Matters not in evidence
[91] First, the rhetorical question can be posed as to why would someone proceed to surgery if there is an alternative conservative option for which the evidence in the literature is inconclusive as to whether there is a better outcome by way of either initial reduction surgery or conservative treatment?
[92] Secondly, accepting that the hospital should have sent Mr Chester for orthopaedic review or advised it and/or requested his general medical practitioner to make such a referral, and even if it is assumed that either or both Dr Lim and Dr Taylor would have referred Mr Chester for orthopaedic review in mid August/early September 2009 if so directed by the hospital, it is not known to whom that referral could or would have been made and if made, with what result.
[93] If it is assumed that the referral might have been made to Ms Pratsis or Mr Openshaw in nearby Bunbury or to another orthopaedic surgeon, if any, employed at a Bunbury hospital or any other orthopaedic surgeon in Bunbury, it is not known what opinion Ms Pratsis or Mr Openshaw or such employed or other surgeon held as to conservative treatment versus surgery, both in the general sense and in what they might have recommended for Mr Chester, given his personal circumstances. Ms Pratsis was not called as a witness. Mr Openshaw is now deceased. There was no evidence from other orthopaedic surgeons, if any, employed in hospitals or in private practice in Bunbury.
[94] Dr Taylor's opinion on treatment may have been shaped by his interest, or by past experience, in injuries of this kind and by way of past referrals to, and advice from, Ms Pratsis and Mr Openshaw or other orthopaedic surgeons in Bunbury, or elsewhere. It might be that Dr Taylor would refer a patient to a surgeon with views sympathetic to his own. These matters were not examined in evidence. Nor was there any examination with a view to demonstrating that Dr Taylor did or did not have an interest in, or the relevant experience to deal with, an injury of the kind Mr Chester suffered. Professor Skirving indicated that a general medical practitioner might have such an interest or experience and therefore be able to determine appropriate treatment.
[95] Likewise, there is no evidence whether a public patient, such as Mr Chester, could have received immediate or early reduction surgery in any event. This is the case even if the Busselton Regional Hospital referred Mr Chester directly to a Bunbury hospital. It might well be the case that the Busselton emergency department doctors knew that Bunbury hospitals do not have an orthopaedic department and that they therefore left the need for Mr Chester's orthopaedic review to his usual general medical practitioner to be determined two weeks later when swelling had settled. Further, it is not known if an emergency department doctor can make a referral to an orthopaedic surgeon in private practice, given that the emergency department will cease to monitor that patient.
[96] Mr Slinger did say that immediate treatment could be obtained the same or the next day for this kind of injury once the decision was made to operate. However, this was not qualified by evidence to show that such early treatment was available to a public patient, either in Bunbury or Perth. Further, Professor Mountain was not able to comment on the placement by Mr Openshaw of Mr Chester on a semi‑urgent list and said that it would be necessary to ask Mr Openshaw the reason for that.
[97] Dr Taylor's surgery records show that on 12 August 2009, Dr Lim provided Centrelink claim forms to Mr Chester.
[98] On 7 December 2009, Mr Openshaw placed Mr Chester on a 13 month public waiting list. It took an unknown period of time from before 21 January 2010 for Mr Chester to borrow funds for surgery. Ultimately he was able to do so and that surgery proceeded on 24 February 2010. It is not known whether he would have been able to raise funds from his brother or anyone within an approximate one month period from his original injury so as to become a private patient for early reduction surgery.
[99] Mr Chester's personal and financial circumstances of being a public patient without ready funds for privately funded surgery and probably being unable to raise funds within a limited time all lead to the inference of him not being able to proceed with that early surgery. This would, in any event, have left him requiring later the reconstruction surgery, which he ultimately had, with good result.
[100] Even if Mr Chester had been able to raise funds and had consulted an orthopaedic surgeon by mid‑August or even late August/early September 2009, it cannot be assumed that, if then offered the reduction surgery, he would have accepted it. Given his financial circumstances, the probable requirement to repay borrowed money, the inconclusive evidence in the medical literature as to the likelihood of a better or quicker result from surgery and the risks of surgery, he may not have been persuaded, at that time, to undertake the risk of surgery on borrowed funds.
