltse approach;

207. there were no guarantees that the operation would get rid of all of her pain, though it could on occasion;

208. the surgery would require a hospital admission and a general anaesthetic, and normally took approximately three hours to perform and sometimes more;

209. the plaintiff would need to stay in hospital for approximately four to five days and she would be encouraged to get out of bed and move around the day after the surgery;

210. they would need to meet his anaesthetist if the plaintiff was to have the surgery, and the anaesthetist would discuss with the plaintiff the particular risks of the anaesthetic;

211. after the surgery, the plaintiff would need to avoid strenuous loading of her spine for approximately three months, possibly more, and that would mean no sport for that period;

212. the plaintiff might not actually be able to return to high level sport after the surgery and if she could, it would be a great outcome, but there were no guarantees of such an outcome;

213. if the surgery was successful, success was typically 50% due to the surgery itself and 50% being dependent on the patient’s motivation and effort;

214. the plaintiff would be in a kneeling position during the surgery, explained by reference to Pamphlet 2;

215. the incision would be approximately six centimetres long and would be vertical;

216. Dr Hillier would lift the skin to display the muscles, and split them to expose the bone. He would then roughen the bone to get the blood to bubble like a lava flow, which would help to connect the transverse process to the body of the sacrum. He used models of the spine and pictures in the pamphlets to identify relevant parts of the spine;

217. the operation was done from behind and from the side, which was why it was called a posterolateral fusion;

218. he would do a midline exposure of the loose bone, which was sometimes called a rattler, and he would remove it;

219. he would remove the rattler because if it was left behind, it could cause irritation and require a further operation;

220. it was his routine practice to remove the rattler during posterolateral fusion operations;

221. because he was planning to perform an uninstrumented fusion, the plaintiff would need to wear a ladderback brace after the operation. The purpose of the brace was to prevent the plaintiff from overdoing things after the surgery and to remind her that she was not to return to sport. The brace would be fitted in hospital before the plaintiff was discharged;

222. the plaintiff and her parents should take the pamphlets home, read them and consider what was explained to them before making a decision about whether the plaintiff was to proceed to surgery;

223. there was no rush and they might want to discuss the operation with their general practitioner;

224. with back pain, the spine will self-stiffen over time and that can make the back less painful. If the plaintiff could wait for a couple of years and live with her back pain, and continue to attend physiotherapy when she needed it, she might find that the pain would reduce;

225. he used Pamphlet 2 to explain that he would take some bone from the pelvis and use it as a graft between the vertebrae to encourage growth of the bone between the vertebral bodies;

226. he used Pamphlet 2 to explain the risks of the surgery, explaining that it was a generally safe procedure but, like any surgery, there are associated risks, including damaged nerves, infection and bursitis; and

227. he would use techniques which would give the plaintiff the best chance of healing and forming good, strong bone but there was a chance of the union being delayed or of there being non-union, which might mean the plaintiff would need further surgery.

228. The defendant stated that at the end of that consultation, he left the plaintiff and her parents to consider how they wished to proceed. In accordance with his standard practice, he did not make a specific recommendation that the plaintiff should proceed with surgery.

229. Further, in accordance with his usual practice, Dr Hillier believes that he would have written to the plaintiff and her parents, as well as her referring general practitioner, outlining the possibility of the plaintiff undergoing an uninstrumented posterolateral fusion procedure and the risks involved.

230. Dr Hillier stated that either he or one of his staff must have been contacted by the plaintiff’s parents, who advised of their wish to proceed with the fusion surgery.

231. At [93] of his Evidentiary Statement, Dr Hillier addressed an extract from the plaintiff’s Evidentiary Statement (at [51]), where she claimed that the defendant said words to the effect of:

“You will need surgery to fix your back. You are my youngest patient. It is a cutting-edge procedure. It’s the best option for you. I will use part of your pelvis to fuse your spine which is a good thing because you are young and you will not have to have any foreign parts in your body. I understand that you wish to keep playing hockey, I have operated on quite well-known sports stars.”

203. Dr Hillier denied that he would have said that the plaintiff would need surgery to fix her back, because it was not his belief at the time that she needed surgery and he did not believe that the surgery would provide a fix for her back. He said that he would not have said that the plaintiff was his youngest patient because she was not. He had previously treated and operated on younger patients, particularly during his period as a consultant at the Adelaide Children’s Hospital between 1982 and 1989.

204. Dr Hillier said that he would not have used the words “cutting-edge procedure” because as at 1999, the procedure was well-recognised and widely performed. He stated that he has never used the term “cutting-edge procedure” in discussing surgery with a prospective patient. He also stated that he would not have said that the procedure was the best option for her. His view was that surgery was a good option. He may have said that he thought the surgery was the best chance for the plaintiff to get back to hockey and school.

205. Dr Hillier further denied that he told the plaintiff that it was a good thing that he was going to use bone from her pelvis for a graft during the surgery because she was young and would not have any foreign parts in her body. He also denied that he would have told the plaintiff that he had operated on quite well-known sports stars.

206. At [99]-[104] of his Evidentiary Statement, Dr Hillier addressed Ms Leah’s assertions in her statement that he said words to the effect that:-

207. “the problem is that [the plaintiff’s] L5 vertebra is slipping off her tail bone and it will fall off completely and cause her to lose height”;

208. “we can fix it with a fusion surgery where we take some bone from her hip and fuse her spine”;

209. “the vertebra that is slipping is rubbing on the spinal cord and that is what is causing the pain”;

210. “if we use a bone graft we do not have to put any metal in which is good because she is so young and she will heal fairly quick, it’s the best option for her”; and

211. “I have footballers from Melbourne come to see me and have me operate on them so I know about elite sports stars”

212. The defendant denied making any of those statements in the words set out above, principally because he had never held those beliefs.

213. Dr Hillier agreed that he performed surgery on the plaintiff on 11 March 1999. He recalled that it was a straightforward procedure and that he used the standard Wiltse approach as recommended on 3 March 1999 (see paragraph 196 above).

214. Dr Hillier said that while his initial plan had been to organise a spot lateral x-ray six months after initial review, that plan changed because the plaintiff’s pain increased despite non-surgical management and because she and her parents ultimately decided to proceed with surgery.

215. The defendant said that, following surgery, he would have ordered that the plaintiff be fitted with a ladder back brace by the hospital physiotherapist prior to discharge. With respect to the plaintiff’s statement that she was discharged in a wheelchair, the defendant said that he would not have permitted the plaintiff to be discharged before she was able to ambulate.

216. The defendant believed that he next saw the plaintiff on 14 April 1999. His notes are set out at paragraph 25 above.

217. Dr Hillier accepted that he could not clearly recall the detail of this consultation, but said that his notes reflected the plaintiff having informed him that she was coping very well and that she was not “keen” to wear the brace. The note suggested an awareness that the plaintiff did not intend to wear it, and his satisfaction that she did not require it. He said that he would have told the plaintiff that he would like to see her in four weeks and that she should have an x-ray of her spine done before then.

218. The defendant stated that he next saw the plaintiff on 12 May 1999. His notes are set out at paragraph 26 above.

219. On that date, he sent a letter to the plaintiff’s general practitioner which is extracted at paragraph 27 above.

220. Dr Hillier said that he discussed a return to sport with the plaintiff. The gist of what he told her was that while she could return to hockey, she should do it in stages, starting with training first and then progressing to competitive hockey. This was based on his handwritten notes and the letter of 12 May 1999 and his vague recollection of that consultation. He said that he decided to permit a graded return to sport because the plaintiff seemed to have recovered more quickly than he had expected. By recording in his notes that the plaintiff was fully active with a plus, he believes that he must have been satisfied based upon what the plaintiff told him and the movement she demonstrated, that she had good spinal movement.

221. Dr Hillier stated that he next saw the plaintiff on 7 July 1999. His notes are set out at paragraph 28 above.

222. The defendant said that these notes were based on the plaintiff’s report of her symptoms, and that it was not unusual to have some muscular tenderness at the posterior superior iliac spine in the paraspinal muscle attachment. This did not concern him in the plaintiff’s case, and he recommended that she apply some Voltaren.

223. Dr Hillier said that he next saw the plaintiff on 20 September 1999. His notes are set out at paragraph 30 above.

224. The defendant stated that by 20 September 1999, he was satisfied with the plaintiff’s progress. He said that she had described a very satisfactory recovery from surgery and no longer reported any symptoms. He interpreted her x-rays as showing that the bone graft had taken on the right and left sides so that there were mature bridges on each side. He discharged the plaintiff from his care with the plan that he would only see her again if she had a specific need.

225. The defendant next saw the plaintiff on 20 February 2019, almost 20 years later. He was provided with a letter of referral from the plaintiff’s general practitioner, Dr Allen, dated 6 February 2019. He also reviewed x-ray and MRI reports. He said that he considered that the investigations showed that the plaintiff’s posterolateral fusion looked to be still secure. However his impression was that she had tried to compensate for the acute inclination of the L5/S1 disc by slightly overextending on the L4/L5 joints above.

226. The plaintiff attended the defendant for treatment on 13 March, 11 April and 16 May 2019. There were further communications between the defendant and the plaintiff’s other treating practitioners. It is not necessary to set out the detail of these consultations and communications for the purposes of the plaintiff’s claim.

Statement dated 7 June 2024

222. In his Evidentiary Statement dated 7 June 2024, Dr Hillier commented on the plaintiff’s radiological films from 1999 which he was supplied after providing his first statement.

223. The defendant said that he could identify markings on the spot lateral x-ray, and that he was confident that those markings were made by him during the 12 February 1999 consultation. In accordance with his standard practice, he stated that he would have identified the following for the plaintiff and her parents:-

224. Using the numbers 4 and 5, he marked and pointed out the L4 and L5 disc levels on the vertebrae;

225. He made horizontal markings at the L5/S1 level to demonstrate and explain that the L5 vertebra was slightly forward on the sacrum;

226. He marked with horizontal lines, the upper and lower extremities of the gap which represented the pars defect, in order to identify it; and

227. He made vertical markings which showed the supraspinous ligaments which acted as a tether to the bone at the back, which had separated from the body of the L5 vertebra. He marked this as an aid to explaining where he believed her current pain was coming from.

228. Dr Hillier said that his current interpretation of the films was consistent with the conclusion reported in his letter to the plaintiff’s general practitioner Dr Ling on 12 February 1999 and he was confident that he had those films with him at the 12 February 1999 consultation.

229. The defendant said that he could identify markings on the plaintiff’s lumbosacral facet joint injection films which he was satisfied were made by him during the 23 February 1999 consultation with the plaintiff and her parents in accordance with his standard practice. He states that he would have made the markings to demonstrate that the injection was placed in the right part of the spine, specifically in the region of the pars defect.

230. Dr Hillier said that his current interpretation of the two films showing the plaintiff’s lumbosacral spine on 12 May 1999 is consistent with the conclusion which he recorded in his notes as follows:-

“Xrays show P/L [posterolateral] mass filling in

Still not fully sound on L [left]”

227. With respect to the four films showing the plaintiff’s lumbosacral spine on 20 September 1999, Dr Hillier said that his current interpretation is consistent with the conclusion recorded in his clinical notes of the consultation with the plaintiff and her parents on 20 September 1999. In particular, those notes record:-

“[a] posterolateral bridge has developed. She is very comfortable + untroubled”

228. Dr Hillier’s cross-examination was almost entirely consistent with his two statements.

The Expert Evidence

229. At the outset, it should be noted that the preparation and hearing of this case was complicated by the multiplicity of experts who gave evidence. The multiplicity of experts necessitated multiple reply reports, several joint conferences involving many experts and numerous experts participating in concurrent evidence. Parties should limit themselves to one expert per discipline as a general rule. Furthermore, where damages are not seriously in dispute, parties should endeavour to appoint a single expert. This would significantly reduce cost, and save time.

Plaintiff’s Experts

Dr Geoffrey Miller, general surgeon

230. Dr Miller is a general surgeon who provided reports dated 5 June 2021 and 18 June 2023. He also provided comments in the joint liability report dated 14 May 2024, and participated in the joint expert conference held on 13 June 2024. His evidence was excluded so that his views do not affect the outcome of any part of the plaintiff’s claim.

231. Dr Miller has no qualifications or experience as an orthopaedic surgeon or as a spinal surgeon and his views were irrelevant on the questions of breach of duty and causation. His expertise as a general surgeon had no bearing whatsoever on the matters in dispute in this case. He has no specialised knowledge based on his training, study or experience which would entitle him to express any relevant opinion: s 79 of the Evidence Act.

Dr Alan Hopcroft, orthopaedic surgeon

232. Dr Hopcroft is an orthopaedic surgeon who graduated from the University of Sydney in 1968. After completing a residency and working as a Registrar in Surgery, he was appointed Consultant Surgeon to the Manning River District Hospital in 1974. In 1981, he was appointed Consultant Orthopaedic Surgeon and he retained that position until 2010. His major practice has been in orthopaedic trauma surgery and he has maintained an interest in general surgery.

233. In his first report dated 27 April 2020, Dr Hopcroft stated that undertaking a posterior onlay bone grafting for an L5/S1 first degree spondylolisthesis in a child aged 14 was “a significant misjudgement and a competent orthopaedic surgeon would not have done so”, and that the chance of successful fusion in the circumstances was “basically not possible”. His view was that it would have been far better to treat the pain by way of a conservative exercise program. In young adults, grade 3 is the only classification where (instrumented) fusion would be considered.

234. Dr Hopcroft provided two further reports dated 12 January 2022 and 17 May 2022. In the 12 January 2022 report, Dr Hopcroft noted that following a review of further documentation his view remained unchanged. In his report dated 17 May 2022, Dr Hopcroft said that in his view damage to the plaintiff’s L5/S1 intervertebral disc level, to which the School Incident and the surgery contributed, aggravated changes in the left L4/5 facet joint.

Dr Armin Drnda, neurosurgeon

235. Dr Drnda is a neurosurgeon who graduated from the University of Sarajevo, Bosnia-Herzegovina in 1981. He trained and practised as a neurosurgeon in Bosnia-Herzegovina, and then re-trained after moving to Australia in about 1997. He undertook a residency from 24 June 1997 to 1 February 1998, was an unaccredited registrar in neurosurgery from 2 February 1998 to 31 January 1999 and then an accredited registrar in neurosurgery from 1 February 1999 to 4 February 2001. He has been practising as a consultant neurosurgeon in Australia from February 2001.

236. In his report dated 2 December 2020, Dr Drnda said that the plaintiff was not a reasonable candidate for the surgery, as she was just under 15 years old. He was of the view that as the plaintiff did not have radiculopathy pain or a neurological deficit, there was “no indication for any kind of surgery in this situation”. He stated that a competent spinal surgeon would have referred the plaintiff for a more conservative exercise program, and instructed her to avoid strenuous activities. Dr Drnda indicated that surgery was “sometimes required in cases of grade 3 spondylolisthesis… with neurological deficit and is performed with instrumentation”. In his opinion, the surgery was “very likely” or “doomed” to fail.

237. With respect to causation, Dr Drnda stated:

“In my opinion, if [the plaintiff] had been treated conservatively in March 1999, it is more likely than not that she would have had a better outcome. … Attempted onlay fusion likely damaged the left L4/5 facet, which could be a contributor to the current low back pain. … [Appropriate structure non-operative treatment] would have helped her manage low back issues successfully in the future.”

238. Dr Drnda provided a further report dated 2 November 2021 in which he confirmed his opinions following review of further documentation.

Dr Vaidya Bala, rehabilitation physician

239. Dr Bala is a consultant physician in rehabilitation medicine who graduated from a university in Chennai, India in 1992. He commenced his specialist training program in Australia in 1998 and completed his fellowship in rehabilitation medicine in 2004. His evidence was relevant to damages only.

240. In his report dated 15 May 2021, Dr Bala observed that the plaintiff independently performed light domestic tasks, but required assistance with heavy domestic tasks and “complex community activities of daily living” which require repetitive movements. He did not believe that she required assistance from an external support agency. Dr Bala noted that the plaintiff was “limited to pursue her avocational interests” like camping and fishing, and that she reported social isolation due to the pain which limited her social activities. With respect to the plaintiff’s capacity for work, Dr Bala stated that the restrictions in her movement have resulted in “modified capacity and alteration with her work” such that she does not have capacity to return to any kind of work on a fulltime basis.

241. Dr Bala recommended that the plaintiff be assessed by a pain physician and be referred to a multidisciplinary pain management programme involving a physiotherapist and occupational therapist. He estimated the cost of such a programme to be between $6,000.00 and $10,000.00 for 6-8 weeks, and said that the programme could be repeated “perhaps every 3-4 years, as required, to reinforce education on spinal reconditioning”. He observed that the nature and frequency of consultations with a pain physician would vary depending upon the plaintiff’s presentation. Initial and review consultations cost approximately $275-$350 and $170-$250 respectively.

242. In his second report dated 6 March 2024, Dr Bala’s opinions were unchanged. He added that it was unlikely that the plaintiff would ever improve to a point that she would be able to perform all domestic tasks independently. He updated the estimated cost of treatment previously recommended by him, stating that the cost of initial consultation and review with a pain physician would be in the range of $350-450 and $250-$350 respectively, and the cost of a pain management programme for 10-12 weeks would be $10,000.00-$12,000.00. I note that in his first report, Dr Bala recommended a programme for 6-8 weeks. No reason was given for the extension of the programme. In this report, he added that it was “also possible that [the plaintiff] may require a spinal cord stimulator as a last resort if her current pain condition gets gradually worse over the next 5-10 years”, the cost of which he estimated to be between $35,000.00-$40,000.00.

Dr Paul Chou, radiologist

243. Dr Chou is a senior consultant radiologist with 16 years of experience in radiology.

244. In Dr Chou’s opinion, the pre-operative scans demonstrate that there was bilateral L5 pars defect with minor grade 1 anterior spondylolisthesis, with no secondary L5/S1 foraminal narrowing. With respect to the 2019 scans, he stated that there was mild-moderate left L4/L5 facet arthrosis with active inflammation, and inflammation in the region of left L5 pars defect. In his view, the bilateral L5 pars defects persisted and anterior grade 1 spondylolisthesis of L5 on S1 was unchanged. He noted that multiple corticated bone fragments posterolateral to the L5 pars defects on both sides were from the surgery. In his opinion, the post-operative scans did not show any correction of the curvature of the plaintiff’s spine.

Professor Anthony Costello, urologist

245. Professor Costello is a urologist who has specialised in urological surgery since 1980. He provided a report dated 19 December 2022 which related to the plaintiff’s alleged urological symptoms.

246. Professor Costello stated his belief that “the surgery… has damaged the autonomic nerve supply to the bladder causing subsequent urinary urgency and stress urinary incontinence”, meaning an “injury to the hypogastric nerves of the sympathetic chain and the parasympathetic contributions from the pelvic autonomic nervous plexus.” Professor Costello noted that the incontinence may have been exacerbated by the plaintiff’s four childbirth episodes. In his view, over time, the stress urinary incontinence may worsen and he recommended that the plaintiff seek the advice of an expert surgeon in urinary incontinence.

Professor Hans Peter Dietz, obstetrician and urogynaecologist

247. Professor Dietz provided a report dated 9 May 2024 after the plaintiff presented to his rooms on that date for urodynamic testing and a pelvic floor assessment.

248. Professor Dietz concluded that the plaintiff has moderate urodynamic stress incontinence. He stated that there was no evidence of a neuropathic bladder because sensation, compliance, capacity and voiding were all normal or virtually normal. There was also no evidence of impairment of motor function in that both urethra and levator ani were in good shape, without evidence of atrophy and without fasciculation of the levator. Professor Dietz recommended pelvic floor muscle exercises and bladder retraining, preferably with a trained continence therapist. He recommended oral or transdermal anticholinergics, Botox intravesical injections and an anti-incontinence procedure as potential future treatments. Professor Dietz could find no anatomical explanation for the plaintiff’s symptoms of obstructed defecation, and he believed that the plaintiff might benefit from an assessment from a gastroenterologist.

Mr Marcus Smith, physiotherapist

249. Mr Smith is a physiotherapist who has been practising since 1997. He assessed the plaintiff on 1 June 2021 and 28 February 2024, and provided reports dated 2 June 2021 and 17 March 2024 following those assessments.

250. In his 2 June 2021 report, Mr Smith recorded his findings on examination from which he inferred that the plaintiff had some significant impairment generally because her movements were restricted and/or caused pain.

251. Mr Smith observed that core stability is “well-recognised” and was commonly offered either in-class or privately in 1999. In his opinion, the plaintiff would have benefited from supervised and instructed weekly hydrotherapy sessions, and he set out the benefits of those treatments. He recorded that the plaintiff told him that these treatments were never suggested to her or her parents.

252. Specifically, he recommended:-

253. weekly physiotherapy for one year and then a minimum of once per month thereafter;

254. a continence and pelvic floor assessment by a specialist women’s health physiotherapist;

255. Reformer Pilates under the instruction of a physiotherapist, for which he also recommended the plaintiff purchase a Reformer Pilates machine;

256. Supervised and instructed weekly hydrotherapy sessions;

257. With respect to hydrotherapy, the purchase of an underwater balance beam, two push bells and an aquatic balance board; and

258. An electric bed with whole-body vibration capabilities.

259. Mr Smith provided detail as to the costs of those treatments and items.

260. In his 17 March 2024 report, Mr Smith recorded a deterioration in the plaintiff’s restriction of movement and pain. He indicated that she was having increasing difficulty in completing tasks for her young children due to her back pain and function.

Defendant’s Experts

Professor Noel Dan, neurosurgeon

255. Professor Dan is a consultant neurosurgeon who graduated from the University of Sydney in 1964. He completed his residency in 1966 and was a registrar until 1969, and a neurosurgery registrar thereafter until 1973. He was a practising neurosurgeon at Mater Misericordiae Hospital from 1971 to 2010, Concord Hospital from 1972 to 2008, St. Margaret’s Children’s Hospital from 1971 to 1979, St. Margaret’s Private Hospital from 1983 to 1998, The Hills Private Hospital from 1981 to 2011, St Vincent’s Private Hospital from 1974 to date and a consultant neurosurgeon at St. Margaret’s Maternity Hospital from 1975 to 1993 and at the Metropolitan Eye Hospital from 1994 to 1998. He has had a number of other appointments as a senior neurosurgeon. His evidence was relevant to the question of breach of duty and s 5O of the Act.

256. Professor Dan provided a report dated 21 December 2021. In that report, he observed that indications and contraindications for the surgery in the plaintiff’s case were relative. In his opinion, as the plaintiff “was suffering significant symptoms which interfered with her activities including her sporting activities it was reasonable to consider surgery for amelioration of them.” Professor Dan’s emphasis on the plaintiff’s desire to return to hockey being a relevant factor in the decision to advise surgery as an option was also a consistent theme of his evidence at the trial. In his opinion, there were not any clear contraindications for surgery. Professor Dan also stated his belief that the majority of surgeons would not consider it necessary to obtain a second opinion unless requested to do so by the plaintiff or her parents. With respect to the plaintiff’s age, he said that it was typical for surgery to become not only necessary but often “quite significantly important to undertake” at that age.

257. The only particular of negligence which Professor Dan did not expressly reject was that the defendant did not properly or adequately consider that the plaintiff had no neurological deficit prior to the surgery. In that regard, he stated that “it could be argued that the appropriate measure was to stabilise the spine before neurological deficit developed.” However, later in his report he states that one of the points of operating early is to avoid neurological deficit.

258. With respect to causation, Dr Dan stated that it was clear that the degenerative changes in the facet joint were related to ongoing activities. The surgery was therefore incidental rather than causative.

259. Professor Dan provided a further report dated 13 July 2022. In that report, Professor Dan expressed the view that at 12 February 1999, the plaintiff had a first-degree lumbosacral spondylolisthesis which was congenital, as demonstrated by the developmental variant of pars defects. He said that a suitable period of conservative management is defined less by time than by the presence of symptoms. The time for conservative management depends on the individual patient, their responses and ultimately their preferences for treatment. Professor Dan believed that the defendant acted reasonably in providing a period of conservative management of the plaintiff, noting that she had persevered with conservative measures prior to seeing the defendant, and because she and her parents wished to proceed to surgery. In his opinion, the recommendation of surgery in the form of uninstrumented posterolateral spinal fusion on 3 March 1999 was reasonable at that time, notwithstanding the plaintiff’s age. The radiology images obtained by the defendant were “standard in this situation”.

260. With respect to the risks about which a competent orthopaedic surgeon would warn his patient in early 1999, Dr Dan stated that they were the general risks of anaesthetic complications, haemorrhage or infection and the specific risk of the failure of the fusion being achieved. Other risks such as cerebrospinal fluid leakage or neural damage were very low in the circumstances.

261. Professor Dan considered that removal of the loose lamina at L5 was consistent with professional standards at the time of the surgery, although it was not a universal practice.

262. In Professor Dan’s opinion, there was a risk, in the presence of fusion, that adjacent levels would deteriorate, but that risk is well accepted in the context of spondylolisthesis and is not regarded as a contraindication to surgery. He repeated his observations in his earlier report that the plaintiff’s current L4/5 symptoms were not caused by the surgery.

263. Professor Dan agreed with Dr Hopcroft that solid fusion was not achieved. However, he was firmly of the view that the defendant ultimately acted in a manner which was widely accepted at the time by peer professional opinion as competent professional practice.

264. In his third report dated 22 August 2022, Professor Dan clarified his view with respect to the duration of conservative management. He said:-

“There is no absolute time which can be applied. A standard approach is to monitor the displacement and if it is increasing to then consider surgery. The alternative depends on the preference of the individual which usually means the patient’s parents because of the tendency to present typically in early adolescence. It is clear, therefore, that there is no set period of time for conservative management but rather it depends on the patient’s preference and progression in the changes. In all cases the period of conservative management depends on the patient’s responses and their preferences regarding treatment.”

265. Professor Dan affirmed his views expressed in earlier reports. With respect to risk warnings, he noted additional potential risks of wound disruption and failure to achieve surgical aims (applicable to all surgery), and specific to this surgery, the risk of the persistence of back symptoms following the procedure. Professor Dan added, that in relation to the L4/5 symptoms, that as the fusion failed to take, there were no direct forces impacting upon that level, and that ongoing activities were at least as likely, and he believed more likely, to contribute to changes at that level.

266. In his next report dated 14 June 2024 which he provided following review of the additional radiology from 1999, Professor Dan stated that he disagreed with Dr Hopcroft’s comments in relation to the spondylolisthesis having increased from 5mm to 8mm in the 20-year interval. He believed that any difference was marginal and within the range of variation caused by differences in positioning during the investigations themselves. The now available 1999 radiology did not change his views regarding the back pain following the surgery. He noted that in the absence of a fusion, degeneration at L4/5 could not be associated with the surgery.

Dr Andrew Kam, neurosurgeon

267. Dr Andrew Kam is a neurosurgeon who completed his specialist neurosurgical training in 1999. He has been a practising consultant neurosurgeon at various hospitals since that time, almost exclusively focused upon the spine. Dr Kam’s evidence was admitted on the question of causation only.

268. In his report dated 7 March 2024, Dr Kam provided a detailed analysis of the plaintiff’s history and an explanation as to why the plaintiff’s current condition could not be related to any of the particulars of negligence alleged against the defendant. In particular, he noted the lack of symptomatology and the plaintiff’s activity in the years following the surgery:-

“b. … Based on [the plaintiff’s history], the plaintiff after having undergone a non-instrumented posterolateral fusion with bone graft in the posterolateral gutter had recovered with no complications following surgery and was able to return to full physical activity including playing competitive hockey. Based on this documentation, there was no clinical picture of any adverse result from the surgery performed. In particular, the patient had the ability to return to playing field hockey without complaining of any increased pain. In the documentation of the plaintiff’s GP, Dr Andrew Milliken, on 9/9/99, when she had presented with headaches, she was seen to have some tenderness in the upper back and lower neck but no lower extremity complaints.

c. In light of the type of operation [the defendant] performed, if there were any complications from surgery or failure of the non-instrumented fusion that resulted in an adverse event, the plaintiff could have and would have developed increasing back pain, worse than the level of pain she had pre-surgery in 1999. If an adverse event had occurred during surgery and neural structures were affected, the plaintiff would have suffered increased lower extremity symptoms in the form of altered sensation, pain and potentially neurological dysfunction in the form of weakness.

In terms of bony injury, in particular to the joint above the L5/S1 fusion (ie. L4/5), the plaintiff would have suffered ongoing back pain from the day after surgery and beyond. This was not the case with the plaintiff.

Based on the documentation by Dr Milliken and Dr Allen, there was no such report from 1999 until 14/1/2016 where there was some back pain associated with a feeling of being unwell, bloating and increased somnolence.

d. In terms of the plaintiff’s day to day activities, completing school, participation in competitive sport, child bearing, household activities and professional pursuits, if the surgery had failed and had a negative consequence, all the above activities would have been significantly affected, impaired and potentially unachievable. There would also have been an increasing amount of pain requiring increasing amounts of pain management (ie. medications). There is no such documentation of difficulties with competitive sport, child bearing and day to day household activities.

e. Reviewing the plaintiff’s records from 1999 to 2019, there was a paucity of reports related to back pain until 2016 to Dr Allen on 14/1/16 recorded with the plaintiff feeling unwell, feeling tired with increased somnolence with intermittent bloating and lower back pain. Between 2016 and 2018, the next entry in the medical records was on 30/4/18 when Dr Allen documented the plaintiff having intermittent left lower back pain/discomfort with radiation into her lower abdomen the day before.

The next entry that had any comment of back pain was on 22/7/19 where Dr Allen noted that the plaintiff had ongoing back pain and numbness involving the left lateral thigh down to the knee for 2 years, the onset being when the plaintiff was pregnant and this did not resolve. The plaintiff was seen by a physiotherapist, Shane Robertson. X-rays were performed and the report suggested “bone graft deterioration”.

With the above finding, Dr Allen was prompted to refer the plaintiff back to [the defendant] and a referral letter was generated on 6/2/19.

Based on the above, it appears that the onset of symptoms according to Dr Gaini Allen in her documentation of 22/1/19 was that the ongoing back pain and numbness involving her left lower extremity may have started in 2017 while the plaintiff was pregnant. If the back pain was related to a “failed surgery” of 1999, the patient would have experienced symptoms of worsening back pain within the first 1-2 years following the surgery. The plaintiff has no documentation of lower back pain and appears to be free of pain until the period between 2017 to 2019.

f. It is my opinion that the nature and severity of the ongoing lower back pain that the plaintiff is currently reporting and experienced, cannot be related to an operation performed in 1999 as more than 18 years had passed before the pregnancy of 2017 when the onset of back pain started according to the documentation of Dr Allen.”

269. Dr Kam explained why, in his view, the presence of facet joint arthropathy was also unrelated to the surgery and treatment by the defendant:-

“g. The symptoms of back pain that the plaintiff experienced from 2017 onwards is not related to the outcome of the surgery performed by Dr Hillier in March 1999. The presence of facet joint arthropathy at the L4/5 level, adjacent to the surgery if it is the cause of the pain, is not due to any direct injury as a result of the operation performed in 1999 as the facet joint pain would have been present straight away. After 18 years following the 1999 surgery, any facet joint arthropathy could be part of the natural degenerative process of the human body, particularly in a person who has participated in competitive sports followed by multiple pregnancies and a busy home and business life. I am of the opinion that the surgery of 1999 did not directly or indirectly cause a unilateral (left side only) L4/5 facet joint arthropathy. Adjacent level degeneration from previous spinal fusion is a known long term sequelae, but this is usually related to adjacent anterior column degeneration. As the plaintiff’s fusion was not completely formed, the adjacent joints are less likely to be over-stressed to a point of accelerated degeneration. I am of the opinion that the left L4-5 facet degeneration is unlikely to be the result of the posterolateral fusion of 1999.”

270. Finally, Dr Kam noted the following with respect to the plaintiff’s underlying spondylolisthesis:-

“h. The degree of spondylolisthesis has not significantly progressed from 1999 to 2019. It remains a grade 1 spondylolisthesis. Because of the lack of progression of the spondylolisthesis and the paucity of pain from 1999 to 2017, the symptoms of ongoing back pain that were documented from 2017 onwards is unlikely to be related to the spondylolisthesis that had not deteriorated. The symptoms that she has during this period from 2017 onwards is not related to any failure of bone fusion related to the surgery performed by Dr Hillier in March 1999.”

271. Dr Kam provided a further report dated 12 June 2024, following the first joint conference and joint expert liability report dated 14 May 2024. In that report, he disagreed with Dr Hopcroft about whether the plaintiff had a significant change in the degree of spondylolisthesis. Dr Hopcroft’s opinion is set out further below. However I note Dr Kam’s comments on this issue in his report:-

“Comparing the 1999 images… and comparing them with the 2019 images… I do not see any significant change in the degree of spondylolisthesis. The images from 1999 and 2019 are very similar in configuration, and there has been no progression of the slip in 20 years.

The increased slip from 5mm to 8mm that Dr Hopcroft was pointing out was comparing an erect/standing Xray to a supine/lying down MRI scan which will give the discrepancy in measurements.

Comparing the standing Xray of 11/01/2019 to the standing Xray of 04/02/1999, 12/05/1999 and 20/09/1999, I see no real difference in the degree of spondylolisthesis. There is NO 50% increase over the time period from 1999 to 2019.” [emphasis added]

272. With respect to the source of the pain, he stated, in that report:-

“If the L5-S1 level is implicated, why after 18 years, has the L5-S1 non-progressive spondylolisthesis started to cause mechanical back pain? I am unable to give you a definitive reason for this. There has been no confirmatory test to support this conclusion. We can only speculate that the L5-S1 could be the site of pain generation.

If the L4-5 level is implicated, only the left hypertrophic (overgrown) L4-5 facet joint seen on the 2019 Spect-CT images, is positive on bone scan. The Xray images of 2019 did not show any obvious left or right L4-5 facet abnormality… We can only speculate that the L4-5 could be a site of pain generation.”

Dr Seamus Dalton, consultant physician in rehabilitation and pain medicine

273. Dr Dalton assessed the plaintiff on 26 July 2022 and 11 July 2023, and reported on 31 October 2022, 20 October 2023 and 5 April 2024. His opinion was admitted on causation as well as damages. I allowed his evidence to be admitted on the question of causation because of his specialty in spine disorders, his clinical work involving the diagnosis and treatment of patients with back pain and his particular specialty in the management of lumbar spine pars stress fractures and spondylolisthesis (see T1161-1162), the precise condition with which this case is concerned. He has a particular interest in the management of adolescents with these conditions and is frequently asked to provide an opinion as to whether or not surgery is indicated.

274. In his first report dated 31 October 2022, Dr Dalton provided the following summary of his clinical findings:-

“My assessment was that the plaintiff has a degree of ligamentous laxity. She clearly stood with an hyperlordotic posture. Core stability was very poor, particularly in sitting. There was no sign of radiculopathy or any neurological impairment other than some sensory impairment down the lateral thigh which the plaintiff told me developed during her third pregnancy. There were no symptoms or signs of radiculopathy or neurogenic claudication. She did not demonstrate any guarding, paraspinal spasm with the only discomfort being in full extension. The most significant finding was her swayback posture and very poor core stability. She displayed no pain or illness behaviour during the assessment. She showed no signs of distress, presented her history in a clear and concise fashion and the symptoms that she described to me were, in my opinion, consistent with her clinical presentation.”

275. With respect to the plaintiff’s treating medical records, Dr Dalton said the following:-

“I have reviewed the clinical records of Albury Central Medical Clinic which indicate that the plaintiff first presented complaining of backache which was gradually worsening on 6 March 1998. She was not seen between September 1999 and October 2004 when she expressed concern about a swelling on the right anterior neck. She was next seen on 9 September 2008 when she was reporting sharp pain in the right iliac fossa of recent onset and the next consultation was on 14 January 2016 when she was seen by Dr Allen when she presented with a history of general somnolescence, feeling unwell and some post-coital spotting. The next reference to back pain was when she was seen by Dr Allen on 30 April 2018 and she was reporting some lower back pain and discomfort with radiation to her lower abdomen. She was then seen in July of that year regarding mental health issues and was referred for counselling and was prescribed Citalopram.

….

The history provided by the plaintiff is consistent with my review of the contemporaneous medical records which demonstrate that the plaintiff initially presented to [the defendant] in 1999 with a history of worsening lumbar pain which had not settled with physiotherapy. Investigation at that time revealed bilateral L5 pars defects with a Grade 1 L5/S1 spondylotic spondylolisthesis and [the defendant] subsequently performed a non-instrumental posterolateral fusion. Medical records and the history provided by the plaintiff clearly show that she recovered well from the surgery and indeed resumed all of her previous activities. There was marked symptomatic improvement to the extent that she was able to resume playing hockey and play at a representative level. There is no indication that she suffered any complications as a result of her surgery.

….

There are no recent records to indicate that the plaintiff has required any ongoing treatment other than occasional visits to the physiotherapist, although treatment has also been directed to her stiff thoracic spine and other sites of pain.”

276. Dr Dalton observed that his summary of the medical records as set out above, and the history provided to him, were inconsistent with Dr Hopcroft’s description of the plaintiff’s symptoms. He disagreed with Dr Hopcroft’s attribution of the plaintiff’s symptoms to the surgery, and said that Dr Hopcroft did not appear to consider the other potential causes which Dr Dalton had outlined in his report.

277. With respect to the report of Dr Drnda dated 2 December 2020, Dr Dalton stated that Dr Drnda did not comment on the extent to which the plaintiff would likely have experienced ongoing back pain due to the natural history of an isthmic spondylolisthesis, which is frequently associated with degenerative changes and facet joint arthritis at the adjacent L4/5 level. Neither did he comment on the ongoing back pain being a manifestation of pre-morbid ligamentous laxity, lack of core stability and deconditioning which had been worsened by the plaintiff’s multiple pregnancies and failure to maintain or undertake a proper core stability and lumbar strengthening exercise programme. In his view, the “current scenario is similar to what would have been the case had she been treated non-operatively in the first place regardless of whether her current symptoms are in any way related to segmental instability at the operated level.”

278. Dr Dalton specifically commented on the report of Mr Marcus Smith dated 2 June 2021. In particular, his view from a treatment perspective, based on the plaintiff’s current condition, was that Mr Smith’s recommendations for physiotherapy, hydrotherapy, Pilates and equipment were “excessive” and “remarkable to say the least”. He did not support those recommendations as requirements as a result of complications arising from the surgery. He observed that Mr Smith did not consider the extent to which the plaintiff’s current complaints were unrelated to the surgery.

279. Dr Dalton also disagreed with findings in Dr Vaidya Bala’s report dated 15 May 2021. He stated that the plaintiff does not require referral to a multidisciplinary pain management programme, as she did not demonstrate any sign of pain behaviour or adjustment issues. He repeated earlier observations with respect to causation, and said that Dr Bala’s assessment of the plaintiff’s capacity for work and requirement for domestic care was pessimistic and does not take into account potential benefit from a targeted exercise rehabilitation programme.

280. He summarised his comments in relation to the medicolegal reports (excluding occupational therapy) as follows:-

“Many of these reports appear to be largely based on the assumption that the surgery undertaken by [the defendant] was not warranted. Prof Dan has commented on this in his report. The allegations of complications arising from that surgery are not, in my opinion, supported by the medical evidence. The development of facet joint arthropathy at the L4/5 level is commonly associated with spondylolisthesis and degenerative disc disease at the L5/S1 level with or without a spondylolisthesis. There is no evidence that the changes at L4/5 were attributable to the surgery performed by [the defendant].

Many of these reports appear to assume that the plaintiff’s symptoms would have resolved with a comprehensive conservative treatment programme. In my opinion that is an assumption which is not supported by the medical evidence and is a matter of speculation. The other issue which is very evident is that the plaintiff recovered from her surgery to the extent that she was able to return to sport with a reduction in pain and it was only some years later that she started to experience an increase in pain, particularly after several pregnancies. The plaintiff’s experts do not appear to have considered the extent to which any patient with an underlying L5/S1 spondylolisthesis with associated degenerative change at the L4/5 level is likely to experience an increase in back pain and related symptoms during pregnancy, particularly in a patient who has poor postural control, a degree of ligamentous laxity and poor core stability, all of which are clearly present in this case. Careful review of the physiotherapy records clearly demonstrates that Mrs Briggs has experienced a range of musculoskeletal spinal problems commonly seen in patients with ligamentous laxity, poor core stability and poor postural control. She has received treatment directed to her cervical and thoracic spine, shoulder and pelvic girdle.

The other issue that has not been addressed by the plaintiff’s experts is the extent to which the plaintiff’s failure to undertake a core stability exercise programme has been a major reason why her back pain deteriorated in 2019 and even to this day that has not been addressed. In my opinion there has not been adequate consideration by some experts that the plaintiff’s current condition may have been no different had she been treated conservatively. It is also not clear whether the experts believe that the uninstrumented fusion performed by [the defendant] has failed to the extent that the plaintiff now has symptoms attributable to instability at the lumbosacral segment is functionally stable and the patient is now getting mechanical back pain from the L4/5 level or other sites.”

281. Dr Dalton summarised his opinion at the end of his report:-

“In my opinion the plaintiff’s current back pain is consistent with her L5/S1 spondylolisthesis and previous surgery. The results of subsequent investigations do not suggest that the spondylolisthesis is unstable and it seems more likely that her pain is referred from the L4/5 level, although in these cases it is often difficult to determine this clinically. This lady would need to undergo a series of diagnostic medial branch blocks and other procedures to try and identify the source of nociception, although these patients often have multiple sites of pain, particularly when there is a significant muscular component which I believe is the case here.

In my opinion [the plaintiff’s] left posterior thigh pain and tightness is somatic and non-radicular. Examination at this assessment identified that her hamstrings were tight and facilitated and she definitely had weakness and poor activation of her gluteals which would lead to overactivity in the left hamstrings. She also demonstrated very poor lumbopelvic control, particularly on the left side and this pattern of unilateral buttock and posterior thigh pain is common in these patients and often reflects biomechanical issues rather than simply the underlying spinal pathology.

It is also my opinion that patients with an isthmic spondylolisthesis which becomes symptomatic in adolescence are more likely than not to develop chronic lumbar pain and a reduced tolerance of stationary postures and in the female population symptoms frequently increase when they become more sedentary and particularly during and after pregnancy due to the increased demands of child care, a loss of core strength and lumbopelvic control as a result of pregnancy, and simple issues such as time constraints and failure to commit to a core stability exercise programme. Other factors such as sagittal balance, postural alignment, a tendency to fall into an anterior pelvic tilt and premorbid ligamentous laxity are all contributing factors. In [the plaintiff’s] case she has a number of biomechanical issues, including her posture, ligamentous laxity, poor lumbopelvic control and core stability, all of which are clearly contributing to her back pain regardless of the underlying pathology. These are all issues that can be addressed with a comprehensive and targeted exercise programme which she has not undertaken to date.

It is also my view that all of these factors would have arisen regardless of whether she underwent surgery with [the defendant] in 1999 as this clinical picture is seen in patients with L5/S1 spondylolisthesis treated conservatively or surgically, particularly given that many of these patients develop adjacent segment disease and facet joint arthropathy at the L4/5 level which over time often becomes more symptomatic than the L5/S1 spondylolisthesis.

Therefore, I find no evidence that [the plaintiff’s] current symptoms can be directly attributed to complications arising from surgery performed by [the defendant]. Her recovery following the surgery and resumption of high level sport indicates that she obtained significant symptom relief. It would be unrealistic to expect her to have complete eradication of her back pain and no ongoing problems. It is also evident that the increase in symptoms coincided with a change in her lifestyle, cessation of sport and the subsequent four pregnancies. The increase in her back pain reflects all of these factors, particularly the increase in symptoms in 2019. The underlying pathology is a combination of the previous L5/S1 spondylolisthesis and subsequent surgery, as well as the development of progressive degenerative change and possibly mechanical dysfunction at the L4/5 level. However, these problems would have arisen in any event given the natural history of adolescent spondylolisthesis which becomes symptomatic.

I am firmly of the view that [the plaintiff’s] back pain and increasing symptoms in 2019 is primarily due to the loss of core strength and deconditioning and the increased functional demands following four pregnancies. It is unfortunate that she has relied on occasional visits for physiotherapy and passive treatment measures such as heat packs and medication when the most pressing need was for her to undertake a targeted core stability and gluteal strengthening exercise programme.”

282. Dr Dalton’s recommendation for treatment was, as set out extensively in other parts of his report, for the plaintiff to commit to a core stability exercise programme. In his opinion, her need for this treatment would have arisen regardless of the surgery, based on the improvement she demonstrated following her surgery, the natural history of symptomatic spondylolisthesis in adolescents, particularly in sporting individuals who then cease sport and go through several pregnancies. Dr Dalton stated that his opinion was based on his extensive clinical experience.

283. With respect to the plaintiff’s alleged need for domestic and household assistance, Dr Dalton advised against the provision of equipment which would lead to further inactivity. He acknowledged that she required assistance with heavier household tasks, gardening and outdoor maintenance.

284. Dr Dalton stated that the plaintiff’s prognosis was uncertain, but that he was more optimistic than many of the other experts. His view was that it was not possible to make recommendations regarding a future prognosis until the plaintiff had committed to a core strengthening programme for at least 6-12 months. The cost would involve six individual sessions with a physiotherapist, possibly an ultrasound assessment for educational purposes and weekly pilates for at least six months. Over the counter medication would be sufficient to assist with the plaintiff’s pain. He believed that the plaintiff’s prognosis was much the same as it would have been if she had not undergone surgery performed by the defendant.

285. Dr Dalton re-assessed the plaintiff on 11 July 2023 and provided a further report dated 20 October 2023. He recorded no significant change in her symptoms and his views were essentially unchanged.

286. Dr Dalton provided a further report dated 5 April 2024. In that report, he outlined his extensive experience in the review and treatment of patients such as the plaintiff, which extends over 45 years. He said that if the surgery had failed, he would have expected the plaintiff to have had ongoing back pain and symptoms similar to those she had experienced pre-operatively which is not what happened in the plaintiff’s case.

Dr Anthony Kam, radiologist

287. Dr Anthony Kam provided a report dated 7 June 2024 which sets out his findings based on radiology as follows:-

288. X-ray thoracic and lumbar spine dated 4 February 1999:-

“Frontal and lateral views of the spine demonstrated gentle right convex spinal asymmetry, apex centred at the L3 level. Cobb angle measures under 10 degrees.”

2. X-ray lumbar spine facet joint injection dated 18 February 1999:-

“… The images show percutaneous needles in position in the region of the L5 pars inter-articularis. Bilateral pars interarticularis defects are seen at the L5 level.”

3. X-ray lumbosacral spine dated 12 May 1999:-

“Frontal and lateral views of the lumbar spine shoe gentle right convex spinal asymmetry, apex centred at the L3 level. Cobb angle measures under 10 degrees. Pars interarticularis defects are seen at L5. Grade 1 L5 on S1 anterolisthesis appears similar to 4 February 1999.”

4. X-ray lumbosacral spine dated 20 September 1999:-

“Frontal, lateral views of the lumbar spine, frontal and lateral views of the lumbosacral junction were acquired. Gentle right convex curvature of the lumbar spine is similar to previous. Cobb angle remains under 10 degrees. Bilateral L5 pars interarticularis defects are again demonstrated. Grade 1 anterolisthesis of L5 on S1 is similar to 4 February 1999 and 12 May 1999.”

288. Dr Kam confirmed that it was outside of his area of expertise to provide an opinion on the conservative or operative management of the plaintiff, and said that it was inappropriate for him to comment on optimal patient management based on the evaluation of radiological images.

Dr Clayton Thomas, consultant physician in rehabilitation and pain medicine

289. Dr Thomas reviewed the plaintiff in person on 28 June 2022 and via Zoom on 9 November 2023. He provided reports dated 29 June 2022 and 13 November 2023 following those assessments and his evidence was taken into account on damages only.

290. In his first report, Dr Thomas noted that the plaintiff reported constant lower backache, radiating into the buttocks and down the left more so than the right hamstring. She had constant numbness in the anterolateral aspect of her left thigh. The dominant problem was back pain and the pain levels were 6/10, possibly approaching 9/10 once per fortnight. He recorded that the plaintiff took paracetamol or ibuprofen, but otherwise used heat packs and takes hot showers to assist with the pain.

291. The plaintiff reported slight incontinence of urine, which she indicated had been present since her late teenage years, and that she wears underwear with pads to assist with that issue. Dr Thomas noted that the plaintiff avoided heavy lifting, and that walking was reasonably comfortable up to two kilometres on flat surfaces. Sitting was generally limited to 40 minutes at a time. She required breaks when driving long distances.

292. Dr Thomas noted that the plaintiff receives significant domestic support from her husband, and that she stopped work because of the demands of her young family.

293. Dr Thomas diagnosed chronic lower back pain, which appeared to be mechanical in nature, likely related to the L5-S1 level and/or the L4-L5 level or a combination of both. He stated that the plaintiff’s prognosis was for continuing pain and disability, and that continuing with conservative management would be a reasonable course. He considered that the medication she was taking at the time of his review was appropriate, and that ongoing intermittent physical therapy would be reasonable from a treatment perspective.

294. In Dr Thomas’s opinion, the plaintiff had capacity to work fulltime as a social worker, as he understood the reasons for her stopping work with her previous business were related to her family and the need to reach forward (which aggravated her back pain).

295. After his second assessment, Dr Thomas recorded that the plaintiff reported that her symptoms remained, but that she felt overall that the pain was worsening. He stated that the dominant problem, lower backache, was probably related to either the L4-L5 level, the L5-S1 level, the sacroiliac joints or a combination of all three.

296. In Dr Thomas’s view, the only aids which might be of benefit to the plaintiff would be:

297. long-handled aids;

298. a lightweight vacuum cleaner;

299. a trolley to carry clothes;

300. lighter cooking equipment;

301. a well set-up kitchen to avoid bending, lifting and twisting below waist height and above chest height; and

302. an appropriately set up work station to avoid being in one position for any length of time.

The Joint Conferences and Joint Expert Liability Reports

The joint conference and joint expert liability report – 14 May 2024

297. Professor Noel Dan, Dr Andrew Kam, Dr Alan Hopcroft and Dr Armin Drnda participated in a joint conference on 14 May 2024 and a joint report was produced. Professor Dan, Dr Drnda and Dr Hopcroft (“the breach experts”) answered all questions, but Dr Kam’s involvement was limited to questions relating only to causation. Not all questions posed to the experts were strictly relevant to issues of breach of duty and causation of the plaintiff’s alleged injuries and disabilities.

298. The breach experts all agreed that, pre-surgically and as at February-March 1999, the plaintiff suffered from a congenital developmental variant with pars defect at L5 which allowed slippage of L5/S1 in the form of spondylolisthesis of moderate severity. They agreed that the plaintiff did not suffer any neurological deficit with respect to her lower back. Dr Hopcroft and Dr Drnda stated that the School Incident probably worsened or destabilised the plaintiff’s congenital defect.

299. Professor Dan expressed the view that the plaintiff’s range of treatment options as at March 1999 were twofold: either conservative management involving physiotherapy education, exercise programs and simple analgesia or fusion surgery. In Professor Dan’s opinion, conservative management was appropriate, but he understood that the plaintiff, supported by her parents, was anxious to continue with her heavy sporting program and in those circumstances, surgery was also a reasonable option.

300. Dr Hopcroft and Dr Drnda were of the view that the plaintiff’s range of treatment options should have been limited (at least at first) to conservative management with specialised physiotherapy. If conservative treatment was not adequate to treat the plaintiff’s condition and/or improve her symptoms then surgery should have been considered. They were also of the view that the defendant ought to have referred the plaintiff for a second opinion prior to undertaking surgery.

301. Professor Dan believed that the treatment provided by the defendant in offering the option of the surgery on 3 March 1999 was widely accepted in Australia by peer professional opinion as competent professional practice. Dr Hopcroft and Dr Drnda disagreed.

302. The breach experts all agreed that the inherent risks of the surgery were haemorrhage, infection, neural damage, leakage of cerebrospinal fluid, failure of the surgery and death.

303. None of the breach experts would have recommended the surgery. However Professor Dan said that he was aware that a number of young people had had the procedure at the same age as the plaintiff at the time of the surgery. He emphasised that the degree of symptomatology is the critical factor in deciding whether or not intervention should occur. Professor Dan did not think that the surgery was contraindicated, but he agreed that a period of expectant management was appropriate.

304. Dr Hopcroft and Dr Drnda were of the view that the surgery was unlikely to provide a therapeutic benefit. Dr Hopcroft went so far as to state that it was predictable that the surgery would fail. Professor Dan suggested that there was a possibility of therapeutic benefit as a result of the surgery; had the fusion taken, it would have likely reduced the plaintiff’s pain and obviated the ongoing progression of the displacement which was already there.

305. The breach experts differed as to whether adequate bony fusion was possible as a result of the surgery. Dr Drnda indicated that it was possible to achieve fusion, but the post-operative treatment, particularly the lack of strict bracing and allowing the plaintiff to return to hockey, meant that attempted fusion was bound to fail. Professor Dan also considered that it was possible to have achieved fusion, but he would have preferred an instrumental fusion. However, he was not of the view that this was the only course that could be taken. Dr Hopcroft stated that it was not possible to achieve an enduring fusion with the plaintiff’s normal activities of daily living and sporting activities.

306. All breach experts agreed that the surgery could cause damage to the plaintiff’s L4/5 facet. They also all agreed that application of the ladder brace to the plaintiff’s back was unlikely to sufficiently immobilise the plaintiff such that onlay bone grafting would be achieved.

307. All of the experts agreed that the fusion was unsuccessful and they confirmed that view during concurrent evidence at the hearing. They also all agreed that it was more likely than not that the damage present at the L4/5 facet accumulated over time in a delayed manner, rather than being directly attributable to the surgery.

308. When asked what the surgery achieved, Professor Dan and Dr Kam emphasised that based on the documentation available to them, the plaintiff has been functioning relatively well and living a fulfilling life. In the context of a failed fusion, she has done extremely well. They focused on the clinical outcome, which they emphasised was largely positive and which did not indicate any failure of the surgery, rather than focusing solely on the physical outcome of the surgery (lack of fusion). In particular, they highlighted the lack of complaint by the plaintiff in the documentation.

309. Dr Drnda said that on balance, what was achieved would have been achieved with conservative treatment, but any benefit was the result of time spent away from playing hockey, rather than being attributable to the surgery. Dr Hopcroft said that the durability of the fusion was less than predicted and that the defendant did not achieve what was predicted pre-operatively.

310. Professor Dan and Dr Kam believed that the plaintiff’s current lower back pain is related to wear and tear changes to the facet joints of L4/5, which was difficult to relate to the outcome of the surgery. Dr Drnda stated that there was some connection to the surgery. Dr Hopcroft said that this was a “straight case of adjacent segment disease developing because of the fusion at L5/S1”.

311. When asked specifically about the plaintiff’s apparent increase in lower back pain from 2017/18 to 2019 and her ongoing symptoms, Professor Dan and Dr Kam agreed that they were not related to her underlying spondylolisthesis and its progress. Dr Drnda disagreed. Dr Hopcroft was ambivalent.

312. Professor Dan and Dr Kam also agreed that the plaintiff’s recent symptoms were unrelated to a failure of the surgery. Dr Drnda and Dr Hopcroft disagreed. In response to their disagreement, Dr Kam asked them how they reconciled “17 years of no pain with progressive spondylolisthesis”. Dr Drnda and Dr Hopcroft hypothesised that the plaintiff coped with her pain without complaint to medical professionals until it was no longer possible to do so. Dr Hopcroft also suggested that the plaintiff may have had a successful fusion at some stage which then “gave way”, which Dr Kam disagreed with on the basis that such a statement did not accord with his understanding of bone biology. Professor Dan said that it was common, in fact “virtually normal”, for wear and tear changes to occur in a period of 18 to 20 years, and that he thought the very modest increase in spondylolisthesis was not the cause of pain. In his opinion, the significant uptake in the L4/5 facet joint seemed to be a much better explanation for the pain, which is irrelevant to the outcome of the surgery.

313. When asked whether the plaintiff’s 2019 radiology (MRI, CT/bone scan and plain x-rays) demonstrated failure of the surgery, or whether there was evidence of ordinary wear and tear, Professor Dan and Dr Kam indicated that the radiology was fairly typical of what was to be expected in the circumstances. Professor Dan noted that the fact that the bone graft is present (but fractured) suggests that the grafts were applied appropriately but that “some other forces came into play to cause the fracture”. That does not mean that the fusion was not performed adequately, but rather reflects that there were changes over time. Dr Drnda stated that it was not “fractured”, but rather that it was “never bridged, never taken on”. Dr Hopcroft did not provide a clear response to the question.

The joint conference and joint expert liability report – 13 June 2024

314. The experts attended a further joint conference on 13 June 2024 which was also attended by Dr Geoffrey Miller. A joint report was produced following the conference. Dr Miller’s evidence on causation was struck from the report on the basis that it was opinion evidence under s 76(1) of the Evidence Act which did not fall within any of the exceptions to that rule (to which see above). He did not give concurrent evidence with the breach and causation experts at the hearing. The second joint conference’s primary purpose was to address radiological scans from 1999 which were discovered late in the proceedings. Those were two pre-operative x-rays from 4 and 18 February 1999 and two post-operative x-rays from 12 May and 20 September 1999.

315. Dr Kam stated that there was bone graft material seen in the post-operative x-rays, which was not present pre-operatively. The bone graft mass was incomplete, both at the left and the right side, which he stated was relevant in that the infusion mass had not matured and when compared to the plaintiff’s condition in 2019. The underlying pathology (the spondylolisthesis) had not changed. The only difference of substance was at the L4/5 level, which he noted was “quite minor”, and he said that this could be related to age rather than the outcome of the surgery.

316. Dr Hopcroft stated that he agreed with Dr Kam, but responded to his comments as to age-related changes at the L4/5 level by saying that this “tends to ignore… the inevitable development of adjacent segment disease if one intervertebral disc space has been fused, or even attempted fusion, which would compromise movement of that type and therefore would accelerate adjacent segment disease, which was ultimately what this patient developed.”

317. Dr Drnda noted that on the 12 May 1999 films there was bone over the transverse processes of L5 and some on a lateral aspect of the sacrum with a gap. In his opinion, this showed that fusion was never established, rather than fusion having taken place and being fractured at some point thereafter.

318. Professor Dan stated that he thought the changes in the facet joint on the left of L4/5 suggest an inflammatory process. This, he said, could not be related to the surgery because if it had been present for 20 years, other destructive changes would be visible at the facet joint and the plaintiff would have had symptoms closer to the time of surgery. In other words, the changes must be related to an event closer to 2019, rather than something that happened in 1999. Dr Kam agreed with Professor Dan. He also noted the conflict inherent in Dr Hopcroft’s opinion: on the one hand stating that the fusion has failed (and therefore is neither stiff nor solid), and on the other hand stating that the fusion is causing facet joint disease. He observed that in adjacent level disease caused by fusions, it is not just the facet joint affected, but a collection of problems that occur in the adjacent level and that this collection of problems was not present in the plaintiff. In particular, the “disc space is completely pristine, well hydrated, tall and thick so there is no evidence of dehydration, no evidence of degeneration” and he entirely disagreed with the “whole argument” in relation to adjacent level disease.

319. All of the experts stated that the additional 1999 radiology did not cause them to change any of their views contained in the previous joint report.

The joint conference and joint expert liability report – 8 July 2024

320. The experts conducted a further joint conference, with the participation of Dr Seamus Dalton, on 8 July 2024. A joint report was produced, and Dr Miller’s comments were excluded on the same basis as set out above.

321. The experts essentially agreed that, as at February-March 1999 and assuming that conservative management was to be advised, the defendant ought to have advised the plaintiff and/or her parents that she should permanently cease playing hockey, competitive hockey and/or vigorous sports. Dr Hopcroft believed that swimming should have been recommended, which he considered to be a vigorous sport. Professor Dan did not think that one could say this advice was the sole advice that should have been proffered, given the context of the plaintiff attending upon the defendant, that being that she presented because she wanted to keep playing sport. He observed that the other reasonable alternative was surgical intervention, which is what in fact occurred.

322. When asked whether it was reasonable for the defendant, 8 weeks post-surgery, to advise the plaintiff to return to hockey training, playing hockey and then competitive hockey, Dr Hopcroft and Dr Drnda said that it was not reasonable, on the basis that the graft was not mature. Professor Dan disagreed with them, because the plaintiff was reporting that she was progressing satisfactorily. He thought that it was reasonable to assume that the graft had started to heal through blood clotting, which would have then progressed so that the bone would grow or mature toward scarring. He stated that he assumed that the playing of and then competitive hockey were steps to be taken in future if she progressed reasonably.

323. The experts were asked about how the plaintiff’s return to playing hockey and then competitive hockey affected the course of her low back condition. Dr Dalton thought that the plaintiff’s low back condition had not deteriorated radiologically or symptomatically by her returning to hockey training or playing hockey. He believed that she developed back pain later in life when she was less active, had a pregnancy and was breast feeding. He stated that the evidence did not support the proposition that the return to hockey resulted in the worsening of her condition, and that her condition would have progressed in the same way had she not returned to hockey. Dr Hopcroft disagreed with Dr Dalton, stating that there was radiological deterioration, being the spondylolysis slip which went from 5 millimetres to 9 millimetres. Dr Kam had previously addressed this point, stating that this “change” was more likely due to the plaintiff’s positioning (laying down vs. standing) while having the scans taken. Dr Hopcroft also stated that even “not returning to hockey would not have affected the fact that the movement in this girl as a teenager would have prevented bridging bone”. Dr Drnda stated that in the short-term, returning to hockey made things worse, but in the long-term (say five years later), it did not matter. Dr Kam agreed with Dr Dalton. The effect of Professor Dan’s response, which focused on the cause of the significant changes in 2017 being in close proximity to that time, was to agree with Dr Dalton.

The plaintiff’s clinical course established by the lay and expert evidence

The parties’ submissions

Approach to factual witnesses

324. Mr Cranitch submitted that the plaintiff, her husband and her mother were truthful, accurate and reliable in all material respects.

325. The defendant contended that the Court should find that the plaintiff was not a dishonest witness, but that her recollection is very poor and that she should only be accepted when corroborated by contemporaneous records. The defendant said there were five reasons for so finding:-

326. The plaintiff first reduced her recollection to writing at the time of her first Evidentiary Statement in February 2024;

327. The plaintiff conceded that her recollection of what occurred in 1999 was very limited;

328. Fact finding should be informed as far as possible “on the basis of contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (“Fox v Percy”) at [30]-[31] (Gleeson CJ, Gummow and Kirby JJ);

329. Aspects of the plaintiff’s purported recollection are patently wrong; and

330. Some aspects of the plaintiff’s evidence are incredible and others shifted and evolved under cross-examination.

331. Mr Downing elaborated extensively in oral submissions.

332. First, Mr Downing noted that the plaintiff’s instructions in a letter to Dr Hopcroft dated 20 March 2020, which she confirmed in cross-examination, were to the effect that she wore a brace for three months following the surgery. This appeared to be inaccurate taking into account the plaintiff’s evidence later in cross-examination, particularly in relation to her return to hockey.

333. Second, relevant to the way in which the plaintiff’s Evidentiary Statement was prepared, Mr Downing noted that the plaintiff could not recall reporting any symptoms at any of the consultations with the defendant surrounding the surgery apart from the 7 July 1999 consultation. Mr Downing observed that, coincidentally, this consultation was the only one where the defendant’s notes recorded any symptoms reported by the plaintiff.

334. Third, Mr Downing detailed the evolution of the plaintiff’s evidence over the course of Mr Cranitch’s examination-in-chief and his cross-examination, particularly:-

335. On day one of the trial, the plaintiff said that:-

(a) Commencing at the time of her third pregnancy (about June 2016 onward), the pain increased in intensity and began radiating down her left leg and into her buttocks. The plaintiff stated that “that was the point in time where [she] started to get radiating pains down [her] left leg and into [her] buttocks”.

2. On day three, she said that:-

(a) After the surgery, the pain never completely went away but there was a marked decrease and later a gradual increase; and (b) Once she resumed hockey, the pain reoccurred, probably in about 2001 and the pain was severe.

3. On day four, she said that:-

(a) From 1997 to 1999, the pain was “around about five” and was constant; (b) In the lead up to the surgery, the pain increased such that she was “really struggling” and it was “around that seven mark”; (c) At its best after the surgery, the pain was at “around two”; (d) The pain then increased until 2004 when it was “around five” (accepted by the plaintiff as “half of the most severe pain… 24 hours a day seven days a week”) and the pain was confined to her lower back. She later stated that “five” equated to significant pain; (e) In colder months as at 2004, the pain would escalate to “probably around seven”, and she would experience the same pain when she was sitting down at a desk (regardless of the season); (f) The plaintiff stated that she did not think that she had any acute periods of pain when it was severe up to 2004, and it only got to that point in about 2008. I pause to note that this is inconsistent with the plaintiff’s evidence on day three when she said that the pain that reoccurred in 2001 was severe; (g) Later that day, when Mr Downing drew the plaintiff’s attention to her 2FASOC which indicated that the pain was not confined to her lower back as at 2004, she initially indicated that was correct, but then immediately after stated that the document was incorrect. She then recanted that statement and said that she would commonly experience pain in her buttocks and into the back of her thighs not uncommonly. She then agreed that she experienced significant pain through her lumbar spine and into her thighs to the point where she would vomit as alleged in the 2FASOC. This, however, Mr Downing would later point out, was inconsistent with what the plaintiff stated in examination-in-chief, that the pain began radiating elsewhere during her third pregnancy; (h) The plaintiff described the severity of the pain she experienced to the point that she would vomit, as “eight” out of ten; (i) Those episodes would apparently occur a few times a year, often lasting for hours, and the plaintiff would feel like she was debilitated. I note that this is also inconsistent with the plaintiff’s evidence that she did not think that she had acute periods of severe pain during 2004 and that it only got to that point in around 2008; (j) When those episodes occurred, the plaintiff “would probably go and see [her] physio” and generally she would manage the pain herself. I note that there are no written records of her reporting such symptoms to any practitioner, despite the plaintiff indicating that she would have attended upon her physiotherapist and tell him after about the episodes, and that her physiotherapist quite consistently took comprehensive notes of her condition and treatment; and (k) Those episodes have become more frequent since 2004 to the point where they are now occurring monthly (and about which there is no written record).

4. On day five:-

(a) The plaintiff reconciled the inconsistency of what she had said about the time the pain started to radiate to her buttocks and thighs (between her examination-in-chief and her cross-examination on days three/four) by stating that the new pain at the time of her third pregnancy was in fact a different type of pain, a numb sensation in her left leg, rather than the earlier soreness which was tightness and aches. She said that the tightness in her buttocks was no longer “just a tightness”.

5. On day six, the plaintiff said that:-

(a) When the buttock and leg pain began in 2004 or 2005, her lower back pain was at a “moderate” level. The buttock and leg pain was “mild”, “sometimes moderate”; (b) The buttock and leg pain stayed much the same for a number of years, but then in 2017, the “significant pain in [her] leg commenced”. I note the plaintiff’s somewhat perplexing description of a significant pain commencing in 2017, which she at other times describes as a numb sensation. In the same exchange with Mr Downing, she stated the pain was not severe at that point; and (c) By 2017, the back pain became severe and it worsened to the point that it is now constant and severe all the time, with episodes of excruciating pain. The buttock and leg pain has worsened to a moderate level, sometimes severe (described shortly thereafter after as frequently severe).

330. Mr Downing took the Court to various parts of the plaintiff’s treating records. There are no records of a complaint of lower back pain in 2000 or 2001. In particular, he noted that of the plaintiff’s six physiotherapy appointments in 2002, there was only one fleeting reference to lower back symptoms (but no treatment performed). There is no significant reference to lower back symptoms by any medical practitioner in that year. As noted above, in her evidence the plaintiff initially stated that she had a recurrence of the pain in about 2001 and that the pain was severe. However, that account does not appear to be consistent with her later accounts of the timeline throughout her evidence.

331. In 2003, there is no reference in the physiotherapy records to lumbar symptoms. Treatment was received on three occasions for thoracic and cervical spine symptoms. There are no records from any other medical practitioner.

332. The plaintiff identified 2004 as a turning point for her condition in her evidence. However, Mr Downing noted that the one entry in the physiotherapy records of that year is a sole attendance unrelated to the back. There is no attendance upon a medical practitioner in relation to the back in 2004, which is a crucial part of the plaintiff’s timeline. Mr Downing observed that the plaintiff attended medical practitioners for treatment for other issues. She attended for headaches and tight neck muscles which would appear to be comparably minor issues when considering the extent of her symptoms in her lower back outlined during her evidence.

333. Mr Downing noted that in the plaintiff’s February 2024 Evidentiary Statement, the plaintiff’s rationalisation for not attending physiotherapy in 2004 was because of its expense, as she was a university student and only working on a part-time basis at that time. Mr Downing contrasted Ms Leah’s evidence that she and her husband met the plaintiff’s medical costs through to the completion of university because she was still covered under their insurance policies. In cross-examination the plaintiff said that she did not ask her parents to pay as she did not want to be a burden on them. Counsel noted that the amount of the gap fee was $9.00 per attendance in 2004 (based on Ms Leah’s records). Ultimately it was submitted that the plaintiff’s evidence in relation to this issue was simply not credible and was a “poor attempt at rationalising a lack of treating records that do not fit with her account.”

334. Similarly, in 2005 and 2006, counsel pointed to the lack of attendances upon physiotherapists or medical practitioners in relation to the plaintiff’s back.

335. Mr Downing then took the Court to the plaintiff’s account of worsening symptoms as a result of her transition from the social worker position to the team leader position at YES. The plaintiff stated that this position required a lot of desk work, that she was not able to move around, and was required to drive some distances. She said that those factors worsened her back pain. Counsel noted that the plaintiff started in the team leader position on 12 November 2007, which postdates the four physiotherapy attendances that year. Notes from the first of those attendances suggest that she had back pain which may be related to sitting down at work. The notes from the three further attendances did not record significant lumbar pain but did indicate the plaintiff was having some problems with her back, right buttock and hamstrings. The essence of counsel’s submissions on this issue was that it showed an inconsistency between the plaintiff’s evidence and the documentary evidence. I note the total absence of any record of significant lumbar pain.

336. In 2008, the plaintiff attended physiotherapy twice, but it appears that neither attendance related to lumbar spine symptoms. The one consultation with the plaintiff’s general practitioner does not relate to low back pain. Mr Downing emphasised that this was the plaintiff’s first full year in the team leader position, at which time the plaintiff in her evidence stated that she experienced a significant worsening of her back pain. There is no evidence of the plaintiff attending any medical or other specialist for treatment of her back pain in 2008.

337. As noted elsewhere in this judgment, the plaintiff indicated that there was a significant worsening of her back pain during each pregnancy. However, during the course of her first pregnancy in 2009, there are no written records of any (significant) back pain. There are, however, records noting other problems throughout the pregnancy and notes that the plaintiff was otherwise well.

338. In 2010, there are no records of any attendance upon a medical practitioner or physiotherapist for lower back pain.

339. In 2011, there are notes of two attendances for lower back pain which record an insidious onset of central thoracic to lumbar pain on 29 September, which was “much better” by the next time she attended on 8 October.

340. The one explicit reference to the lumbar spine in the notes of an attendance in 2012 is that it was “stiff and tender” on the right side. There are two other attendances in that year, but they relate to stretching techniques and sleeping positions which appear to be unrelated to the lumbar spine.

341. An attendance on 14 October 2013 refers to the plaintiff’s history of some migraine and cervical or thoracic stiffness, and difficulty sleeping with soreness in the thoracic spine. There is no reference to lumbar pain.

342. I pause to note that the plaintiff was pregnant with her second child from the second half of 2012 to 18 April 2013, throughout which she claimed to have a significant worsening of lumbar spine symptoms. The obstetric records demonstrate that the plaintiff did have issues with other parts of her body during that pregnancy, for example her right carpal tunnel, but there is no reference to the lower back and there are multiple references to the plaintiff being otherwise “well”.

343. In 2014, there are no records that note any back pain.

344. The plaintiff attended a physiotherapy appointment on 2 June 2015. She completed a pre-physiotherapy checklist for that appointment on 12 May 2015. She indicated in that document that she would like to achieve pain relief and to loosen her back and shoulder muscles. The notes from the appointment indicate complaint of right thoracic and lumbar symptoms. There are no other relevant records in 2015.

345. The plaintiff attended her general practitioner on 14 January 2016 who noted that she had, inter alia, on and off bloating and lower back pain. There are no other records of back pain in that year, and there are no records of physiotherapy attendances.

346. In 2017, there are no records of back pain.

347. I observe that 2016 and 2017 are the years during which the plaintiff was pregnant with her third child. This is the period in which the plaintiff says that she had a significant worsening of her lumbar symptoms and after which the plaintiff says that she did not recover as she had following her previous pregnancies.

348. The plaintiff was seen by Dr John Salmon and Dr Kae Wong, gynaecologists, at least eight times over the course of her third pregnancy. Dr John Salmon, gynaecologist, wrote to the plaintiff’s general practitioner on 25 October 2016 and indicated that the pregnancy was proceeding unremarkably other than a low posterior placenta. Notes from Dr Salmon in relation to an attendance on 13 December 2016 do not indicate that the plaintiff was experiencing any back pain. On 29 December 2016 on the plaintiff’s return to Dr Salmon, there is no reference to back pain. Another gynaecologist at that practice, Dr Kae Wong, indicated after seeing the plaintiff on 12 January 2017 that she looked and felt well, with no reference to back pain. There are four further entries throughout January and February, none of which refer to back pain. Three of those entries explicitly record that the plaintiff is “well”. The fourth entry is approximately one week prior to the birth of her third child, and it notes that the plaintiff experienced contractions the night before, but there is no reference to back pain.

349. Mr Downing put the issue in the following terms in oral submissions:-

“If you’re having back pain to the point that it is reducing you to vomiting and collapsing to the floor for relief, it’s extraordinary that a number of things aren’t happening. Number one, that you’re not seeing your GP about it; number two, that you’re not seeing the physio that you have a longstanding relationship [with] and who has treated you in respect of your back before; and number three, frankly, it’s extraordinary that you weren’t asking to go back and see an orthopaedic surgeon who might be Dr Hillier, as it was in 2019, but certainly if things were getting so bad in 2017 or 2016-2017, when this pregnancy is happening, it would seem an extraordinary thing not to go back and say, whatever relief I got back then I am now worse than I’ve ever been in my life, I am debilitated.”

350. Mr Downing did not make the submission that the plaintiff’s evidence was “deliberately false”, but rather that her evidence was simply “not believable”. He later clarified that his submission was that the plaintiff’s evidence was a reconstruction on the basis that she could not in fact recall the history of her symptoms. His point was that the plaintiff was not credible, in the way that “credibility” is defined in the Evidence Act, which states in Part 1 of the Dictionary:-

“credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.”

(emphasis added)

351. During cross-examination the plaintiff said that she attended upon her solicitors and gave them an account of what had occurred, which was the beginning of the process of preparing her statements. She said that she could not recall being shown any of her treatment records in the process of preparing the statements. I note the following exchange with Mr Downing at T99-100:-

“Q. What I’m asking is, while you were going through the process of drafting [the first statement] do you recall being shown treatment records and being asked to consider what they contained so that you could say things about, for instance, when you’d sought treatment?

A. No.

Q. Do you say that as best you can recall what we see in your statement comes purely from recollection, not from any reference to medical records?

A. No.

Q. You’re agreeing with me?

A. Yeah, yep.”

352. Following that exchange, the plaintiff was shown various documents in the records from the Albury Central Medical Clinic records and Healthfocus Physiotherapy. She said that she could not recall seeing them previously. She acknowledged that she used invoices from Healthfocus Physiotherapy which she had found to assist in the preparation of her statement, but she said that she did not recall looking at the records from her general practitioner or the physiotherapy practice.

353. At T110, Mr Downing asked the plaintiff the following:-

“Q. Thinking back now to the process of preparing your statement, do you have a recollection of perhaps not being shown the GP records or the physio records but someone telling you dates upon which you attended?

A. No. I, I had a list of dates as to when I’d attended the appointments, so, and I knew that those appointments in that period of the beginning of 1999 were all in relation to my back.”

354. At T117-119, the following exchange took place:-

“Q. Do we take it that where you have provided your evidentiary statement – and I’ll deal with physiotherapy first of all – that where there is a reference to a date of attendance at physiotherapy and a particular problem that you presented with or treatment you received; you may have been assisted by the invoice?

A. Yes.

Q. You may have been assisted by the date that’s highlighted in this document from your mother?

A. Yes.

Q. But in terms of the content of what occurred that day, that is entirely from your recollection?

A. Yes.

Q. To the extent that in your statement you deal with GP attendances, do we take it that dates and subject matter are entirely based on your recollection?

A. Yes.

…

Q. Just thinking back again to the process of drafting your first evidentiary statement which you said may have started late 2023 and was complete by the date it was signed, which was 21 February 2024. Do you have any recollection of someone, in the process of drafting it, telling you that they had been through your treating records and had worked out the dates of various attendances?

A. I can’t recall particularly.

Q. Think back. It’s not a long time ago. I want you to do your best. Do you believe that what we see in terms of the dates and subject matters of attendances is based on, at least with the GP your recollection rather than anyone assisting you by telling you what they had seen in terms of what the treating records showed?

A. I may have had a discussion about some of those matters.

Q. But you can’t recall it now; is that the case?

A. Yes. Yep.

Q. Just so we’re clear, I’m talking about a process where someone said to you “Look, on this date, there’s a GP record showing that you attended for a particular problem. What can you tell me about that?”. Do you remember anything like that occurring?

A. We, we did have conversations, I guess, around those kinds of matters.

Q. Just so I’m clear, where a person who was assisting you in preparing your statement was saying to you “I’ve been through the treating records. This is what it shows on this date. What can you tell me about it?”?

A. Yeah, I guess. Yep.

Q. That did happen?

A. There might have been some discussions like that.

Q. So it might be that in preparing it, you were assisted by someone else in terms of indicating to you when you saw a GP or when you saw a physio and what that might have been about?

A. Yes.

Q. Did you do your best to then provide an accurate account of what occurred on that day in your statement?

A. Yes.”

355. At T 138-139, Mr Downing took the plaintiff to her statement at [41] where she provided detail with respect to a consultation with Dr Andrew Milliken on 6 March 1998:-

“Q. You say there that on 6 March 1998, when you were aged 14, you attended a consultation with Dr Milliken due to pain and discomfort in your lower back, and that Dr Milliken diagnosed you with a urinary tract infection?

A. Yes.

Q. Do I take it that you have come up with that account of what occurred on 6 March 1998 purely from recollection?

A. No, I don’t believe so.

Q. So how are you able to nominate that date?

A. I believe that it was probably from the information that was – like, the, the medical records. Our conversation in regard to that.

…

Q. You say to us that you don’t believe you ever saw the medical records, but you accept that you may have had someone that said “There’s an entry in the notes for that day and it says certain things. What can you tell us about that?”? Is that what you’re saying?

A. Yes. Yes.

Q. You think that it’s likely you’re able to describe that account by reference to what someone else told you based on their review of the records?

A. Yep.”

356. The plaintiff’s comments with respect to the manner in which her statement was prepared suggest that her independent recollection of those details is extremely limited. This is relevant to my assessment of the plaintiff’s evidence, to which see below.

357. The defendant contended that his evidence, which was supported by contemporaneous records, should be preferred to that of the plaintiff (and her mother) with respect to all of their dealings in 1999.

358. Mr Downing said that the Court should be circumspect with respect to the evidence of Ms Suzanne Leah for four reasons:-

359. Ms Leah prepared her statement based on a combination of a purported actual recollection and the contents of the book she maintained and the supporting invoices she kept, but the statement was supplemented by information added by the plaintiff’s solicitors (which she accepted was true);

360. Ms Leah conceded that she could not recall certain key aspects of the timeline leading up to the surgery, despite claiming to have a clear recollection;

361. Ms Leah assumed that the plaintiff was only ever attending physiotherapy for her low back condition; and

362. Ms Leah could not recall any specific discussions with the plaintiff about her low back condition, but she conceded that some discussions were likely to have occurred.

363. The defendant submitted that the Court would be slow to accept the evidence of Mr Nathan Briggs, who effectively conceded that his recollection was limited.

364. The defendant accepted that he has an incomplete recollection of the consultations with the plaintiff but he relied on a combination of his own recollection, contemporaneous notes and the nature of his usual practice which, it was submitted, made him a reliable witness. It was submitted that the Court should find that he was an honest, open and forthright witness who made concessions where appropriate.

365. I accept the evidence of Dr Hillier whenever it conflicts with the plaintiff or her mother. The plaintiff’s and Ms Leah’s evidence was based on a belated reconstruction of events, whereas Dr Hillier’s evidence was based largely on his contemporaneous records and his usual practice.

Factual findings contended for

362. In submissions, the plaintiff did not contend for any particular factual findings to be made.

363. The defendant contended that factual findings should be made as follows:-

364. Between 1997 to early 1999, the plaintiff had become acutely symptomatic and was significantly troubled by her back pain, which was not relieved by physiotherapy. I accept this submission based on all of the evidence. This was the reason the plaintiff sought out the defendant.

365. By the time the plaintiff consulted with the defendant on 12 February 1999, she and her parents were motivated to find a quick solution for her consistent and by then, longstanding, significant and worsening low back pain. I accept this submission based on all of the evidence.

366. By the time of the consultation with the defendant on 3 March 1999, the plaintiff and her parents were looking to explore options to both resolve her pain and to support the plaintiff in her desire to return to hockey as it was a major part of her life. I accept this submission on all of the evidence.

367. The defendant discussed surgery, in more detail, as an option for the plaintiff to consider during the consultation on 3 March 1999, but no arrangements were made for surgery on that date. Neither was surgery identified as the recommended course. I accept this submission on all of the evidence, and in particular on the contemporaneous records of the defendant.

368. The desire for the plaintiff to return to hockey was a major factor in driving the plaintiff and her parents to seek out a surgical solution. I accept this submission on all of the evidence.

369. At the time the plaintiff attended the defendant on 14 April 1999, she had removed her brace and reported doing well. I accept this submission on all of the evidence, and in particular on the contemporaneous records of the defendant.

370. By 12 May 1999, the plaintiff was reporting to the defendant that she was coping well. The plaintiff was active and she demonstrated good spinal movement, with extension, flexion and twisting. On 12 May 1999, the defendant advised the plaintiff that she could have a staged return to hockey, beginning first with training. I accept this submission on all of the evidence, and in particular on the contemporaneous records of the defendant.

371. By 20 September 1999, the plaintiff reported to the defendant that she was very comfortable, was untroubled by pain and had returned to competitive hockey. It was understood that if there were any problem, the plaintiff should return to see him. I accept this submission on all of the evidence, and in particular on the contemporaneous records of the defendant.

372. The plaintiff achieved a good, functional outcome from the surgery. I accept this submission on all of the evidence, including the paucity of complaint until 2017.

373. The plaintiff did not suffer from any, or any significant lumbar symptoms until 2018 to 2019. I accept this submission on all of the evidence.

374. In accepting these submissions, I rely on the contemporaneous materials, objectively established facts, rational inferences and the logic of events: see Fox v Percy at [30]-[31].

375. It was submitted that the Court would not be satisfied that the plaintiff suffered from constant, mild to moderate back pain following her surgery, which from about 2004 or 2005 began to radiate into her buttocks and the back of her legs (although not constantly). The defendant contended that the plaintiff did not suffer from any, or any significant, lumbar symptoms until 2018 to 2019. Based on the contemporaneous records and the lack of complaint, in my opinion no other conclusion is open on the balance of probabilities. With respect to the plaintiff’s urinary symptoms, it was submitted that the Court would not be satisfied that those were symptoms “flowing from her surgery”. I am not satisfied on the balance of probabilities that any urinary symptoms were caused by the surgery. No contemporaneous document supports such a conclusion.

376. Further, in relation to the plaintiff’s unexplained failure to call evidence from Mr Robertson, physiotherapist (who it was conceded is still in practice at Healthfocus), the defendant submitted that an inference should be drawn that his evidence would not have assisted her case: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 308 per Kitto J. I am prepared to draw an inference that the plaintiff’s failure to call Mr Robertson who had treated the plaintiff from the time of her surgery with Dr Hillier until at least 2020, and who would have been expected to shed light on the plaintiff’s alleged history of lower back pain, would not have assisted her case.

Conclusions

367. I accept the defendant’s characterisation of the lay witnesses in this case. In my view they have all reconstructed events long after they occurred. The plaintiff’s evidence about her symptoms and disabilities are supported by neither contemporaneous medical records nor the physiotherapy records.

368. My impression of the plaintiff over the course of her lengthy cross-examination by Mr Downing was that she was not a dishonest witness, but rather that her evidence was entirely unreliable due to an inability to recall events which occurred many years ago. I also find that she tended to exaggerate her symptoms and the extent of her injuries and disabilities, and at times she provided evasive responses to counsel’s questions. Although the plaintiff was generally not a dishonest witness, her evidence was inaccurate in some important respects.

369. Over the course of her cross-examination, the plaintiff’s evidence of her purported independent recollection changed to a significant extent when counsel drew her attention to contemporaneous records. She made appropriate concessions on multiple occasions, which support my finding that she was generally not a dishonest witness. However, it equally supports my conclusion that the plaintiff’s evidence amounts to a reconstruction with a bias against Dr Hillier.

370. Further, there were certain aspects of the plaintiff’s evidence which are in the circumstances inherently unbelievable. One of the more extreme examples was the assertion pointed to by Mr Downing, that the plaintiff was experiencing low back pain on a regular basis (commencing in about 2004, and increasing in frequency thereafter) to the extent that she would be lying on the floor vomiting. There is, however, not a single record of such a complaint in the contemporaneous records. This is not a case where the plaintiff did not otherwise seek treatment for other symptoms such that it might be believable that she was simply putting up with the pain. Indeed, the records are replete with the plaintiff complaining about multiple health issues over time. In cross-examination at T96, the plaintiff said that if she had an instance of significant pain in a part of her body, she would normally go and seek medical attention, including attending upon a general practitioner. There are some (albeit only a few) references to lumbar pain in the records from 2004 onward. However it does not appear to have been a significant or dominant complaint. Indeed, a letter from her general practitioner on 18 March 2009 records:-

“… [the plaintiff] had spinal surgery for # L5 10 y.ago and had spinal fusion, has been well since then. …”

371. The reference to lying on the floor vomiting from 2004 onward was not a fleeting one in the context of the plaintiff’s cross-examination. She was asked many questions about that complaint, and she set out the nature and frequency of the pain in detail. In the overall context of the plaintiff’s evidence, it is clear that this was at best an exaggeration, and possibly untrue. I cannot accept, in all the circumstances, that if the plaintiff was frequently in such pain that she would lie on the floor and vomit, there would be absolutely no complaint of it in the medical records. This is but one instance of exaggeration, which causes me to doubt the plaintiff’s evidence generally.

372. I find that Ms Leah was an honest witness, but I cannot accept her evidence where it is not supported by contemporaneous records. She gave evidence in an entirely candid manner and was not particularly prone to exaggeration. She made concessions where appropriate. Like every other lay witness in this case, however, due to the passage of time between the events in 1999 and the hearing, I am unable to rely upon her evidence without the support of contemporaneous records. Her evidence is of limited value.

373. With respect to Mr Briggs, he rightfully conceded during the course of his evidence on multiple occasions that his recollection was limited due to the passage of time. My impression was that he was honest and attempted to recall events to the best of his ability, but he was unable to answer many questions put to him and his evidence therefore did not meaningfully assist the Court in relation to the real issues in this case. It appears that he was not closely involved with the plaintiff’s professional treatment, so that it is unlikely that any account he was able to give would be supported by documentary evidence. For those reasons his evidence is likewise of limited value.

374. In relation to the plaintiff’s clinical course established by the lay and expert evidence and the documentary material, I find the following facts.

375. The plaintiff’s School Incident occurred in 1995 and she suffered some symptoms in her lower back between 1995 and 1999. That pain worsened as a result of her hockey commitments and the symptoms increased in severity until 1999.

376. Between July 1998 and the first time the plaintiff saw the defendant on 12 February 1999, she attended physiotherapy consultations for her low back symptoms on 14 occasions.

377. On 12 February 1999, the plaintiff attended upon the defendant where he identified that the plaintiff had a grade 1 spondylolisthesis. He recommended that the plaintiff undergo L5-S1 facet joint injections. Surgery was discussed as an option if conservative management was unsuccessful. Both the plaintiff and her parents wanted her to return to competitive hockey and were anxious for her back pain to be resolved as soon as possible.

378. On 3 March 1999, Dr Hillier had a discussion with plaintiff and her parents where surgery was discussed. A booklet was given, and the risks of surgery were discussed. Both the plaintiff and her parents expressed views in favour of surgery. Indeed, they were very positive about proceeding to surgery.

379. On 11 March 1999, Dr Hillier performed an instrumental posterolateral fusion upon the plaintiff. She was discharged a few days later wearing a back brace.

380. On 14 April 1999, at a follow up consultation with Dr Hillier, the plaintiff reported that she was coping very well and did not need the back brace.

381. On 12 May 1999, at a follow up consultation with Dr Hillier the plaintiff said that she was coping well and fully active. She had regained a lot of flexibility. Her bone graft appeared mature. She wished to return to competitive hockey.

382. On 7 July 1999, at a follow up consultation with Dr Hillier, the plaintiff reported to be coping well, moving very freely and that she had fully returned to hockey.

383. On 20 September 1999, at her last follow up with Dr Hillier, the plaintiff reported that she was comfortable and untroubled with hockey. She did not return to see Dr Hillier until February 2019. From September 1999 to about 2017/2018, the plaintiff had no significant back pain and was able to conduct a full life at home and at work. Since then, she has had substantial issues with her lower back.

Limitation

384. The defendant pleaded a limitation defence pursuant to s 18A(2) of the Limitation Act 1969 (NSW) (“the Limitation Act”) and submitted that the plaintiff’s claim is statute barred.

385. The plaintiff filed a notice of motion dated 17 April 2024 seeking an order that:-

“In the event the Court determines that the cause or causes of action pleaded in the Second Further Amended Statement of Claim dated 11 April 2022 are time barred (in whole or part) then it is just and reasonable that the limitation period of periods applicable to the Plaintiff’s cause of action as pleaded in the Further Amended Statement of Claim and as determined by the Court be extended.”

386. The 3FASOC was filed after the plaintiff’s notice of motion and the order is now sought in relation to the current iteration of that document.

Statutory Framework

387. There are multiple acts and omissions by the defendant which the plaintiff alleges caused her injuries. Indeed, there is a list of 28 precautions that the plaintiff says the defendant ought to have taken against the risk of harm. The latest any of those acts or omissions could have occurred, in the context of this claim and the manner in which the plaintiff has argued her case, is 20 September 1999, being the last consultation date with the defendant prior to returning to see him in 2017. The limitation period for the plaintiff’s cause of action in the tort of negligence commences when the cause of action “accrues”. That occurs when the plaintiff suffers loss or damage, in this case from, at the latest, 20 September 1999. The plaintiff’s claim is therefore governed by the former limitation regime (the current regime being for acts or omissions occurring on or after 6 December 2002: s 50A(2) of the Limitation Act).

388. Section 18A of the Limitation Act provides:-

18A Personal injury

(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to—

(a) a cause of action arising under the Compensation to Relatives Act 1897, or

(b) a cause of action that accrued before 1 September 1990, or

(c) a cause of action to which Division 6 applies.

Note—

Division 6 provides for the limitation period for non-motor accident actions for death or personal injury resulting from an incident that occurs on or after the commencement of that Division.

(2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.

389. Sections 60G and 60I of the Limitation Act provide, relevantly:-

60G Ordinary action (including surviving action)

(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

…

60I Matters to be considered by court

(1) A court may not make an order under section 60G or 60H unless it is satisfied that—

(a) the plaintiff—

(i) did not know that personal injury had been suffered, or

(ii) was unaware of the nature or extent of personal injury suffered, or

(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and

(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii).

…

Plaintiff’s submissions

390. Counsel for the plaintiff addressed the limitation issue in written submissions. It was contended that the plaintiff only became aware of the injury and that it was caused by the negligence of the defendant on or about 27 April 2020, and was therefore in time because the proceedings were commenced shortly thereafter. In the alternative, the plaintiff claimed to be entitled to an extension of time pursuant to s 60G of the Limitation Act, and what follows are her submissions with respect to ss 60G and 60I.

391. The plaintiff submitted that she was aware that the surgery “was likely to give rise to a cause of action” when she responded to an advertisement from the plaintiff’s solicitor on 3 September 2019, which is the date that the plaintiff first contacted her solicitors Commins Hendriks. It was submitted that she did not become aware that a cause of action arising out of the surgery “existed” until a report from Dr Hopcroft was obtained on 27 April 2020.

392. The remainder of the plaintiff’s submissions with respect to s 60I(1)(a) were focused upon the plaintiff’s belief that the surgery had been successful until 27 April 2020. These are not reproduced in detail because they are irrelevant to my determination on the limitation point.

393. The plaintiff submitted that the defendant suffered no prejudice as a result of the delay in commencing proceedings. It was submitted that the defendant was familiar with his usual practice and had a clear recollection of many of his conversations with the plaintiff. It was submitted that his ability to give evidence was not impeded by any missing material.

394. The plaintiff conceded that the absence of some records might prejudice the defendant in the conduct of his defence.

395. Ultimately, it was submitted that no prejudice “can possibly be argued sufficient to defeat the [p]laintiff’s claim”, or in other words, that it was just and reasonable to extend the limitation period despite any prejudice in the circumstances (which was not conceded).

Defendant’s submissions

396. The defendant submitted that the only onus on a defendant or respondent to an application to extend time is to raise evidence of actual prejudice where actual prejudice is to be asserted: Brisbane South Regional Authority v Taylor (1996) CLR 541 (“Brisbane South”) at 567 per Kirby J; [1996] HCA 25. It was submitted that a defendant’s inability to point to actual prejudice will not militate in favour of granting an extension if the presumptive prejudice is material: Doughty v Hillier [2024] NSWSC 1220 at [120]-[121] per Faulkner J. Further, it was submitted that it does not follow that in the absence of prejudice (other than general prejudice) and an unlikelihood of a fair trial, it will be just and reasonable to grant an extension of time: McLean v Sydney Water Corporation [2001] NSWCA 122 at [22] per Giles JA.

397. It was submitted by the defendant that the assessment of whether there is “significant prejudice” is not to be determined in a vacuum, but rather it is to be determined by considering whether the delay has made the chances of a fair trial unlikely, noting that ideal or perfect fairness is unattainable and that what is required is an acceptably fair trial in the circumstances: South Western Sydney Area Health Services v Gabriel & Anor [2001] NSWCA 477 at [32] per Hodgson JA.

398. In written submissions, counsel for the defendant reproduced and relied upon the following excerpt from McHugh J’s judgment in Brisbane South at 551:-

“The enactment of time limitations has been driven by the general perception that ‘where there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anyone else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So it must often happen that important, perhaps decisive, evidence has disappeared without anyone now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship with the cause of action is no longer as apparent as it was when the cause of action arose.”

(emphasis added by counsel for the defendant)

399. The defendant submitted that if the Court accepts the plaintiff’s evidence as to the extent of her pain and the timeframe within which it developed, it could not follow that the plaintiff was not aware that personal injury had been suffered, or of its serious nature or extent, or that there was a connection between that personal injury and the treatment she received from the defendant. Bearing in mind my findings as to the plaintiff’s clinical course, this submission falls away and the remaining question is whether it is just and reasonable for the Court to exercise its discretion to extend time under s 60G.

400. The defendant submitted that the Court would not be satisfied that it is just and reasonable to order an extension of time for the following reasons:-

401. There has been a significant loss of material which would bear on and may have served to corroborate aspects of the defence case, including:-

(a) Albury Wodonga Private Hospital Records which would have included a copy of the operation report and details of the plaintiff’s condition in the 7-day period following surgery; (b) The defendant’s clinical records, including reporting letters the defendant says he would have sent to various medical practitioners and others involved with the plaintiff’s treatment, including the plaintiff’s parents. Counsel noted that there may have been communications between the defendant and Mr Robertson, physiotherapist, about interferential therapy which the plaintiff alleges did not occur; (c) Physiotherapy treatment records up to January 2002, which the defendant says would bear upon the critical issue of the nature and extent of the plaintiff’s back pain before and after the surgery, including the plaintiff’s claim that she was never free of back pain following the surgery. Mr Downing elaborated on this submission orally and noted that the records which were obtained for the purpose of these proceedings were comprehensive in the detail of those attendances; and (d) Hockey records which the defendant says would have permitted him to challenge the plaintiff’s contention that she was unable to return to the same level of hockey that she had competed prior to her injury, or that she had reported back complaints during her hockey competitions.

2. The defendant’s recollection has deteriorated to the extent that he is unable to recollect precise details of his consultations with the plaintiff and her parents. The defendant submitted that it was inevitable that he would have to rely on his “usual practice” and that this was demonstrable actual prejudice.

3. Counsel for the defendant submitted that the absence of the records noted above is demonstrative of actual prejudice, such that important and perhaps decisive evidence has disappeared and that a fair trial is unlikely as a result. That is particularly so, it was submitted, where the plaintiff’s case was largely focused upon her condition in the period leading up to and immediately after surgery in March 1999.

Determination

402. Pursuant to s 18A of the Limitation Act, the plaintiff’s claim is not maintainable if brought after the expiration of a limitation period of three years running from the date on which the cause of action first accrues to the plaintiff. The plaintiff’s claim was particularised in so many ways that, for the purpose of this analysis, it is convenient to deal with the latest time at which the plaintiff’s time could have accrued. If it is assumed that the limitation period ran from 20 September 1999, the limitation period for the claim would have expired on 19 September 2002. If the plaintiff’s claim accrued at any earlier stage, for example at the date of the surgery or when advice was provided to gradually return to hockey, the limitation period would have expired on a date prior to 19 September 2002. However, the plaintiff was under a disability until her 18th birthday on 23 May 2002. The limitation period therefore expired three years after that date: s 52(1)(e) of the Limitation Act.

403. The plaintiff commenced these proceedings on 16 December 2020. Therefore the limitation period for the plaintiff’s claim has expired. In the circumstances of this case, the plaintiff’s claim can only be maintained if the Court extends the limitation period under s 60G of the Limitation Act. It is necessary to turn first to s 60I, as the Court’s discretion under s 60G is only enlivened if the preconditions in s 60I(1) are satisfied.

Are the preconditions in section 60I satisfied?

404. The Court is only required to find that one of the three preconditions in s 60I(1)(a) is satisfied, in addition to the precondition in s 60I(1)(b).

405. As set out in my factual findings above, the plaintiff only developed lumbar symptoms (of significance) in or about April or May 2018. On her case, this is when the plaintiff first knew that personal injury had been suffered and she therefore did not know that it had been suffered on or before the expiration of the limitation period. The corollary of that finding is that she was also unaware of the nature or extent of personal injury suffered and the connection between the personal injury and the defendant’s act or omission at that time.

406. On that basis, all three preconditions in s 60I(1)(a) are satisfied (although only one is required).

407. Section 60I(1)(b) requires an application to be made under s 60G within three years after the plaintiff becomes aware (or ought to have become aware) of all three matters in s 60I(1)(a).

408. A note from Dr Allen within the Albury Centre Medical Clinic dated 6 September 2019 records, relevantly:-

“… Seen by Dr Hillier, suggested further spinal surgery within the next 5 years, reports “thinking to have it done within the 12/12” as still symptomatic with ongoing back pain on/off. …”

409. Between 30 April 2018 and 6 September 2019 inclusive, there are references in the medical records to the plaintiff having chronic, long term and/or on and off lower back pain. The plaintiff attended upon multiple medical and allied health professionals, including her general practitioner, the defendant and her physiotherapist, seeking treatment in relation to those symptoms. I take the reference to “ongoing back pain” in Dr Allen’s note of 6 September 2019 to refer to lower back pain. At least by the time the plaintiff was considering, as a result of that ongoing lower back pain, that she would have surgery within the next twelve months, it can be said that she was aware of the nature or extent of the personal injury suffered. At that time, however, it is unclear whether she was aware of the connection between the personal injury and the defendant’s act or omission. The plaintiff submitted, in my view correctly, that the fact that she returned to see the defendant in 2019 indicates that she did not believe she had cause to believe that harm had been occasioned to her as a result of the defendant’s actions in 1999.

410. With respect to the connection between the personal injury and the defendant’s act or omission, it is relevant to note that the plaintiff received the report of Dr Hopcroft on 27 April 2020.

411. It is possible that the plaintiff had constructive knowledge of all three matters in s 60I(1)(a) prior to that date, but it can certainly be said that by 27 April 2020 the plaintiff had in fact become aware of them. That is, she knew that personal injury had been suffered and the nature or extent of personal injury, and she was aware of the connection between the personal injury and the defendant’s alleged act or omission.

412. According to the plaintiff’s submission, she “became aware of the injury and that it was caused by the negligence of the [d]efendant on or about 27 April 2020”, that is, on or about the date of the first report from Dr Hopcroft. I am satisfied that she was aware of the matters in s 60I(1) at the date that report was received, being 27 April 2020.

413. Therefore, the plaintiff’s application to the Court to grant an extension of the limitation period was required to be made on or before 26 April 2023. The first time the plaintiff explicitly asserted that the limitation period ought to be extended is in her Reply dated 2 June 2023 (although a Notice of Motion applying for an extension was not filed until 17 April 2024), but the Statement of Claim was filed in 2020 within the three year period required pursuant to s 60I(1)(b) and neither party suggested that the application under s 60G was not made within time.

414. The preconditions under s 60I(1) being satisfied, the Court’s discretion under s 60G is enlivened. However, in my opinion it is not just and reasonable to extend the limitation period for the plaintiff’s claim for the following reasons.

415. The plaintiff is required to prove her case on the balance of probabilities. She may have herself been disadvantaged in the conduct of her case by the significant loss of material which has occurred over a period spanning more than 25 years. However, it was the plaintiff’s choice, informed by her legal representatives, to pursue her claim despite the loss of evidentiary material. On the other hand, the defendant had no such choice and is entitled to point to the prejudice which he may have suffered in the conduct of his defence. Adopting Mr Downing’s oral submissions in summary, I pause to note that the loss of material in this case is significantly prejudicial for the following reasons:-

416. Clinical notes of the defendant and the plaintiff’s physiotherapist would have given a clear and contemporaneous picture of the plaintiff’s back and her symptoms in the lead up to the surgery, including how she was responding to particular treatments and whether such treatments aggravated her symptoms (which is an important part of the plaintiff’s case);

417. The interferential treatment which the plaintiff says the defendant was required to recommend would have occurred (if it had) during the period where material has been lost. It is unknown to the Court whether it did occur, and if it did, its effectiveness and the plaintiff’s and/or her parents’ attitudes toward it;

418. The plaintiff and/or her parents’ attitudes toward the prospect of surgery generally may have been inferred from (or directly recorded in) such material. There is likely to be missing correspondence about this topic from the defendant to the plaintiff’s parents, and various other health professionals;

419. The suggestion that the plaintiff see a surgeon allegedly came from a physiotherapist, and there likely would have been a note about this in the plaintiff’s clinical notes if it had;

420. There may have been a note from Mr Robertson to the defendant with respect to his treatment of the plaintiff, including whether it was causing her similar pain that had led to her seeing the defendant, and whether the plaintiff and her parents were content to proceed with further physiotherapy or wished to proceed with surgery or alternative options; and

421. Physiotherapy notes would likely have impacted upon critical findings with respect to the timeline of the plaintiff’s symptoms in the years following the surgery.

422. Given the faded memories of the witnesses involved in this case, the loss of such material seriously impacts the Court in making findings on the balance of probabilities. Without those records, the Court has to rely upon incomplete documentary evidence in combination with the evidence of witnesses who have limited independent recollection and who have reconstructed events with the benefit of hindsight.

423. Both presumptive and actual prejudice has been suffered by the defendant. In my opinion, the trial has been unacceptably unfair in all of the circumstances. For that reason, it would not be just and reasonable to order that the limitation period be extended and the plaintiff’s claim fails on that basis alone.

424. The remainder of this judgment is prepared against the possibility that my conclusion as to the limitation period is wrong.

Liability

Statutory Framework

419. Part 1A of the Act contains the provisions setting out the statutory framework for actions in negligence.

420. Division 2 sets out principles with respect to duty of care and contains ss 5B and 5C, which are reproduced below:-

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence—

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

421. Division 6 of the Act applies to actions against persons practising a profession, and is headed “Professional negligence”. It contains ss 5O and 5P, reproduced below:-

5O Standard of care for professionals

(1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

5P Division does not apply to duty to warn of risk

This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service.

422. The defendant also relied on s 5I of the Act. It provides:-

5I No liability for materialisation of inherent risk

(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.

423. Section 5I provides that a person is not liable in negligence for harm suffered by another person as a result of a materialisation of an inherent risk, defined as a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. In Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 (“Paul v Cooke”) at [52], Leeming JA observed that if a case can be decided under s 5I it should be resolved under that section. Once s 5I is engaged there can be no liability for a failure to exercise reasonable care and skill.

424. The plaintiff’s pleadings were framed in a manner which addressed ss 5B and 5C with respect to the totality of the defendant’s treatment of her. However, putting to one side the failure to warn case, that is not the correct approach in a case where s 5O is applicable. The principles in a case where s 5O is applicable to some or all of the conduct of a defendant were recently noted by Lonergan J in Polsen v Harrison (No. 8) [2023] NSWSC 764 at [415]-[421].

425. First, her Honour set out the approach of Brereton JA (White and Meagher JJA agreeing) in Dean v Pope [2022] NSWCA 260 at [273] (following Basten JA in Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 at [17] and [18] (“Sparks”), which is as follows:-

“[273] … as Basten JA explained in Sparks v Hobson, s 5O once invoked effectively provides the applicable standard of care:

‘[17] Despite the common acceptance of the provision as a “defence”, that characterisation gives rise to difficulty. To be a defence carries the implication that the plaintiff must establish breach according to the general requirements of s 5B of the Civil Liability Act, following which the practitioner bears the burden of establishing that his or her conduct amounted to “competent professional practice” in the terms of s 5O(1). The heading of the section (“Standard of care for professionals”) indicates its purpose. Although the heading is not part of the Act, it may be taken into account as extrinsic material in construing the provision, in accordance with s 34(1) of the Interpretation Act. In any event, it is tolerably clear that the provision sets a standard. However, if the standard is met, it follows that the conduct was not negligent.

[18] Accordingly, once s 5O is invoked, arguably the general exercise required by s 5B becomes otiose. There can only be one standard against which to judge the conduct of a professional defendant, although that standard may depend upon the resolution of conflicting evidence called by the plaintiff and the defendant. It is only if one takes the plaintiff’s evidence in isolation that a two-stage process, involving the assessment of the plaintiff’s claim followed by assessment of an affirmative defence, will arise. However, in a practical sense, that is not how the dispute should be determined. Rather, a judgment will be given based on all of the evidence. Nor is the exercise helpfully clarified by speaking of shifting burdens of proof. The question for the trial judge is ultimately whether the plaintiff has established that the conduct of the defendant failed to comply with the relevant standard of care.’”

426. Second, at [416]-[417] her Honour explained that such an approach was consistent with the textual analysis conducted by Leeming JA (Ward P and Basten JA agreeing) in Paul v Cooke at [41], and she quoted Leeming JA’s further articulation of the rationale behind “why the proper approach is that s 5O provides the standard and that analysis under s 5B is consequently otiose, and diverting analysis to s 5B, instead of ending the inquiry with s 5O, can lead to error” in South Western Sydney Local Health District v Gould (2019) 97 NSWLR 513; [2018] NSWCA 69 (“Gould”) at [126]-[129] (Basten and Meagher JJA agreeing).

427. Third, her Honour noted the two pre-requisites of an opinion addressing s 5O as set out by Basten JA in Sparks at [89], which are:-

428. “the opinion addresses the conduct as found at the trial”; and

429. “the evidence supports the view that the expressed opinion was, at the time of the conduct, “widely accepted in Australia”.

430. It is not necessary to reproduce her Honour’s helpful explanation of those principles in full. It is sufficient to state that I respectfully adopt her Honour’s summary with regard to the approach of the Court in a case where s 5O is pleaded.

431. Therefore, I must apply s 5O in respect of the plaintiff’s pleaded case (apart from the plaintiff’s failure to warn case which is addressed separately below).

Sections 5O and 5I

Plaintiff’s submissions

430. The plaintiff’s submissions were predominantly framed to address ss 5B and 5C with respect to the totality of the defendant’s treatment of her. Those submissions did not meaningfully assist the Court with its task under s 5O.

431. Peculiarly, the section of the plaintiff’s written submissions headed “Duty of Care and Breach”, which also included the only two sentences squarely addressing causation, took up little more than a page. The submissions were unfortunately imprecise and did not substantially clarify the plaintiff’s position, but I have endeavoured to summarise them below.

432. The plaintiff contends that the treatment of her condition by surgery was not appropriate. Instead, it was contended that the defendant ought to have:-

433. not operated;

434. prescribed conservative management; and

435. advised the plaintiff to cease vigorous sporting activities.

436. It was submitted that there was a high risk that the surgery would fail, and that the universal consensus between the experts was that conservative management was required before embarking upon surgery. It was further submitted that by September 1999, the plaintiff ought to have been advised that the surgery was unsuccessful and that she needed to adopt a more conservative approach to her life in order to preserve her back.

437. The plaintiff’s submissions with respect to s 5O of the Act focused on the defendant’s reasons for performing the surgery, and his beliefs about what the surgery might achieve and the likelihood and effects of a failed fusion. In particular, there was a focus on the defendant’s evidence that one of the reasons he performed the surgery was to remove the “rattler” as the source of the plaintiff’s back pain. The evidence from the experts did not establish on the balance of probabilities that the “rattler” was likely the source of the pain, or that it was likely necessary to remove it as part of the plaintiff’s treatment. I put this to one side as it is not strictly relevant to the issues under s 5O of the Act.

438. The plaintiff further submitted that, to the extent that the plaintiff was permitted to cease using her brace and return to hockey about 8 weeks post-surgery, this was not regarded as good practice by Dr Hopcroft, Dr Drnda or Professor Dan.

439. Dr Hopcroft and Dr Drnda expressly stated that this was not good practice. With respect to Professor Dan, I reproduce the relevant part of the transcript as follows:-

“CRANITCH: If in fact, as we know, this girl was permitted (a) to cease using her brace and (b) to go back to hockey albeit on a training basis after a period of only eight weeks post fusion, would that be regarded as good practice in orthopaedics?

…

WITNESS DAN: I, I would be more conservative but I, I don’t think that returning there did any harm.

CRANITCH: I’m not asking you that. Would it be regarded as good practice?

WITNESS DAN: Borderline.”

437. Mr Cranitch did not enquire as to what Professor Dan meant by the word “borderline”. In the circumstances of all of his evidence, I understood Professor Dan to intend to convey that he thought the practice could be described as good, but that it was on the edge of that description.

Risk of Harm

438. The plaintiff ultimately submitted that the risk of harm comprised multiple risks, as follows:-

439. The performance of an unwarranted and unnecessary non-instrumented posterolateral fusion upon the plaintiff with removal of loose L5 laminae surgery created a risk of injury including the failure to achieve a fusion;

440. The failure to advise the plaintiff following surgery that fusion had not been achieved carried with it a risk of injury; and

441. Advising the plaintiff that she could return to hockey training, playing hockey and then competitive hockey on 12 May 1999, being 8 weeks after the surgery and in the absence of any fusion carried with it a risk of injury.

442. In relation to the risk of harm, the defendant reformulated the plaintiff’s characterisation as follows:-

443. The general risk of surgery, which includes the risks of general anaesthetic, infection and other general surgical complications;

444. The risk of disrupting the mechanics of the plaintiff’s spine such that she would be left in a worse position than if she had not had the surgery;

445. The risk of failing to achieve fusion of the bone/non-union; and

446. The risk of the surgery causing ongoing back pain for the plaintiff.

447. It is uncontroversial that the relevant risk of harm for the purpose of s 5B is the risk which is said to have materialised when the plaintiff was injured: Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 at [53] per Sackville AJA.

448. With respect to the general risks of surgery, the defendant submitted that none of those risks eventuated and that the asserted risk of harm falls away. With respect to the disruption of the mechanics of the spine, the defendant submitted that the evidence does not support a finding that such a risk materialised, and drew the Court’s attention to evidence of the plaintiff’s effective recovery and return to hockey, completion of tertiary studies and work in her chosen field. Counsel for the defendant emphasised the opinions of Dr Drnda (that the prospect of intraoperative damage was speculative) and Dr Dalton (that the plaintiff has followed the trajectory that he would ordinarily see in someone with the plaintiff’s condition).

449. With respect to the risk of a failed fusion, the defendant submitted that this is not indicative of a failed surgery and does not amount to “harm” per se. As to the risk of the surgery causing ongoing back pain for the plaintiff, Mr Downing observed that the plaintiff’s resolution of her lower back pain and the prevention of a further slip was in fact an excellent functional outcome for the plaintiff.

450. The defendant’s position is that the proper characterisation of the risk of harm is the risk that bony union might not be achieved and that it might lead to ongoing and/or worsening low back pain and/or slip progression. The defendant submitted that the plaintiff did not suffer any, or any significant, back pain in the years following her surgery, and did not seek treatment until 2018. In his submission, the plaintiff’s circumstances reflect the natural evolution of her condition.

451. I adopt the defendants characterisation of the risk of harm and his conclusions about the plaintiffs clinical course, which accord with the findings previously expressed in this judgment.

Expert evidence

445. With respect to the experts, the plaintiff submitted that:-

446. Dr Andrew Kam’s views ought to be discounted on the basis that he assumed that there has been no intervening episodes of pain between the original surgery in 1999 and the further consultation with the defendant which occurred in 2019. I observe that I have already found that the plaintiff made no significant complaint about lower back pain from the time of the surgery to about 2018;

447. Professor Dan’s views ought to be viewed in light of his paediatric practice having stopped by 1999, and that he would not operate without first prescribing significant conservative treatment and not unless there was the presence of neurological dysfunction. I observe that this mischaracterises Professor Dan’s evidence (to which see above and below);

448. Professor Dan regarded the practice of conducting fusion in the circumstances as “at least borderline good practice”, whilst Dr Hopcroft and Dr Drnda agreed that it was not good practice. I note I have serious reservations about Dr Hopcroft’s evidence in particular;

449. It was clear from the joint report that had the plaintiff’s condition been left alone, it would have improved significantly with age. I observe that this mischaracterises each of the joint reports; and

450. Dr Dalton’s view “appears to have been” that she should always have had conservative treatment. I note that Dr Dalton was not qualified to give evidence on breach of duty, and indeed only gave evidence on causation.

451. I do not accept that the plaintiff could be described as having had intervening episodes of low back pain between the original surgery in 1999 and 29 April 2018 for reasons set out in my findings above. Dr Kam’s view was that if the plaintiff’s condition had been affected by the surgery or the advice to return to hockey, the plaintiff would have experienced ongoing episodes of lower back pain much closer to the surgery and/or her return to hockey. Any lower back pain which occurred between 29 April 2018 and the plaintiff’s consultation with the defendant on 20 February 2019 did not affect his analysis.

452. I understood the plaintiff’s submission that Professor Dan’s views be discounted was in relation to the issues of breach only (it is difficult to see how the plaintiff’s argument could relate to his views on causation, although this was not explicitly indicated either way). In that regard, it is important to note that Professor Dan was by far the most experienced expert in respect of the performance of spinal surgery, including paediatric spinal surgery. In the circumstances, I do not accept the plaintiff’s submission that his views should be discounted on the basis that his paediatric practice had ceased by 1999, bearing in mind his significant and extensive experience in spinal surgery at the time the surgery was performed.

453. With respect to point 3 in paragraph [444] above, Professor Dan did not regard the practice of conducting fusion in the circumstances as “at least borderline good practice”. In fact, Professor Dan used the term “borderline” in answer to Mr Cranitch’s question about using a back brace and going back to hockey 8 weeks post-fusion. In any event, his evidence in relation to the fusion surgery was to the effect that he would have recommended more conservative management. However, I did not understand Professor Dan to suggest that it was unreasonable for the defendant to have performed the surgery in the circumstances of this case. On multiple occasions throughout his evidence, Professor Dan emphasised that the decision to operate, or to recommend surgery as an option, is multifactorial. That decision is not only dependent upon the physical condition of the patient, but also takes into account the patient’s clinical presentation and the wishes of the patient and her parents.

454. I reject the plaintiff’s submission that the joint report demonstrated that had the plaintiff’s condition been “left alone”, it would have significantly improved with age. The evidence taken at its highest does not demonstrate this to be the case.

455. As to Dr Dalton, his views were taken into account to the extent that they were relevant to causation only. I set out below extracts of Dr Dalton’s exchanges during concurrent evidence, as it is necessary to consider his responses in context on that point:-

“DOWNING: … Can I then move to what I’m going to call the million dollar question to each of you, which is if you assume that the plaintiff had not had the surgery and she’d been conservatively managed, to what extent do you believe her presentation with low back and associated symptoms now would be any different?

….

WITNESS DALTON: A couple of points. One of the things is that when you see an adolescent with a grade 1 spondylolisthesis, one of your concerns is to not have progression of the slip. SO if one, if we agree that the fusion didn’t, didn’t happen, and she ended up with a grade 1 spondylolisthesis which she would have had in any event, she’s had a very good result, in the sense that it hasn’t slipped further, she hasn’t had as much degenerative change at L5/S1 which you often see in these patients, so from a radiological point of view and structural point of view she’s actually had a very good result. Regardless of the fact that the fusion didn’t take.

…

I think that the outcome – again I go back to what I said before – if you look at what her back pain is like now and having examined her, my point is that if you look at the progression from 1999, crystal ball gazing, I would have loved for the plaintiff to have embarked on a really comprehensive, much more specific core stability program, which I still believe would really be of benefit.

So I don’t see this as a, as a deteriorating condition that’s just going to decline inevitably. I think that there’s potential for treatment. But I also think we’re all speculating as to what’s actually causing her back pain, and I don’t think it’s simply the structural changes that we’re focusing on.

DOWNING: Then to just come back to where I started, assume that she hadn’t had the operation and she was conservatively managed?

WITNESS DALTON: I think she’s followed a pattern which I would see with someone with that condition, and if she hadn’t had the surgery she would have had a grade 1 L5/S1 spondylolisthesis left untreated, or treated conservatively, and I think she’d have ended up in the same position if she’d followed the same pattern of activity in the way she’d managed things and the pregnancies and everything else.

…

CRANITCH: Dr Dalton, I take it then that ignoring the surgery, that had she had appropriate conservative treatment, without the surgery, she would be in a better position now than she would have been because she would have had back strengthening exercises and the type of conditioning that you’ve set out at great length in your reports?

WITNESS DALTON: Well except that I think – again the history I got from, from the plaintiff, was that she actually progressed well and got back to playing representative hockey and was doing well, so the back pain progressively, again based on the history that I received in my review of the records, it was deteriorated later in life. So a more effective conservative program in the early stages may not, may not have made any difference. I’m really talking about the recommendations for someone presenting as I saw her and what I feel would be of benefit.

…

CRANITCH: … What I’m suggesting to you is that she would have been in a position where she would have had managed L5/S1 spondylolisthesis grade 1? In other words, occasional flare-ups, generally leading a pretty normal life without constant pain?

WITNESS DALTON: Well this goes to the same point, that the reality is that the symptoms got worse and when they started to get worse is a question for consideration. But there’s no doubt that her symptoms progressively got worse from the time that she started having children and all that involved. I don’t necessarily think that having done a – and the problem is I think patients, and particularly hypermobile females clear – often get worsening of their symptoms regardless of having done exercise, and you’ll often see them, they do Pilates and then the pregnancy comes and then things get worse.

So I don’t believe that having done a comprehensive conservative program early on in the piece would have changed the outcome down the track. I think the shame is that when the symptoms started to get worse during pregnancy, and at that time, it would have been of some benefit. But I don’t think doing the conservative treatment back in 1999 in those early years, would have changed the outcome later on, because I think the same risk factors would have arisen in any event.

…

HIS HONOUR: Let’s assume for argument’s sake Dr Dalton that the plaintiff had undergone a course of treatment that you actually do recommend and we will talk about on another day, and that she had continued that, following that, your suggestions, throughout her life until after her fourth child. Do you think today she would have the symptoms that she says she’s experiencing?

WITNESS DALTON: I think there’s, I think there’s a chance that, I think that she would likely be better if she had maintained that approach. I’m not saying it would have – it wouldn’t have got rid of the back pain, and I go back to the same thing, we don’t know what’s causing the back pain, but I believe that – yes, I think that if the focus had been on stability and strength and addressing some of the issues I talk about, I think she’d be in a better position.”

(emphasis added)

451. The plaintiff’s submission that Dr Dalton’s evidence appears to have been that the plaintiff should always have had conservative treatment is in my opinion reductive and misguided. When considered in the context of the whole of his evidence on this issue, Dr Dalton’s view was that attributing the plaintiff’s pain to any particular part of the defendant’s treatment, or any other factor unrelated to the defendant’s treatment, would be speculative. His view was that a treatment program such as he recommended, that being a recommendation “for someone presenting as [he] saw her” over 20 years after the defendant’s treatment of her, would have been helpful if implemented at an earlier stage. That view does not provide any significant support for an argument that the defendant’s failure to recommend conservative treatment caused the injuries and/or disabilities the subject of her claim.

Defendant’s submissions

452. The defendant submitted that the Court should consider the application of s 5O of the Act as setting the relevant standard of care, and that it is not necessary to apply s 5B.

453. In written submissions, Mr Downing summarised what he argued were the five limbs of the plaintiff’s claim, in accordance with the pleadings and particulars provided by the plaintiff:-

454. Neither the plaintiff, nor her parents, were given proper advice as to the risks she faced in undergoing the surgery. In that regard, the plaintiff alleged that she and her parents should have been warned that surgery was simply unwarranted and contra-indicated and she was not a suitable candidate for surgery;

455. The defendant was negligent in performing the surgery (at all) because it was unwarranted and contra-indicated;

456. The defendant was negligent in damaging the L4/5 facet and in failing to stop the performance of the surgery once he removed the loose lamina at L5;

457. The defendant failed to advise that the only appropriate form of management for the plaintiff was conservative management, comprising a structured program of physiotherapy, hydrotherapy, gym and swimming under the supervision of a qualified and experienced physiotherapist, vertical traction with abdominal and back bracing exercises and/or regular still water swimming. The conservative management program should also have included the advice that the plaintiff should permanently cease hockey and any vigorous sports; and

458. The defendant should have prohibited the plaintiff from returning to any form of hockey at the 12 May 1999 post-operative review consultation.

459. The defendant acknowledged that s 5O does not apply to the plaintiff’s failure to warn case. However the defendant ultimately submitted that this claim was misconceived and the claim was in fact that it was negligent to proceed with the surgery at all. It was submitted that there was no support from the expert evidence for the proposition that the plaintiff should have been warned of the matters she particularises. I agree that the failure to warn case as pleaded is subsumed by the alleged negligent performance of the surgery because it was unwarranted. Furthermore, there is no evidence to support the failure to warn case.

460. With respect to the expertise of the expert witnesses on breach, the defendant submitted that Professor Dan’s relevant experience far exceeded that of Dr Hopcroft and Dr Drnda. Counsel for the defendant noted that Dr Hopcroft had never performed back surgery, that he has never operated on a paediatric patient with a spondylolisthesis and “has literally no relevant expertise in respect of the operation which is at the heart of this case.” That is clearly correct, and I put very little weight on his evidence. With respect to Dr Drnda, counsel noted that he has never performed fusion surgery in paediatric patients and the only paediatric spinal surgery he has performed was in Bosnia and Herzegovina many years ago. He sees perhaps one to two teenage patients with a spondylolisthesis each year, and directs them all towards conservative management. By contrast, Professor Dan had a significant spinal practice in Sydney for over 40 years and was in active clinical practice at March 1999. Although he had ceased his paediatric neurosurgical practice by that time, he had engaged in such practice over many years.

461. The defendant submitted that, guided by the approach in Sparks and Gould, the Court should accept the evidence of Professor Dan as reflective of peer professional opinion as to what constituted competent professional practice in paediatric spinal surgery at the relevant time. I accept that, where Professor Dan, Dr Hopcroft and Dr Drnda provided different opinions in relation to the performance of the surgery and advice in the months before and after the surgery, Professor Dan’s view is to be preferred. Professor Dan’s relevant experience far exceeded that of Dr Hopcroft and Dr Drnda.

462. With respect to the experts’ opinions on specific issues, the defendant submitted that Professor Dan’s views should be preferred by the Court. The defendant submitted that Dr Hopcroft’s view that the appropriateness of the surgery depended upon the plaintiff having a grade 2 spondylolisthesis lacked nuance. It was submitted that Dr Drnda acknowledged that grade 1 spondylolisthesis with low back pain might be a basis to operate where the pain was progressive, unremitting and not responding to conservative management. Dr Drnda’s view that surgery was normally only performed if the slip was greater than 50% and there was also radicular or neurological deficits should be discounted, the defendant submitted, on the basis that it does not accord with well-established medical literature. Professor Dan’s opinion, which the defendant contended should be accepted, was that deciding whether to operate on a patient in the plaintiff’s clinical circumstances requires consideration of multiple factors, including the degree of slip, the patient’s symptoms (including the persistence of pain and whether the pain can be readily controlled through treatment), the impact of the patient’s symptoms on daily function and the wishes of the patient and his or her parents. In my opinion, Professor Dan’s view about a decision to operate is well founded. I have taken into account all three experts’ views on this issue, but I accept the defendant’s submissions.

463. In relation to the allegation that the defendant negligently damaged the L4/5 facet, the defendant submitted that Dr Hopcroft’s views should be given no weight due to his lack of experience. I agree. It was submitted that Dr Drnda ultimately accepted that it was a matter of pure speculation, and that Professor Dan’s explanation should be preferred, that it was anatomically very unlikely that the L4/5 facet joint would be damaged through the surgery. I accept Professor Dan’s opinion.

464. With respect to the allegation that it was negligent to have failed to stop the surgery once the loose lamina at L5 was removed, counsel for the defendant submitted:-

“There is simply no evidence at all to suggest that once the defendant removed the ‘rattler’, he should have ceased the surgery. No questions were addressed to this proposition during the joint reports or oral joint evidence.”

460. Mr Downing’s submission is correct.

461. As to the allegation that the only appropriate form of management was conservative management, Mr Downing submitted that it was proper for Dr Hillier to take into account the wishes of the plaintiff and her parents in performing the surgery. It was submitted that the cessation of hockey and any vigorous sports was simply never going to occur noting the plaintiff’s evidence (and to a degree, Ms Leah’s evidence). I agree. The plaintiff attended Dr Hillier in search of treatment that would enable her to continue to play hockey at a competitive level.

462. The defendant submitted that, taking into account the plaintiff’s complete clinical circumstances as at 12 May 1999, including her keen desire to return to hockey, advising the plaintiff that she could gradually return to hockey commitments was acceptable. Mr Downing emphasised that Professor Dan was the only expert with actual clinical experience in this scenario and he acknowledged that there are “shades of grey” in this particular clinical situation, whereas the plaintiff’s experts refused to contemplate any circumstances in which a gradual return to activity would have been acceptable. I entirely agree with this submission. At 12 May 1995, it was noted by Dr Hillier that the plaintiff was “fully active” and wished to “recommence sport now”. In all of the circumstances, I am satisfied that Dr Hillier’s actions on this date were reasonable.

463. Counsel for the defendant maintained that the plaintiff’s claim should be dismissed pursuant to s 5O.

464. It was submitted that s 5I does not arise for consideration if it is accepted that the plaintiff would never have proceeded with the surgery had she been appropriately advised and warned of the associated risks. It was also submitted that s 5I had no work to do if the defendant’s arguments with respect to causation were accepted (to which see below). The defendant submitted that there was always a risk of graft failure in performing the surgery, and that neither of the plaintiff’s experts suggested that there was something about the defendant’s bone grafting technique which was deficient or in some way increased the prospects of non-union occurring.

465. In my opinion s 5I does not apply for two reasons. First, the defendant’s arguments with respect to causation are made out (see below). Second, the experts all agreed that the relevant inherent risks of surgery included haemorrhage, infection, death, neural damage and cerebrospinal fluid leak. None of those risks materialised. Therefore, s 5I has no application in the present case.

Determination

466. Despite the plaintiff’s extensive particulars of negligence alleged against the defendant, her case can be broken into the various limbs into which the various particulars respectively fell. I understood those limbs to accord generally with those put by the defendant in counsel’s written submissions, but I would define the allegations of negligence broadly as follows:-

467. Advising surgery as a treatment option and performing the surgery (particulars 2-10, 15-19, 21-24 and 26-27);

468. Failing to advise the plaintiff and her parents of the risks of the surgery (particular 1);

469. Performing the surgery in a manner which harmed the plaintiff by reason of the defendant’s negligent performance of it (particulars 25 and 28);

470. Failing to recommend a particular comprehensive conservative management programme instead of the surgery, including core strengthening exercises, inversion table, vertical traction, abdominal and back bracing exercises, and/or regular still water swimming, and potentially to counsel the Plaintiff to permanently cease playing hockey, competitive hockey and/or vigorous sports (particulars 11-14, 30-31); and

471. Failing to maximise prospects of fusion taking place following the surgery (particulars 20 and 29, 30-31).

472. As I have indicated, there is overlap between some of the particulars of negligence and the five limbs outlined above.

473. The third limb which relates to the defendant’s performance of the surgery can be dismissed quickly. The experts speculated as to the source of the plaintiff’s current pain and whether damage at the L4/5 facet joint occurred during the surgery or whether the harm was caused by the removal of the loose lamina at L5. The comments, insofar as they related to anything the defendant did or did not do during the surgery and the effect thereof, were purely speculative as counsel for the defendant noted in written submissions. That the defendant performed the surgery in a negligent manner was not proved on the balance of probabilities.

474. The second limb, the plaintiff’s failure to warn case, can also be dismissed quickly for reasons alluded to in the defendant’s submissions. In answer to the defendant’s request for further particulars dated 25 May 2022, the plaintiff’s solicitors stated that she and her parents ought to have been warned of “…the risk of the surgery failing in circumstances where… [t]he surgery was unwarranted”. I note that the plaintiff’s solicitors listed other risks of which they alleged that the plaintiff and her parents ought to have been informed. However, I accept the defendant’s submission that the plaintiff’s failure to warn case is ultimately misconceived in circumstances where the substance of the allegation is in fact that the surgery should not have taken place at all. I take that view in light of the focus on this issue at trial and in submissions, and the lack of evidence of the failure to cross-examine on a pure failure to warn case. Furthermore, if the surgery was unwarranted and the defendant failed to inform the plaintiff of the risk arising from that, a finding that the defendant was negligent because he ought to have informed the plaintiff of the risk of the surgery failing in circumstances where the surgery was unwarranted is plainly illogical. The appropriate finding in such circumstances would be that the defendant was negligent for performing unwarranted surgery. That allegation therefore fails. I now turn to the allegation as put by the plaintiff in the first limb of her case.

475. I note that Professor Dan’s evidence was that the range of treatment options included both conservative management and fusion surgery. I accept his opinion, and note that he believed that the choice would be influenced by the plaintiff and her parents’ desire for her to return to hockey. Dr Hopcroft and Dr Drnda believed that fusion surgery was not an appropriate treatment option until conservative management was completely exhausted, and that a second opinion should have been obtained prior to surgery. None of the experts would have themselves recommended the surgery in the circumstances, but Professor Dan was aware of a number of people who (in about 1999) had the surgery at the plaintiff’s age. Professor Dan did not think that the surgery was contraindicated but agreed that a period of expectant management was appropriate. I observe that Dr Hillier attempted a period of such expectant management, but the plaintiff and her parents were anxious for surgery in the hope of her returning to hockey.

476. Professor Dan and Dr Drnda believed that it was possible to achieve a fusion, whereas Dr Hopcroft did not (but he does not perform spinal surgery). Dr Hopcroft and Dr Drnda indicated that the surgery was unlikely to provide a therapeutic benefit, whereas Professor Dan stated that it was possible to obtain therapeutic benefit. Mr Downing made forceful submissions in relation to discounting Dr Hopcroft and Dr Drnda’s views as to whether surgery was indicated in the circumstances. I have accepted those submissions and prefer Professor Dan’s evidence which placed emphasis on the importance of a holistic consideration of the plaintiff’s clinical circumstances including her desire to return to hockey as being the chief reason for her presentation.

477. Between July 1998 and her first attendance with the defendant on 12 February 1999, the plaintiff had attended no less than 14 sessions of physiotherapy which she accepted were likely related to her lower back symptoms. She then underwent facet joint injections on 18 February 1999 which were not helpful. The expert evidence suggested that relief from those injections would have been apparent at least by the time the plaintiff returned to the defendant on 3 March 1999, but she did not report that they provided relief. The plaintiff was referred to further physiotherapy and she attended two sessions before returning to the defendant on 3 March 1999. In truth, the plaintiff had already had a period of expectant management.

478. Although I have noted that I prefer Professor Dan’s view where it is at odds with Dr Hopcroft and/or Dr Drnda, the Court’s task is ultimately to assess whether in accordance with s 5O the defendant acted in a manner that, as at February-March 1999, was widely accepted in Australia by peer professional opinion as competent professional practice. In advising the surgery as a treatment option and performing the surgery in the circumstances following a period of expectant management including physiotherapy prior to the plaintiff’s presentation to the defendant, I find that the defendant acted in such a manner. I make that finding on the basis of the opinions and treatment history set out above, and noting my treatment of the liability experts’ evidence respectively.

479. There was some discussion at trial about whether or not Professor Dan is a peer for the purposes of s 5O. Surprisingly, there is no authority on that particular question. I have given that question much thought. Professor Dan and Dr Hillier performed spinal surgery at the same time and on similar patients in the 1990s. Whilst Professor Dan was and remains a neurosurgeon, in my view for the purpose of establishing whether Dr Hillier, an orthopaedic surgeon, acted in a manner that in 1999 was widely accepted in Australia as competent professional practice, Professor Dan was capable of providing such an opinion.

480. Given my finding that the defendant, in performing the surgery following a period of expectant management acted in a manner which satisfies s 5O, a finding that a particular comprehensive conservative management programme ought to have been recommended instead of the surgery would be contradictory. As a result of that finding, the fourth limb of the plaintiff’s case, that the defendant failed to recommend a comprehensive conservative management programme instead of the surgery, effectively falls away. Nonetheless, if the Court was required to determine this particular issue, the defendant’s submission that neither expert for the plaintiff “suggested that such a specific program of physiotherapy was the one and only regime that needed to be prescribed for the plaintiff” has force. As noted above, the plaintiff had regular oversight and treatment from a physiotherapist with respect to her lower back and had received facet joint injections which did not assist her.

481. A further difficulty with this limb is that it was not clear what treatment ought to have been recommended by the defendant. In that regard, I note the particulars in the 3FASOC as follows:

“The Plaintiff pleads particulars of negligence and breach of duty of care, including:

…

k. failed to recommend conservative treatment.

l. failed to recommend conservative treatment or to conservatively treat the Plaintiff instead of the surgery via core strengthening exercises, inversion table, vertical traction, abdominal and back bracing exercises, and/or regular still water swimming, and to counsel the Plaintiff to permanently cease playing hockey, competitive hockey and/or vigorous sports.

m. failed to implement a proper structured course of non-surgical and/or conservative treatment.

n. failed to implement a through (sic) structed (sic) programme of physiotherapy, hydrotherapy, gym, and swimming supervised by a qualified and experienced physiotherapist.”

477. It is not possible from the evidence adduced at trial to ascertain what conservative treatment the plaintiff ultimately alleged ought to have been recommended, only that the plaintiff argued that it should have been something other than that which was in fact recommended. In light of my finding in relation to the first limb of her case, the plaintiff’s fourth limb must fail.

478. As to the fifth limb, failing to maximise prospects of fusion taking place following the surgery, I am at a loss to understand how the plaintiff ultimately put her case. No evidence was adduced about what the defendant ought to have done to “maximise prospects”, and neither Dr Hopcroft or Dr Drnda suggested that there something about the defendant’s bone grafting technique was deficient such that it increased the prospects of a non-union. The fifth limb must also fail.

479. As to the failure to warn allegations, to which s 5O allegedly does not apply, in my opinion, properly characterised they are allegations that the surgery was negligently performed (to which s 5O does apply).

480. Against the possibility that thai I am wrong about s 5O, in my opinion Dr Hillier was not negligent in failing to take precautions against a risk of harm as the provisions of s 5B(1) are not met, taking into account the factors in ss 5B(2) and 5C.

Causation

Statutory Framework

481. Section 5D(1) of the Act is a statutory restatement of the “but for” test of causation: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [18]. The determination of factual causation requires the plaintiff to prove that he would not have suffered the particular harm, but for the defendant’s negligence.

482. Sections 5D and 5E of the Act provide:-

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5E Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Plaintiff’s submissions

483. The totality of the plaintiff’s written submissions on causation was as follows:-

“Further as set out at paragraph 25 in the context of the Plaintiff’s post-operative symptoms, in cross-examination the Defendant agreed that a failed fusion was likely to cause pain and further, hamstring injuries (which the Plaintiff did complain of post-operatively (see T.451) may relate directly to spondylotic changes (T.1085). Thus, for the reasons set out above, causation is established (per s 5D of the CLA).”

484. Mr Cranitch briefly elaborated on his written submissions in argument.

Defendant’s submissions

485. The defendant submitted that the plaintiff has not made out her legal and evidentiary burden of proving causation for five overarching reasons, as follows:-

486. The evidence points overwhelmingly to a finding that if the plaintiff had been advised as she claims she should have, she would not have pursued conservative management but instead would have chosen surgery;

487. The evidence does not demonstrate that any injury was suffered intraoperatively;

488. It seemed at points during the cross-examination of the defendant and his causation experts that the plaintiff maintained a secondary argument that when she has attended practitioners in respect of her cervical spine and thoracic spine symptoms over the years since March 1999, those symptoms in fact emanated from the lower back. The defendant submits that this proposition should be rejected;

489. While it is accepted that the 11 March 1999 surgery failed to achieve bony union, the Court will be satisfied that the plaintiff nonetheless achieved an excellent functional outcome, which was the ultimate aim of the surgery; and

490. The Court would accept the proposition, with which the plaintiff’s causation experts, begrudgingly and perhaps unwittingly agreed, that the return to hockey made no long-term difference to the plaintiff.

Determination

486. The lack of report of any symptoms in the several years following surgery demonstrates on the balance of probabilities that there was no damage to the left facet joint. Indeed, the plaintiff achieved an excellent functional outcome. Her symptoms resolved and she was able to resume hockey and lead an active life until the onset of lower back symptoms in about 2018. Adopting the views of Dr Dalton, set out in detail above, the plaintiffs current symptomology reflects the natural course of the very condition she had in 1999, i.e. a symptomatic grade 1 spondylolisthesis. The plaintiff has failed to prove on the balance of probabilities that anything the defendant did or failed to do caused her any harm.

487. The plaintiff’s case also fails on the question of causation.

Damages

488. In the event that I am wrong about liability, I turn to an assessment of damages had the plaintiff succeeded. I make the following assessment on the basis that the plaintiff had proved that the alleged negligence caused harm i.e. that she had lower back pain from soon after the surgery which has become debilitating in recent years.

489. The plaintiff relied on a Further Amended Statement of Particulars filed on 23 May 2024 and the plaintiff’s Schedule of Loss and Damage as amended.

490. It is trite law to say that if a plaintiff can prove that harm has been caused by a tortfeasor, the plaintiff is entitled to damages reflecting her reasonable, as opposed to optimal needs. In this case, there are some disputes about causation of harm and the plaintiff’s reasonable needs assuming causation is made out.

491. As to the plaintiff’s reasonable needs, I observe that in Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649, the High Court considered the method of assessment of damages in a motor vehicle case involving a plaintiff who was rendered quadriplegic. In that case Barwick CJ said, at 661, that “the question is not what are the ideal requirements, but what are the reasonable requirements of the plaintiff”, and at 662 that “the sum to be awarded in compensation is not calculable by any mathematical process. At best it is and must remain a matter of judgment”. In arriving at judgment on those issues, a court “must hearken to all of the evidence including the opinions of medical practitioners but, having done so, to come to its own conclusion on the question, not being bound to any opinion, however expert or apparently expert any witness expressing it may be”: see Moran v Nominal Defendant [2008] NSWSC 804, where the principles were briefly collected by Hislop J at [38].

Non-economic loss

492. The principles with respect to the awarding of non-economic loss damages are well known.

493. What then is the extent of Ms Briggs’s non-economic loss? An award of non-economic loss is an evaluative judgment: see Clifton & Ors v Lewis [2012] NSWCA 229 per Beazley JA at 33. Section 16 of the Act speaks of the court determining "a most extreme case". The interpretation of those words in the decisions of Dell v Dalton (1991) 23 NSWLR 528 and Southgate v Waterford (1990) 21 NSWLR 427 (“Southgate”) (considering the like provision of s 79 of the Motor Accidents Act 1988) is therefore relevant.

494. In Southgate, the Court of Appeal held that the amount to be recovered as damages for non-economic loss is not to be calculated in accordance with common law principles up to the statutory maximum. The Court suggested the following three-stage process by which it would be appropriate for a trial judge to approach the question of apportionment of non-economic loss:

495. consider and make findings on the elements in the evidence which are relevant to non-economic loss, being those relevant to an award of general damages;

496. conceive a (not the) most extreme case (which the court noted would certainly include quadriplegia); and

497. award damages between nil and the statutory maximum in the ratio which the judge determines, keeping in mind that the maximum is retained for "a most extreme case”.

498. In Coleman v Barrett [2004] NSWCA 27, Gzell J said at [63]-[65]:

“Non-economic loss is defined in the Civil Liability Act 2002, s 3 as pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. Section 16(3) is like the Motor Accidents Act 1988, s 79A. It requires a judge, if the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, to determine the severity of the non-economic loss as a proportion of the non-economic loss of a most extreme case. It has been said that the task under such legislation involves reaching a point where further reasoning is impossible and it is necessary to make a determination which is insusceptible to entirely logical exposition (Southgate v Waterford (1990) 21 NSWLR 427 at 442) and that the assessment of general damages is an evaluative process in respect of which minds may reasonably differ (Woolworths Ltd v Lawlor [2004] NSWCA 209 at [14]). Nonetheless, the statute requires a comparison to be made of the non-economic loss suffered by a plaintiff against the non-economic loss in a most extreme case. The statute does not require the comparison to be made against the most extreme case imaginable. In Kurrie v Azouri (1998) 28 MVR 406 at 413, Sheppard AJA said: "The expression `a most extreme case' requires some discussion. It enables one to provide oneself with a yardstick as to what the legislature had in mind. A court considering the question will need to contemplate what in practical terms is embraced by `a most extreme case'. Immediately one considers such a case, one thinks of cases of quadriplegia, perhaps some serious cases of paraplegia, cases of serious brain damage and, perhaps, some cases of extremely serious scarring and disfigurement caused, especially to young children, by scalding or burning. No doubt there are others."

496. See also Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [5] and generally Hall v State of New South Wales [2014] NSWCA 154 per Leeming JA.

497. The plaintiff is currently 41 years of age. She has a life expectancy of approximately 87 years of age. She has approximately 46.5 years ahead of her (multiplier 958 on the 5% tables). Whilst the plaintiff’s age is relevant to the assessment of non-economic loss, it is only one of many factors: Reece v Reece (1994) 19 MVR 103; Varga v Galea [2011] NSWCA 76 at [73].

498. The parties, by agreement, tendered a joint statement of agreed position with respect to the opinions of the psychiatrists retained by the plaintiff and the defendant. The agreed diagnosis is set out at [1]-[4] of that statement:

“1. The plaintiff’s current recognised psychiatric illness (current psychiatric condition) is an adjustment disorder, either with anxious and depressed mood or with depressed mood.

2. The plaintiff’s current psychiatric condition fluctuates and is worse during the colder months.

3. The plaintiff often experiences tiredness by the end of a day.

4. The aetiology of the plaintiff’s current psychiatric condition is multi-factorial, with the impact of her lower back pain and associated symptoms being one contributing factor.”

499. With respect to the plaintiff’s urological condition, it was submitted that Dr Costello’s opinion, that it could not be ruled out that the surgery had caused a neuropraxia which impacted upon the plaintiff’s bladder function, ought to be accepted. The defendant submitted that the plaintiff’s claim with respect to urinary incontinence should be wholly rejected on the basis that there were no contemporaneous reports and that any incontinence experienced is unrelated to the surgery. I cannot accept that there is any nexus between the surgery and the plaintiff’s bladder function. No contemporaneous records support such a finding.

500. The plaintiff claims non-economic loss at 60% of a most extreme case, or $457,000. The defendant submitted that the appropriate allowance for non-economic loss is $175,000.00, based on the plaintiff being assessed at 30% of a most extreme case. The defendant emphasised that the plaintiff had a good functional outcome and the objective, contemporaneous evidence suggests the plaintiff has generally managed well.

501. I allow 33% of a most extreme case or $251,500.

Past out-of-pocket expenses

502. The plaintiff submitted that she should be awarded $21,234.50 in past out of pocket expenses in accordance with her schedule of out of pocket expenses which was provided to the court. Two expenses were not claimed on that schedule, being two physiotherapist appointments on 11 and 13 September 2002 which were related to the plaintiff’s hand. The figure listed above is exclusive of those expenses.

503. The defendant accepted that the total treatment expenses incurred amount to $3,646.80. Like anything else, when out-of-pocket expenses cannot be agreed they must be proved on the balance of probabilities. The plaintiff has failed to prove on the balance of probabilities that the sum she claimed was caused by the infirmities she alleges are related to the defendant’s negligence. I allow only the sum agreed, $3,646.80.

Future out-of-pocket expenses

504. The plaintiff claims future expenses as set out in her Schedule of Loss and Damage as follows:-

505. Occupational therapy:-

(a) 8 hours of assessment at $180.00 per hour; (b) 4 hours of education and instruction at $180.00 per hour;

2. Pilates:-

(a) 2 classes per week at $59.00 per class; (b) Reformer machine for $6,526.00 replaceable every five years; (c) Servicing costs at $200 per year;

3. Hydrotherapy:-

(a) 1 session per week at $83.30 per session; (b) Hydrotherapy aids at $335.09 per year;

4. Physiotherapy:-

(a) Weekly for 1 year at $166.30 per session; (b) Monthly sessions thereafter;

5. General practitioner:-

(a) 6 visits per year at $100.00 per visit.

505. In their joint statement in respect to psychiatrists, the parties agreed reasonable future treatment for the plaintiff consists of:-

506. One consultation with her general practitioner for referral to a clinical psychologist ($75.00);

507. 10 sessions with a clinical psychologist ($2,800.00 total);

508. Trial of anti-depressants ($10 to $20 per month for as long as the plaintiff takes anti-depressants); and

509. Consultations with her general practitioner for anti-depressant management and further scripts as applicable ($75.00 per session).

510. The plaintiff in submissions further particularised her position with respect to psychiatric expenses, claiming that she is entitled to a trial of anti-depressants for a period of not less than 24 months ($480.00 total) with quarterly management by a general practitioner ($600.00 total). Thus, her total claim for future psychiatric treatment is $3,955.

511. With respect to future treatment, the defendant contended that $14,000.00 is an appropriate allocation on the basis that there was agreement between the experts that the plaintiff would benefit from psychological treatment and a targeted core stability exercise program, which may also involve a multidisciplinary component, including education, physiotherapy and Pilates.

512. Future equipment costs were agreed at an upper limit of $7,973.88. I note that there was no cross-examination of the rehabilitation specialists or occupational therapists.

513. I allow $25,000 as a global sum for future out-of-pocket expenses including psychiatric review, equipment, physiotherapy and occupational therapy.

Economic loss

510. The plaintiff did not press a claim for past economic loss.

511. As to future economic loss, the plaintiff submitted that it was common ground that she was not fit for fulltime work. She submitted that she “suffers from chronic pain of an intractable nature which makes it difficult for her in day to day activities and limits her ability to have gainful employment over a normal working life.” Her claim was originally said to be “in the order of $350,000”, later specified to be $462,529.04 in a schedule of economic loss.

512. The plaintiff’s calculation was based on one period of part-time work for 13 years throughout the duration of her youngest child’s schooling (from 42 years to 55 years old) and another period of full-time work for 12 years once her youngest child finishes his schooling until retirement at age 67. The plaintiff calculated her loss based on average full-time gross weekly earnings of a social worker being $1,829.00 and provided a net figure claimed of $970.00 per week. I note the correct net weekly figure, based on the current 2025 tax brackets, is in fact $1,420.26 (see the current 2024 edition of Assessment Handbook of Furzer Crestani Forensic Chartered Accountants). Junior counsel for the plaintiff provided a copy of an assessment of the Australian Taxation Office “Tax withheld for individuals calculator” but this did not explain how the figure of $970.00 was arrived at. I assume a net weekly figure of approximately $1420. Superannuation was claimed at 14.64%.

513. The defendant submitted that the plaintiff may suffer some periods of reduced capacity to work in the future which would warrant a buffer of up to $150,000.

514. In my opinion, this is an appropriate case for a buffer. On the assumption that it is probable that the plaintiff will be unable to work for periods amounting to 2 years, I allow approximately 2 years of a social worker’s salary ($150,000) plus superannuation ($21,000) or $171,000.

Past and future assistance

515. Past gratuitous care was agreed at $162,893.42. Future domestic assistance was agreed at $195,000.

516. Had the plaintiff been successful, I would have assessed the plaintiff’s damages as follows:

Non- economic loss: $ 251,500.00

Past out-of-pocket expenses: $ 3,646.80

Future out-of-pocket expenses: $ 25,000.00

Past gratuitous care: $ 162,893.42

Future economic loss $ 171,000.00

Future care: $ 195,000.00

TOTAL: $ 809,040.22

Disposition

517. I make the following orders:

518. Verdict and judgment for the defendant;

519. The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order; and

520. Liberty to apply on seven (7) days notice if further or other orders are required, including as to costs.

521. The exhibits and subpoenaed material are to be returned forthwith. Any exhibits returned must be retained intact by the party or person who produced that material until the expiry of the time to file an appeal or until any appeal has been determined.

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Amendments

18 November 2025

Correcting formatting of case law authorities.

19 November 2025

Correction to pinpoint citation in [495]; Correction to formatting of block quotations citing case law authorities.