[101] These matters all needed to be advised to, and discussed with, him so as to enable him to make an early, fully informed consent to any proposed surgery. The fact that immediately following his injury these matters were not discussed with him by an orthopaedic surgeon does not now mean that he would have elected to proceed to surgery, have been able to raise funds for that surgery without delay, and even if he did so elect and could raise funds for it, that such surgery would have been more successful than his reconstruction surgery.
[102] Further, it is not known what type of reduction surgery might have been offered to Mr Chester. It is not disputed that some types of such surgery did not provide good results.
[103] There is a lack of evidence pointing to a probable better outcome from reduction surgery in the event of it having happened. Professor Skirving advised that surgery is not always successful. There are risks with surgery. Mr Slinger only said there could have been a better result from early reduction surgery and if undertaken, then a full reconstruction and tendon graft might possibly have been avoided, but no one procedure is necessarily effective.
[104] Mr Slinger referred to the numerous types of surgery available, which indicates that no one procedure is necessarily effective. Mr Alexeeff agreed, but said that a good result was open with appropriate conservative treatment, with surgery being a fall back. If surgery failed, then conservative treatment would not be an option.
[105] Finally, once early September 2009 had passed without surgery, any later surgery was inevitably by way of a reconstruction and that is what occurred in February 2010. In January and June 2011, X-rays revealed Mr Chester's left shoulder AC joint to be normal. The reconstruction surgery which was ultimately performed provided a good result, at least in terms of anatomical presentation under X-ray.
The motor vehicle crash - 20 November 2011
[106] Complicating matters is the fact that on 20 November 2011, Mr Chester was involved in a motor vehicle crash in which his principal injuries were to his left hand. Relevantly however, contemporaneous X-ray evidence revealed he also suffered a 'widening of the left AC joint, with slight inferior subluxation of the left acromion'. At that time, he complained of left shoulder pain. This therefore leads to a further AC joint injury from the motor vehicle crash.
[107] Mr Slinger was consulted about this crash but, Mr Chester failed to advise Professor Skirving and Dr Hammersley that he had been involved in it, yet he continued to consult them for further reports about his 2009 injury and its consequences. They only found out about the crash in the days leading up to the trial in this action.
[108] A CT arthrogram performed on 21 November 2012 revealed a tear in the left shoulder supraspinatus and labral detachment.
[109] Professor Skirving was unable to say whether Mr Chester's present symptoms are related to the original incident or to his motor vehicle crash. He thought that the partial supraspinatus tear might be the cause of Mr Chester's pain and that it could have been caused in the motor vehicle crash. Such a tear is not usually associated with a dislocation of the clavicle. He also thought the tear in the supraspinatus could simply be an incidental finding without symptoms. The difficulty is that the injuries to the supraspinatus and labrum have never been investigated.
[110] Mr Slinger said the supraspinatus tear was possibly caused by the crash. There is no way of knowing. Further, such tears commonly occur in labourers without symptoms and after injury. The tear might not be symptomatic and if there had been a subluxation after the car crash, then symptoms would last for six to eight weeks, following which there would be a full recovery.
[111] Dr Hammersley accepted that the supraspinatus and labral tears could have resulted from the motor vehicle crash. He could not rule out the tear as a possible explanation for Mr Chester's present pain. The labral tear does not normally provide symptoms in normal day to day life, but Mr Chester's plastering work could be an explanation, rather than the operation bed. Radiological investigation after the crash did not reveal any adverse feature in relation to the coraco‑clavicular reconstruction procedure. Dr Hammersley said this requires further investigation by a shoulder surgeon.
[112] Like Dr Hammersley, Mr Alexeeff thought the partial supraspinatus and labral tears were physiological findings frequently found in a plasterer. Mr Alexeeff said the tears were not part of the original injury or the motor vehicle crash.
[113] Mr Alexeeff thought that the labral injury which causes joint clicking is not part of the AC joint, but he was unable to say whether it is the cause of Mr Chester's pain. He found it to be significant.
[114] It can be seen that the consequences of the motor vehicle crash have never been investigated and their role in the causation of Mr Chester's ongoing shoulder pain and discomfort remains unclear.
Failure to immobilise the arm during August and September 2009
[115] Further complicating Mr Chester's recovery by way of conservative treatment is an apparent failure to have ensured that Mr Chester's arm was kept immobilised for the required period of between four and eight weeks post-injury until sufficient healing had occurred to enable physiotherapy to begin. On the evidence: