Dean v Pope - [2021] NSWDC 670 - NSWDC 2020 case summary — Zoe

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Dean v Pope

[2021] NSWDC 670

District Court of NSW|2020-12-11

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At a glance

Source facts

Court

District Court of NSW

Decision date

2020-12-11

Catchwords

[2007] NSWCA 335 Fox v Percy (2003) 214 CLR 118
[2003] HCA 22 Glen v Sullivan [2015] NSWCA 191 Graham v Baker (1961) 106 CLR 340
[1961] HCA 48 Leotta v Public Transport Commission of NSW (1976) 9 ALR 437
50 ALJR 666 Lowns v Woods (1996) Aust Torts Reports 81 - 376 McKenna v Hunter & New England Local Health District

Source

Original judgment source is linked above.

Catchwords

[2007] NSWCA 335 Fox v Percy (2003) 214 CLR 118[2003] HCA 22 Glen v Sullivan [2015] NSWCA 191 Graham v Baker (1961) 106 CLR 340[1961] HCA 48 Leotta v Public Transport Commission of NSW (1976) 9 ALR 43750 ALJR 666 Lowns v Woods (1996) Aust Torts Reports 81 - 376 McKenna v Hunter & New England Local Health DistrictSimon v Hunter & New England Local Health District [2013] NSWCA 476 Medlin v State Government Insurance Commission (1995) 182 CLR 1[1965] HCA 34 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330[2007] HCA 42 Rogers v Whitaker (1992) 175 CLR 479[1992] HCA 58 Rosenberg v Percival (2001) 205 CLR 434[2005] HCA 62 Water Board v Moustakas (1988) 180 CLR 491[1988] HCA 12 Watson v Foxman & Ors (2000) 49 NSWLR 315 Watts v Rake (1960) 108 CLR 158

Judgment (81 paragraphs)

[1]

Table of Contents Nature of case [1] - [3] Claim [4] Defences [5] - [6] Summary of outcome [7] Facts not in dispute [8] - [22] Central factual issue in dispute [23] - [28] Issues calling for decision [29] Evidence overview [30] - [35] Credibility and reliability of testimony [36] - [62] The plaintiff [42] - [52] Ms Marquardt [53] Consultant expert neurosurgeons [54] - [56] Dr Pope [57] - [62] Summary of Dr Pope's evidence [63] General overview of array of expert evidence category [64] - [72] First category - neurosurgeons [65] Second category - radiologists' opinions [66] - [69] Third category - other neurological opinions [70] Fourth category - forensic psychiatrists [71] Fifth category - miscellaneous damages reports [72] Evidence from expert neurosurgeons [73] - [100] First report of Professor Davis - 9 September 2019 [74] - [78] Second report of Professor Davis - 16 April 2020 (not read) [79] Third report of Professor Davis - 1 May 2020 (not read) [80] Fourth report of Professor Davis - 6 August 2020 [81] - [82] First report of Professor Sheridan - 27 May 2019 [83] - [87] Second report of Professor Sheridan - 27 April 2020 [88] - [89] Third report of Professor Sheridan - 29 May 2020 [90] - [91] Joint report - 9 June 2020 [92] - [93] Fourth report of Professor Sheridan - 3 August 2020 [94] First concurrent evidence session - 16 July 2020 [95] - [97] Second concurrent evidence session - 23 July 2020 [98] Third concurrent evidence session - 17 September 2020 [99] Fourth concurrent evidence session - 3 December 2020 [100] Reports from consultant radiologists [101] - [108] Report of Dr Bowden - 30 November 2019 [102] Report of Dr Jones - 30 April 2020 and 20 May 2020 [103] - [108] Reports from other neurosurgeon/neurological specialists [109] - [120] Report of Dr Bentivoglio - 16 October 2017 [110] - [115] Report of Dr Simon - 26 June 2019 [116] - [120] Issue1 - Findings on relevant factual matters [121] - [266] (1) Plaintiff's background circumstances [123] - [125] (2) Onset of significant symptoms [126] - [130] (3) Consultation with Dr Lam - neurosurgical referral to Dr Pope [131] - [134] (4) First consultation with Dr Pope - 15 October 2013 [135] - [158] (5) Investigations ordered by Dr Pope [159] - [161] (6) Second consultation with Dr Pope - 12 November 2013 [162] - [185] (7) Physiotherapy with Mr Kelly - 13 January 2014 [186] - [191] (8) Deferral of lumbar surgery in March 2014 [192] (9) Lumbar surgery by Dr Pope on 16 June 2014 [193] - [196] (10) Post-operative course [197] - [204] (11) Exacerbating incident - A fall on 25 August 2014 [205] - [207] (12) Continuing problems & further consultations with Dr Pope [208] - [215] (13) Second specialist opinion from Dr Steel [216] - [227] (14) Referral to Dr Simon [228] - [235] (15) Plaintiff's last consultation with Dr Pope - 12 August 2015 [236] - [252] (16) Thoracic surgery performed by Dr Steel - 15 September 2015 [253] - [254] (17) Further medical follow-up [255] - [258] (18) Plaintiff's residual problems [259] - [266] Issue 2 - Relevant risk of harm [267] - [269] Issue 3 - Duty of care, scope and content [270] - [274] Issue 4 - Defence pursuant to s 5O of CL Act [275] - [308] Issue 5 - Breach of duty of care and negligence [309] - [343] Issue 6 - Causation of harm [344] - [367] Issue 7 - Assessment of damages [368] - [396] Disposition [397] Orders [398]

[6]

Facts not in dispute

The undisputed background facts can be stated as follows.
The plaintiff, a surveyor, is presently aged 31 years. In September 2013, when he was aged 25 years, after experiencing a period of awareness of evolving sensory symptoms in his right lower limb over the course of some months, he consulted his general practitioner for those problems. His general practitioner referred him for CT imaging studies of his lumbar spine. Those tests were reported as revealing an annular tear of his L4/5 intervertebral disc. The plaintiff's general practitioner then appropriately referred him for neurosurgical assessment and management of those problems.
Pursuant to that referral, the plaintiff first consulted Dr Pope on 15 October 2013. No definitive diagnosis was made at that time, but Dr Pope foreshadowed that the plaintiff might ultimately have to proceed to surgery. Dr Pope recommended the plaintiff have a CT guided right sided S1 peri-neural steroid injection. On 21 October 2013, that procedure was performed by a radiologist. Ultimately, that procedure did not provide the plaintiff with significant or lasting relief from his symptoms. On 23 October 2013, at the suggestion of Dr Pope, the plaintiff also underwent an investigatory MRI study of his lumbar spine.
On 12 November 2013, the plaintiff consulted Dr Pope for a second time. Dr Pope considered the plaintiff's responses to treatment as well as the results of radiological imaging studies. He recommended to the plaintiff that he have physiotherapy. He subsequently also recommended to the plaintiff that he should have surgery to his lumbar spine for an L4/5 decompression, microdiscectomy, and nerve root rhizolysis.
The plaintiff was hesitant and afraid to have surgery. Initially, he deferred it, for that reason, and because he did not want to take more time away from his work. Ultimately, he consented to having the surgery recommended by Dr Pope.
On 16 June 2014, Dr Pope carried out the described procedures at Concord Hospital. Following that surgery, the plaintiff did not experience any material relief from his pre-operative symptoms. As a consequence of that surgery, the plaintiff began to experience some additional symptoms, including localised lower back problems, and gluteal pain, which he related to that lumbar surgery.
The plaintiff saw Dr Pope on a total of 11 consultations, two being pre-operative consultations, and nine being post-operative consultations.
The effect of the post-operative consultations was that Dr Pope recommended to the plaintiff that he continue with physiotherapy treatment, and that he observe lifting and carrying restrictions in his work as a surveyor.
By March 2015, the plaintiff was becoming increasingly concerned about the correctness of Dr Pope's pre-operative diagnosis in view of the continuation of his pre-operative symptoms. He therefore sought a further neurosurgical opinion. He consulted Dr Timothy Steel, who arranged for him to have another MRI scan to exclude the possibility of a sciatic nerve entrapment or piriformis syndrome. Dr Steel also arranged for the plaintiff to see Dr Neil Simon, a consultant neurologist, for further diagnostic evaluation and investigation of his symptoms.
The neurological and the further MRI investigations undertaken by Dr Simon involved a higher level of the plaintiff's spine. These investigations revealed the plaintiff had a large bony tumour, also described as an exostosis, that impinged upon and compressed his spinal cord at the level T5/6. A consideration of the accumulated results of subsequent investigations then revealed that tumour to be the cause of the plaintiff's original presenting symptoms for which he had been referred to Dr Pope.
The plaintiff claims that if, at the outset, Dr Pope had appropriately assessed, considered, and investigated his presenting signs and symptoms, this ought to have led to additional pre-operative neurological investigations of the kind undertaken by Dr Simon.
The plaintiff claims that the pursuit of a diagnostic pathway along those lines would in turn have led to an earlier diagnosis of the bony tumour at T5/6. He claims that in such circumstances, a different surgical procedure would then have been recommended and performed on his thoracic spine at the level T5/6, rather than the one which was carried out on his lumbar spine at the level L4/5, and this would have resulted in less deleterious consequences for him.
Aspects of the above summary of the undisputed factual background will be examined in greater detail in the course of identifying the factual findings that emerge from a closer examination of the evidence.
The harm claimed by the plaintiff is that he incurred a delayed diagnosis and delayed surgery in respect of his T5/6 spinal tumour. He claims such delays resulted in a progression of avoidable neurological damage, which would not have otherwise occurred had he received appropriate and timely treatment. He claims that the surgery to his lumbar spine was unnecessary. He also claims he has needlessly incurred the additional adverse effects of the lumbar surgery that was carried out at the level L4/5.
The consideration of those claims requires the analysis of a large bulk of extensive medical material and reports that will be referred to where it becomes relevant to do so.

[7]

Central factual issue in dispute

The central factual matter at issue in these proceedings in relation to the plaintiff's claim of negligence is whether his lower limb symptoms, as they were presented to Dr Pope, were adequately considered and investigated before Dr Pope proceeded to recommend and arrange L4/5 decompression, discectomy, and nerve root rhizolysis surgery on his lumbar spine.
The plaintiff seeks to make a case that Dr Pope had incautiously proceeded to lumbar surgery with undue haste, without beforehand arranging for a specialist neurological examination, and without first proceeding to consider and pursue a diagnosis that definitively explained the presenting right lower limb symptoms.
The plaintiff claims that if Dr Pope had proceeded with due caution, as argued, he should have been referred to a specialist consultant neurologist for assessment before surgery. He claims that if the suggested course had been followed, a consultant neurologist would most probably have conducted tests of the kind ordered by Dr Simon almost 2 years later, which would, at an earlier time, have revealed the plaintiff's problem to be a T4/5 spinal cord stenosis due to the growth of a bony tumour at that level, with less damaging consequences.
Both parties obtained expert evidence from consultant neurosurgeons on the question of whether Dr Pope had adequately discharged his duty of care to the plaintiff, and on the ensuing causation question. The respective opinions of those experts were in disagreement on the question of whether lumbar surgery was indicated for the plaintiff's symptoms that were presented to Dr Pope for his assessment and management.
The plaintiff retained Professor Gavin Davis, who in effect supported the claim that Dr Pope had inappropriately proceeded to surgery with undue haste and inadequate investigation. The defendant retained Professor Mark Sheridan, who supported Dr Pope's defence that he had acted appropriately, in exemplary accordance with peer professional practice.
The analysis and resolution of the areas of disagreement within the expert evidence is dependent upon a prospective interpretation and characterisation of the plaintiff's pre-operative presenting symptoms as they evolved, and how they were presented to Dr Pope, in conjunction with a consideration of the contemporaneously recorded medical histories that were provided by the plaintiff.

[8]

Issues calling for decision

A consideration of the pleadings, the evidence, and the submissions of the parties, indicates that the substantive issues which call for decision in this case may be conveniently identified as follows: 1. Findings on relevant factual matters concerning first, the identification of the nature and the extent of the plaintiff's pre-operative presenting problems as they evolved over time, and the related chronological events that then followed. My findings on those matters appear between paragraphs [121] to [266] of these reasons; 2. Identification of the relevant risk of harm within the meaning of s 5B of the CL Act. My findings on this issue appear between paragraphs [267] to [269] of these reasons; 3. Identification of the scope and content of the duty of care owed by Dr Pope. My findings on this issue appear between paragraphs [270] to [274] of these reasons; 4. The determination of whether, within the meaning of s 5O of the CL Act, Dr Pope has discharged the burden of proving the claim of a sheltering defence to the effect that his management and treatment of the plaintiff was in accordance with peer professional practice that was at the time widely accepted in Australia. That question is dependent upon which elements of conflicting expert evidence should be preferred to guide the determination of the related question as to what should be accepted as peer professional practice in the presenting circumstances. My findings on those questions appear between paragraphs [275] to [308] of these reasons; 5. The determination of whether, according to the analysis required by s 5B and s 5C of the CL Act, Dr Pope should be found to have relevantly breached the duty of care that he owed to the plaintiff. My findings on this issue appear between paragraphs [309] to [343] of these reasons; 6. The determination of whether, in terms of s 5D of the CL Act, any established breach of the duty of care owed by Dr Pope should be found to have relevantly caused the harm claimed by the plaintiff. My findings on this issue appear between paragraphs [344] to [367] of these reasons; 7. The assessment of the plaintiff's damages in respect of non-economic loss; past economic loss; future loss of earning capacity; post and future superannuation losses; future domestic assistance; future treatment expenses; and past out-of-pocket expenses. My findings on those matters appear between paragraphs [368] to [396] of these reasons.

[11]

The plaintiff

The plaintiff gave his evidence in what I considered to be reasonable and understated terms. He made many fair concessions where they were due on matters of uncertain recollection, and he did so without any apparent exaggeration.
I was left with the impression that the plaintiff gave his evidence taking due care to ensure factual accuracy. That said, he was vague in some of his descriptions in his oral evidence. I considered the substance of his evidence to be reliable, not inherently improbable, and capable of acceptance, subject to allowances that must be taken into account in assessing the potential impact of fallibility of memory. In that regard, the contemporaneous documentary materials take on some considerable importance.
In coming to those conclusions I have not overlooked the substantive matters that were raised in the defendant's challenges to the plaintiff's evidence, as were put in cross-examination to him.
The plaintiff was challenged on variations in the history he provided to Dr Pope on the different occasions he saw him, including with regard to the various responses he gave in answers to questions where he was asked to tick or circle options for answers in the Oswestry patient questionnaires he had completed.
I accept the validity of the plaintiff's answer to that challenge, to the effect that his varied responses reflected how he was feeling on the particular days when he was asked to address those questions: T131.35. For that reason, I accept his rebuttal of the suggestion that he had materially exaggerated his responses when filling out one of those forms: T156.25.
The plaintiff appropriately acknowledged that, on many questions, his recollection on some matters of detail was only limited: T119.45; T129.45 - T129.50; T130.36; T132.38; T139.7; T139.46; T140.3 - T140.12; T140.38; T150.19; T150.29; T152.50; T156.48; T163.49; T166.32; T167.45; T175.21; T181.16; T183.10 - T183.14; T190.22. He was challenged in cross-examination on a number of propositions as follows.
The plaintiff agreed (at T134.28 - T134.43), that in his instructions to one of his former solicitors, Stacks, from whom he had initially sought advice about this claim, he had said of his second consultation with Dr Pope, on 12 November 2013, that Dr Pope had given him advice as to the proposed surgery, which those solicitors had recorded in the following form: "You have a very small herniation at L5-S1 with no nerve impingement. There is a disc bulge. If you saw 10 different neurosurgeons, five would say you should have surgery and five would say you do not need surgery. There is 70 per cent chance of improvement with surgery and a 30 per cent chance something could go wrong. There's a possibility that the pain could be stemming from somewhere else but that is unlikely." [T134.19 - T134.25]
In that regard, the plaintiff adamantly maintained that Dr Pope had told him a majority of neurosurgeons would not operate on him in his presenting condition: T135.34 - T136.17; T137.1 - T137.17.
On that question, whilst Dr Pope accepted as uncontroversial, that there could well be surgeons who would operate in the plaintiff's presenting situation, whereas others would not, he did not accept the proposition that he had suggested to the plaintiff a majority of surgeons would not have operated in the presenting circumstances: T286.15 - T286.26. That evidence will be considered for its significance when determining the defendant's claim of the benefit of a defence pursuant to s 5O of the CL Act.
As to the plaintiff's recollection of discussions in consultations with Dr Pope, it was in effect put to him that his memory of events, as recounted in his evidence, was conveniently tailored to suit his case, a proposition that he convincingly denied: T126.26 - T126.37. I accept that denial, which was consistent with his focus in wanting to obtain professional medical advice to address and resolve his sensory problems that occupied his primary concern at those times: T127.4. I considered his evidence to be unembellished but it still needed to be assessed in terms of reliability on some matters in issue.
The plaintiff was cross-examined extensively on his pre and post-surgical travel to overseas destinations. In my assessment no adverse credit issues arise from that history of travel. In my assessment nothing of adverse credit significance emerged from the cross-examination of the plaintiff on any other of the damages issues.

[14]

Dr Pope

Dr Pope is a well-qualified neurosurgeon. He graduated with degrees in medicine and surgery at the University of Otago, in New Zealand, in 1996. He became a fellow of the Royal Australia College of Surgeons ("RACS"), in 2007. He was appointed as a consultant surgeon at Concord Hospital in 2008. In 2009 he pursued and completed a fellowship in Alberta, Canada, in complex spinal surgery. In 2009, on returning to Sydney, he resumed practice as a Visiting Medical Officer at Concord Hospital. He also established a co-extensive private practice. He saw the plaintiff at his Crows Nest rooms, in what he described as being a largely paperless practice.
At his first consultation with the plaintiff on 15 October 2013, Dr Pope made some brief notes in his personalised shorthand, which formed the basis of his dictated correspondence to the referring general practitioner, Dr Lam. With one exception on 12 August 2015, which will be referred to at a later point in these reasons, he made no further notes at his subsequent consultations with the plaintiff, and on those other occasions he dictated his correspondence by relying on his immediate recall after each consultation: T199.1; T253.43.
Understandably, given the nature and volume of Dr Pope's busy specialist neurosurgical practice, in which he has seen many patients over the course of the years that have passed since the events now in question, he said, and I accept, that he had no independent recall of his meetings with the plaintiff. That was so, except in respect of his last meeting with the plaintiff on 12 August 2015, which ended in unpleasantness.
Dr Pope's account of the detail of that latter event differed from the plaintiff's account. That exchange and those differences will be identified in closer detail in chronological context. Otherwise, Dr Pope's evidence was reliant upon the content of his contemporaneous clinical records and the associated contemporaneous correspondence to reconstruct the detail of his attendances on the plaintiff.
The material challenges made on behalf of the plaintiff to Dr Pope's evidence were interpretative in nature, namely, assertions as to what he should have done rather than as to what he in fact did in the course of his management of the plaintiff as his patient.
Dr Pope was challenged on the question of whether, on the occasion of his unpleasant encounter with the plaintiff on 12 August 2015, he had actually examined the plaintiff. The plaintiff claimed Dr Pope had not examined him on that occasion, whereas, Dr Pope claimed he did, and had made a note of the occasion: T284.29. The note was not in evidence. It may have been a dictated note. That matter was not further explored in the evidence. That is a factual matter to be examined.

[15]

Summary of Dr Pope's evidence

At this point it is convenient to summarise Dr Pope's oral evidence relating to the management of the plaintiff's condition, as follows: 1. He expanded upon the observations recorded in his initial handwritten notes: T199.34 - T201.19. Those matters were reflected in his correspondence to Dr Lam; 2. He explained that the plaintiff's sensory problems, as they were relayed to him by the plaintiff, had come on slowly, and had then progressively worsened in the month or so before that first consultation on 15 October 2013: T201.49 - T202.2; 3. He explained that at his 15 October 2013 consultation with the plaintiff, contrary to what was put to him in cross-examination, he had found a bilateral weakness in a relevant muscle group (the flexor hallucis longus), in addition to the described sensory complaints when he tested the plaintiff's spinal nerve roots that enervated his right leg, when he was considering those matters as part of the plaintiff's complex of complaints: T262.28 - T263.47. 4. He explained his method of examination, the detail of his physical testing of the plaintiff, and his associated questioning of him. He conducted his examination of the plaintiff through clothing, observing for signs of discomfort, and observing for elicited signs, such as muscle spasm, which were not noted in this instance: T204 - T208; 5. He looked at the plaintiff's pre-consultation CT scan which was taken from the level T12 down to the level of the lumbo-sacral spine. He described it as a standard and reasonable radiological investigation: T209.25; 6. He recorded his tentative clinical impression that the plaintiff had a recalcitrant (meaning prolonged) L5 radiculopathy, due to an L5/S1 disc herniation with chronic denervation. He decided to order investigations to verify that view: T211.7 - T212.50; 7. He ordered a steroid injection for the plaintiff for diagnostic purposes to see if his problem involved a nerve root. He said he wanted to see if this injection would benefit the plaintiff. He also prescribed medication, Lyrica as a neuropathic pain treatment: T212.30 - T213.1; 8. He ordered a lumbar MRI scan for the plaintiff and he interpreted the result as being consistent with his clinical findings: T215.20; 9. The fact that the cortisone injection he had ordered had given the plaintiff some symptomatic relief did not provide him with assurance that the radiologist had correctly targeted the L5 or S1 nerve root, and the fact that the plaintiff's relief was reportedly short-lived, indicated to him that the plaintiff's symptoms were coming from a nerve root in the lumbar spine: T218.34 - T219.8. Elsewhere, this was referred to as the pain generator site; 10. He evaluated the radiological interpretations of the imaging scans against his own interpretations of those scans and he determined that, having regard to the radiologically determined presence of an abnormality in the form of transitional vertebrae, the plaintiff had a disc bulge at the level L4/5. He said that this served to confirm his earlier working diagnosis: T219.30 - T220.48; 11. He had no actual recollection of what he told the plaintiff at the time of his first consultation but referred to his normal practice, which was to dictate the substance of the consultation and what was discussed at that time, in the form of a letter to the referring general practitioner, as was reflected in the correspondence in this instance: T221.48 - T222.5; Exhibit "B", Vol 1, pp 38 - 39; 12. He was cross-examined in some detail concerning the content of his first consultation with the plaintiff: T254 - T258; 13. It is plain from Dr Pope's correspondence to Dr Lam that he had discussed with the plaintiff the risks and benefits of surgery, and had referred to his view that early surgery provides better results: T222.44 - T223.3; 14. Dr Pope in effect rejected as unfair the suggestion put to him in cross-examination that, at the time of his first consultation with the plaintiff, he had "leapt" to his diagnostic conclusion for surgery without beforehand looking for alternative possibilities to explain the plaintiff's complaint of numbness in his right foot: T258.19 - T258.38. In context, I consider that characterisation was inapt, given that a period of some nine months had passed between that consultation and the date of the operation; 15. Dr Pope expanded upon his rejection of that proposition as was put. He stated that the clinical picture which he had before him was not substantial enough to justify further investigations of the plaintiff's spine at a higher level than at the lumbar level. In particular, he explained that his clinical finding of an uneven myotomal weakness in the plaintiff's legs had to be considered in the context that it was not a true reflection of strength testing because of the compounding factor of the presence of pain, which he had documented: T258.40 - T258.44. He said there were a number of symptomatic issues to consider in that context: T260.12; 16. It appears that one of those symptoms of relevance was the plaintiff's report of back pain, as was recorded by Mr Kelly, and which Dr Pope considered to correlate to disc disease, even though it may have been episodic and not constant: T286.47; 17. He explained the products of his examination of the plaintiff on 12 November 2013, as was set out in more detail in his letter to Dr Lam on that date: Exhibit "B", Vol 1, pp 43 - 44. He identified the positive sign of pain over the right buttock as serving to build the diagnosis of radicular or sciatic pain: T224.31. He said that this view was verified to him by the physiotherapy report identifying that the plaintiff had right-sided low back pain with pins and needles in the right foot, which supported the existence of a nerve root problem in the lower back. He said that this cemented in his mind the diagnosis that the plaintiff had a lumbar disc problem: T224.50 - T225.10. He did not see any inconsistencies arising out of Mr Kelly's physiotherapy report in that regard: T225.26; 18. Dr Pope's oral evidence that was directed at explaining the surgery he performed identified a number of pertinent features that expanded upon the operation report which he had prepared immediately following the surgery, whilst his registrar was closing the plaintiff's surgical wound: T232 - T236. In that context, he explained that he had found a disc protrusion, otherwise known as disc herniation, which was adherent to an annular tear, as was described in the pre-operative imaging report. He stated that his operative findings matched the pre-operative investigations, and were consistent with his pre-operative hypothesis or diagnosis of the plaintiff's problems: T236.11 - T236.19; 19. He explained that his normal practice was to review his patients post-operatively, at intervals of two weeks, six weeks, three months, six months, and 12 months: T238.35. In that regard, he stated that the plaintiff had missed his six week post-operative follow-up appointment: T238.45 - T239.14; 20. He was made aware that the plaintiff had experienced a fall at his work on 22 August 2014. Dr Pope confirmed his view that the fall in question had not exacerbated the back surgery, and he noted the fall produced symptoms which affected the left leg, not the right leg: T244.31. Subsequently, he also informed the plaintiff that the MRI scanning undertaken in March 2015 did not show he had piriformis syndrome, a matter that concerned the plaintiff: T248.7; 21. On 12 August 2015, Dr Pope referred the plaintiff to Dr Glen Sheh, a pain and rehabilitation specialist to see whether she could find any causes of the plaintiff's new complaints of sensory changes and losses that he was by then experiencing to the whole of his right leg: T252.45 - T253.2. A factual dispute emerged as to what occurred at that 12 August 2015 consultation. This will shortly be examined in some detail in chronological sequence in connection with Issue 1; 22. For clarification, Dr Pope was asked to identify the possible contraindications for the surgery he had recommended and performed on the plaintiff. His evidence on that subject was as follows: "Q. … the decision not to operate, what would mediate that sort of conclusion, in your professional thinking? A. If there was no correlation between the history, the physical examination and the imaging findings ruling out other differential diagnoses, then one may make the conclusion that operative management for this particular condition may not be warranted. It may not offer the patient benefit." [T270.14 - T270.20] 1. In cross-examination, it was suggested to Dr Pope that post-operatively, in the face of what was put to be the presence of clinical "red flags", and a chronic pain problem, he had closed his mind to, and had dismissed the possibility that, the plaintiff had an upper neurone problem that warranted further investigation at a higher level of the spine, not just at the lumbar level. That proposition was based on the opinion of Professor Davis. 2. In rejecting that proposition, Dr Pope said that post-operatively, he had dismissed the possibility of a problem existing at a higher level of the plaintiff's spine. He said it was clear to him that he was dealing with a localised lower neurone lower limb issue, with associated back pain accompanied by post-surgical spasm, and he felt any further and investigations higher up in the spine were not warranted in the circumstances he was considering: T279.12 - T280.1. He specifically rejected the proposition that there were post-operative "red flags" he ought to have recognised: T281.40; 3. Dr Pope further explained that post-operatively, and after the plaintiff's fall at work (on 22 August 2014), there was no indication to order a full MRI study of the plaintiff's spine that included the thoracic region. He said that whilst it would have been possible to order such a test, that suggested approach was not the way that specialists worked when applying the algorithms that applied in the practise of clinical medicine: T279.42 - T280.2.

[23]

First report of Professor Davis - 9 September 2019

The first report of Professor Davis, dated 9 September 2019, was preliminary in its nature: Exhibit "B", Vol 2, pp 195 - 215. Professor Davis reviewed the clinical notes of Dr Lam, Concord Hospital, Dr Steel, Dr Simon, and St Vincent's Hospital. He also reviewed a DVD that contained numerous medical imaging of the plaintiff for the period 2015 to 2017. After reviewing and commenting on that material he provided the following summary: "This young man presented to the neurosurgeon in 2013 with subtle but extensive symptoms and signs affecting the lower limbs, with radiological evidence of degenerative disc disease at L4-5 without significant neural compression at that level. The patient underwent surgical decompression at L4-5 without any significant improvement, and progressively deteriorated, albeit slowly, over the next two years until the neurologist identified a T9 clinical level which was subsequently confirmed as T5-6 spinal cord compression due to probable ossification of the ligamentum flavum." [Exhibit "B", Vol 2, p 200]
The report addressed questions that were structured and posed by the plaintiff's solicitor in an order which in my view suggested an inappropriate hindsight analysis rather than the required prospective analysis for determining liability issues in such cases: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124]. In my view, the sequence of those questions was misconceived and therefore the report in response is of limited analytical assistance on its own. I do not intend these remarks to be read as any kind of criticism of Professor Davis, who did his best to respond to the questions that were posed to him by the plaintiff's solicitor.
Those three questions were as follows: 1. Had an MRI of the thoracic spine been done by the defendant in 2013, would it have shown the lesion in the thoracic spine? That need(s) to be answered on a more than 51 per cent chance; 2. Were the symptoms experienced by the plaintiff in 2013 due to the thoracic lesion? That need(s) to be answered on a more than 51 per cent chance; 3. On the balance of probability, that is more than a 51 per cent chance, had our client had thoracic surgery in 2013, would he have had a better outcome?
Those questions do not correctly or sufficiently frame the issues to be determined in this case because they start from a hindsight premise.
Professor Davis addressed those questions by answering them as follows: 1. As to the suggestion of an earlier thoracic MRI, Professor Davis responded that the thoracic lesion was a calcification of the ligamentum flavum and was slow growing, probably over years. It would most likely have been identified in a thoracic CT and MRI scan if performed in 2013; 2. As to the suggestion that there were thoracic symptoms in 2013, Professor Davis responded that the plaintiff's presentation of symptoms to Dr Pope was subtle in 2013, and more diffuse than L5 radiculopathy. Further radiological investigations were warranted in view of Dr Pope's finding of bilateral weakness in the flexor and extensor hallucis longus muscles, which was indicative of T5-6 pathology. The analysis went on to draw upon the ex post facto findings of Dr Simon in 2015; 3. As to the suggestion of a better outcome from thoracic surgery if performed in 2013, Professor Davis responded that he had been provided with insufficient data to fully address this question. He identified the exercise as impossible: Exhibit "B", Vol 2, pp 201 - 202;

[27]

First report of Professor Sheridan - 27 May 2019

Professor Sheridan's first report, dated 27 May 2019, was prepared at the request of the solicitor for the defendant: Exhibit "B", Vol 2, pp 371 - 374.
The solicitor for the defendant provided Professor Sheridan with a very detailed letter of instruction which set out a chronology of events (at paragraphs 5 - 39), and it identified the assumptions that he was asked to make for the purpose of his analysis concerning Dr Pope's consultations and operative care of the plaintiff between 15 October 2013 and 12 August 2015 (at paragraphs 40 - 54; pp 378 - 387).
At paragraph 57, the letter of instruction to Professor Sheridan posed a series of eight questions in the series (a) to (k), which included further assumptions (at (e)(i)-(ii), (i)(i)-(iii) and (j)(i)-(vi)), to provide the structure for the preparation of his report.
The letter of instruction to Professor Sheridan also enclosed copies of the Expert Witness Code, the pleadings, three medical reports relating to the plaintiff, and a series of nine categories of relevant historical medical records relating to the plaintiff: Exhibit "B", Vol 2, pp 375 - 390.
It is plainly apparent that Professor Sheridan was carefully and properly instructed for the task the defendant's solicitor required of him. His report of 27 May 2019 was prepared in response to the questions posed in the letter of instruction. The report makes the following points in response to the questions asked of him: 1. Professor Sheridan considered that Dr Pope had performed an appropriate and thorough examination of the plaintiff and had documented his findings to an acceptable standard; 2. Professor Sheridan considered that the plaintiff's CT scan dated 28 September 2013 and his MRI scan dated 23 October 2013 demonstrated an L5/S1 disc bulge with right-sided lateral recess narrowing and nerve irritation consistent with the plaintiff's symptoms and Dr Pope's clinical findings; 3. Professor Sheridan considered that Dr Pope's clinical findings, combined with the imaging, namely the CT scan dated 28 September 2013 and the MRI scan dated 23 October 2013, were consistent with the plaintiff's history; 4. Professor Sheridan considered that Dr Pope's treatment plan as outlined was entirely appropriate. He said that the recommended course of conservative treatment, including injections and physiotherapy, was considered to be standard care in the plaintiff's situation; 5. Professor Sheridan was of the view that, given the absence of any complaint from the plaintiff of numbness on the right side (other than in his lower right leg), the investigations ordered by Dr Pope were appropriate to the plaintiff's clinical presentation. He said this was so given the findings on clinical examination, and the history that was provided, which all pointed to the existence of a lumbar pathology. In those circumstances, he explained that there were no symptoms, signs, or any other findings to suggest a need to look for a spinal cord compression elsewhere in the plaintiff's spine, especially as the plaintiff had exhibited no symptoms of spinal cord compression in either the cervical or the thoracic spine; 6. Professor Sheridan considered that in the period leading up to the plaintiff's lumbar surgery there was no indication of a need for him to be referred to a neurologist as all the signs and disclosed symptoms, and the imaging findings, were concordant, and well within the expertise of a neurosurgeon to diagnose and manage; 7. Professor Sheridan considered that at no time in the plaintiff's clinical contact with Dr Pope, did he indicate he had any symptoms consistent with a benign T5/6 exostosis. He considered that this turned out to be an incidental finding, unrelated to the plaintiff's symptoms (as they had been disclosed to Dr Pope) ; 8. Professor Sheridan considered that the plaintiff's present back and right leg complaints were due to his original injury. I take this to mean that they were due to the underlying condition which was presented to Dr Pope; 9. Professor Sheridan considered that the surgery performed by Dr Pope had no direct impact on the plaintiff's described genito-urinary problems or bladder dysfunction. He said these problems had no neurogenic cause, and the latter problem may possibly be related to pain, but not to the surgery carried out by Dr Pope; 10. [Adequately addressed in (i) above]; 11. Professor Sheridan considered that at the time Dr Pope provided his professional services to the plaintiff, his management of the plaintiff would be accepted by peers in Australia as competent professional practice. He said Dr Pope's initial assessment, his documentation, the requested imaging, the surgery itself, and Dr Pope's ongoing care, were all exemplary. He could find no aspects of Dr Pope's care to be worthy of criticism.

[28]

Second report of Professor Sheridan - 27 April 2020

On 27 April 2020, Professor Sheridan prepared a supplementary report to comment upon Professor Davis' report dated 9 September 2019: Exhibit "B", Vol 2, pp 353 - 354, with annexures at pp 355 - 390.
This supplementary report made the following points: 1. He was in general agreement with the report of Professor Davis subject to what follows; 2. Dr Pope's initial treatment plan, namely for injection and physiotherapy, was entirely appropriate; 3. The physiotherapy findings on 13 January 2014 of right-sided back pain with leg pain but no weakness were considered to support Dr Pope's findings on 15 October 2013; 4. The subsequently discovered T5-6 spinal cord compression did not cause pain and paraesthesia in the legs, it predominantly presents as weakness, ataxia and altered sensation; 5. The genito-urinary problems described by Dr Bowden were identified as a common symptom after low back surgery, disc protrusion, and nerve compression in the lower lumbar spine. In that regard Professor Sheridan did not diagnose cauda equina syndrome, which therefore cast doubt on an arguable causal connection; 6. The clinical signs of cord compression had not become obviously apparent until Dr Simon's examination, and they were not apparent when Dr Steel examined the plaintiff; 7. The one month delay between diagnosis of the plaintiff's thoracic symptoms and Dr Steel's thoracic surgery on 12 August 2015 is indicative that the degree of myelopathy was not considered to be severe, otherwise a more urgent intervention would have been required; 8. There were two co-extensive pathologies in play, first, a lumbar disc protrusion and associated nerve root compression, which was appropriately treated by Dr Pope, and secondly, an evolving T5-6 spinal cord compression which was treated appropriately by Dr Steel; 9. Professor Sheridan considered Dr Pope to have acted appropriately in accordance with the acceptable standards applicable to a neurosurgeon at the time, and he did not miss anything; 10. Professor Sheridan did not think the plaintiff has suffered any negative consequences from any delay in carrying out the thoracic surgery.

[31]

Joint report by Professors Davis and Sheridan 9 June 2020

The joint report of Professor Davis and Professor Sheridan that emerged from their meeting on 9 June 2020 addressed eleven agreed questions, with the following result: 1. Dr Pope's finding of bilateral weakness of the flexor halluces longus muscles, more on the right than on the left, is indicative of either bilateral nerve root pathology or unilateral spinal cord pathology, either at the lumbar junction, or potentially higher up in the spine: Exhibit "B", Vol 1, p 29; 2. The clinical information provided to Dr Pope on 15 October 2013 indicated there was insufficient information to confirm the likely cause of the plaintiff's complaints, as presented by him at that time: Exhibit "B", Vol 1, p 30; 3. On the question of whether, prior to the surgery performed by Dr Pope on 16 June 2013, there was any indication for the plaintiff to be referred to a neurologist, Professor Sheridan answered no, and Professor Davis answered potentially yes, because an element of doubt had remained about diagnosis, which merited further investigation: Exhibit "B", Vol 1, p 30; 4. Whilst Professor Davis considered that referral to a neurologist was reasonable, and further investigation was required to assist the surgeon to continue on the identified pathway before a definitive diagnosis could be made prior to surgery, and this may have led to a search for a different diagnosis, Professor Sheridan considered that course to be inapplicable: Exhibit "B", Vol 1, pp 30 - 31; 5. The experts agreed that the plaintiff's fall into a trench on 22 December (sic for August) 2014, had not contributed to his lumbar or thoracic spinal condition: Exhibit "B", Vol 1, p 31; 6. The experts agreed that the clinical signs, symptoms and examination findings of Dr Steel in respect of treatment were not contributory to a prospective analysis of the issues required to be addressed in this case: Exhibit "B", Vol 1, pp 31 - 32; 7. The experts agreed that Dr Ly's MRI report of 8 August 2015 correctly showed "cord compression with subtle oedema/early myelomalacia in the left hemicord, at T5/6." This was classified as clinically significant spinal cord compression with myelomalacia: Exhibit "B", Vol 1, p 32; 8. The experts were asked as to what they attributed the plaintiff's reported right leg symptoms. Whereas Professor Davis made the general statement attributing these to the later diagnosed thoracic tumour and spinal cord compression, Professor Sheridan said that, as at 2013, these should be attributed to lumbar disc problems, but in retrospect, he agreed that in light of what is now known, they were more likely due to the thoracic cord compression: Exhibit "B", Vol 1, p 32; 9. As to the most likely cause of the plaintiff's symptoms, as reported to Dr Steel on 5 November 2015, 15 December 2015 and 18 January 2016, Professor Davis considered these were most likely due to a combination of residual cord dysfunction from the thoracic tumour with some undefined contribution from lumbosacral mechanical degenerative disease, whereas, whilst Professor Sheridan was in general agreement with that formulation, he said the respective percentages for attribution remained unclear: Exhibit "B", Vol 1, p 33; 10. The experts were asked to consider the post-2015 contemporaneous medical records to indicate what if any myelopathic symptoms the plaintiff reported since T5/6 tumour resection and laminectomy on 15 September 2015. Professor Davis considered these to include right-sided hyper-sensory change, pain and genito-urinary dysfunction, whereas Professor Sheridan considered this to be limited to right hemi-sensory change, when the other symptoms might be due to ongoing lumbosacral dysfunction: Exhibit "B", Vol 1, pp 33 - 34; 11. The experts were asked to consider what outcome would have been expected if the plaintiff had the thoracic surgery performed by Dr Steel in 2015 carried out earlier, in 2013. The experts generally agreed it was more likely that slightly better spinal cord function would have resulted although this was impossible to quantify. Professor Sheridan added he believed (as he also explained in his oral evidence) the plaintiff's right leg pain would have been ongoing, and would not have been benefited from thoracic surgery: Exhibit "B", Vol 1, p 34.

[32]

First concurrent evidence session - 16 July 2020

The first concurrent evidence by Professor Davis and Professor Sheridan was on 16 July 2020: T294 - T347. The following matters of relevance emerged from that session: 1. Neurosurgeons are surgical neurologists. The background diagnostic training for these specialities is similar and there is a cross-over of functions. Neurosurgeons deal primarily with structural pathology whereas neurologists deal with functional matters including diagnosis in a greater range of diverse pathogies: T295 - T296; 2. In seeking a neurological or neurosurgical diagnosis the clinician will seek a concordance in the presenting picture in terms of what is most likely when looking for clinical explanations, and in that regard, heavy emphasis is placed on the history obtained from the patient, but even then, grey areas exist, and for a diagnosis, the clinician analyses the presentation using the confidence and experience gained from training: T297 - T298; 3. The question of whether a surgically treatable lesion is present is determined by assessing the history, the findings on examination, and an emergent concordance of those matters: T298; 4. Both experts agreed that whilst it is not a universal view, it is a commonly held view that when operating in the context of a detected annular tear, it is reasonable to incise the annulus and remove disc fragments within the disc space: T305.1 - T305.28; 5. Whilst Professor Davis did not see a correlation between the radiology and clinical findings in this case, and would have looked for an alternative explanation to a lumbar explanation before operating (T296.44; T297.1 - T297.7; T306.25), Professor Sheridan did not share that view as he considered the presenting picture justifiably fitted the course that was taken by Dr Pope: T297.10 - T297.27; 6. Whereas Professor Davis stated that one does not operate unless one hundred per cent convinced the surgery is clinically indicated, Professor Sheridan later stated that was imposing a too high standard: T306.37; 7. Both experts agreed that the plaintiff's ultimate back pains could have been contributed to by the back surgery: T307.10 - T307.26; 8. The effect of Dr Pope's 12 August 2015 comment that the plaintiff's complaint of sensory loss over the whole of his right leg made no sense only applies if one is considering a lumbar cause, but it made perfect sense if considering a cause emanating from a higher level in the spine: T308.44; T308.11. This supports the inference Dr Pope had dismissed the possibility of a higher cause at that time, as stated in his evidence; 9. In assessing the clinical sign of leg muscle weakness during an examination assessing whether or not an operable back problem exists, it is reasonable for the examiner to come to the conclusion that weakness detected on clinical examination would be due to pain rather that representing a true neurological sign (T327.14 - T327.21), recognising that there is some scope for variability and consistency between examiners and the occasions when examinations take place: T327.35 - T327.46. 10. There is no necessary equivalence between a neurological assessment of muscle weakness by a neurosurgeon and a physiotherapist. This is because the training for those two professions is different. This point could apply to the difficulty involved in making a comparison between Mr Kelly's findings and Dr Pope's findings. In making a diagnosis, a whole picture assessment is required: T327.47 - T328.32. 11. Professor Sheridan was satisfied that at Dr Pope's first consultation with the plaintiff (on 15 October 2013) the presentation pointed almost entirely to the presence of a lumbar pathology, in association with leg symptoms, and he would have taken the same diagnostic pathway as was taken by Dr Pope. He was of the opinion that this case fits exactly in the context that it represented "absolute bread and butter neurosurgery": T329.35. He said all elements added up sufficiently by the second consultation to justify the recommendation for surgery. In that sense, he thought Professor Davis' suggestion of a need for one hundred per cent certainty involved applying too high a standard; 12. In respect of that last point, Professor Davis argued that a slower pathway should have been taken towards surgery in the case of pain in the presence of a radiologically assessed small disc bulge absent MRI evidence of nerve root compression or spinal thecal compression: T330.39 - T331.3. Given that there was a 9 month interval, the suggested slower pathway was not further identified; 13. Accordingly, those two differing opinions and pathways have been clearly identified; 14. Both experts agreed that surgery of the kind discussed in this case should be the last option: T332.5; 15. Professor Sheridan was convinced that the plaintiff's presentation to Dr Pope on 15 October 2013 strongly fitted with assumed lumbar pathology rather that a thoracic cord compression in the context where diagnosis can never be one hundred per cent definitive: T340.16 - T340.25; T340.37; T340.44; 16. Professor Davis identified the fact that interpretation of MRI scans and the interpretation of indications for surgery in effect involve clinical judgment (T346.13), and in this instance, his practice would have been to step back, discuss the MRI interpretation with the radiologist, and look for another cause for the plaintiff's symptoms because to his mind, there was an insufficient correlation for surgery: T346.19.
At this first session significant time was taken up by counsel for the defendant needing to raise and correct a number of matters within the joint report where some of those matters took the plaintiff's representatives by surprise. These were matters that should have been attended to by the defendant well before the trial.
The first concurrent expert evidence session went beyond the time estimate and did not proceed to a completion of the evidence because of Professor Davis' professional commitments, which required that another date be found.

[33]

Second concurrent evidence session - 23 July 2020

The second concurrent evidence by Professor Davis and Professor Sheridan was on 23 July 2020: T355 - T381. The following matters of relevance emerged: 1. Professor Sheridan commented that if there is a history of lower back pain, leg symptoms and decreased range of movement in the lower back the overall picture would indicate a lower back problem and it would make one quite comfortable with the notion that the pathology is in the right place and that in such a clinical setting one need not look further for other causes: T357.42 - T357.49; 2. Professor Davis explained that spinal cord compression can present with variable signs at different times, and although the exact mechanism is not clearly understood, there is definitely a degree of variability, including due to fatigue during the examination: T359.15; 3. Professor Davis agreed that pain can be a confounding factor that can be a variable in an assessment, even in the presence of focal neurology such as muscle weakness: T359.36 - T360.10; 4. Much of this session related to the interpretation of pain symptoms in a Level 4 evidence category observational study in an academic paper of limited relevance to this case on the question of the reasonableness of Dr Pope's decision to operate on the plaintiff: T360 - T365; 5. Professor Sheridan was referred to his earlier opinion, as stated in his report dated 27 May 2019, wherein he stated that Dr Pope's management of the plaintiff was exemplary. Here, he added that after reading Dr Pope's evidence in these proceedings, his opinion remained unchanged: T368.9 - T368.22; 6. A question arose as to the interpretation of dynamic images comprising the lumbar MRI scans. This question was flagged for further attention from the experts: T371.6 - T371.22. This resulted in Professor Sheridan producing his fourth report, dated 3 August 2020: Exhibit "2", which is summarised at paragraph [92] above; 7. Professor Davis stated that it was the responsibility of the surgeon to look at the MRI images and form his own conclusions, as the decision to operate rests with the surgeon, irrespective of the views of respected radiologists: T372.1 - T372.22; 8. Professor Davis commented on the radiological request of Dr Jones, stating that it contained an error of anatomical description in that the reference to annulus pulposis instead of nucleus pulposis. Professor Davis agreed that it appears Dr Jones had incorrectly conflated his description: T375.30 - T376.2; 9. The distinction between nerve root irritation caused by a chemical process and nerve root compression due to a mechanical process are both recognised as potential contributors to pain: T376.7 - T376.26; 10. The experts explained that nerve irritation due to leakage or extrusion of disc material or the nucleus pulposis is due to chemical contact rather than physical pressure: T379 - T381.

[40]

Report of Dr Bentivoglio - 16 October 2017

One of the former firms of solicitors whom the plaintiff had consulted for advice about this claim, had obtained a neurosurgical report from Dr Peter Bentivoglio, following his examination of the plaintiff on 6 September 2017: Exhibit "B", Vol 2, pp 464 - 468.
Dr Bentivoglio referred to the plaintiff's history of having noticed a decreased sensation on the right side of his right nipple. Dr Bentivoglio correctly pointed out that this account of the plaintiff's history had not been mentioned in any of the medical histories recorded by the multiple practitioners who had previously examined the plaintiff, raising the implication that the plaintiff had not made a complaint of relevant symptoms to them along such lines.
Dr Bentivoglio noted that this complaint had only been picked up by Dr Simon's very thorough examination in August 2015, which then led to appropriate imaging and diagnosis of the thoracic lesion.
Dr Bentivoglio identified the plaintiff's ongoing complaints as comprising ongoing low back pain going into the right leg in the L5 distribution, and a persistent sensory loss secondary to the T5/6 lesion, without improvement since thoracic surgery was carried out.
Dr Bentivoglio concluded the plaintiff had two problems, namely: degenerative disc disease at the level L4/5 causing back and right leg pain; and altered sensation due to the compressive effects of the now treated benign thoracic tumour.
Dr Bentivoglio addressed a series of questions that were posed to him by the plaintiff's then solicitor. This produced the following commentary from him: 1. The plaintiff complained to Dr Pope of non-dermatomal weakness and alteration of sensation in his right leg, and Dr Pope did not test for numbness on the body, in the context where the plaintiff made no complaints of numbness to the side of his body; 2. In the presenting circumstances, the plaintiff's right-sided numbness would only have been detected by testing of the kind undertaken by Dr Simon two years after Dr Pope's first consultation with the plaintiff; 3. Dr Pope plainly thought the plaintiff's problem was from the lumbar spine. If right-sided numbness was made known to him, this should have resulted in tests of the kind undertaken by Dr Simon; 4. The MRI scan obtained by Dr Pope, showing a disc bulge at the level L4/5, would certainly have explained the plaintiff's "low back pain radiating into his leg". However, that opinion must be significantly read down on account of the fact that the plaintiff had not initially complained to Dr Pope of having low back pain; 5. Dr Pope treated the plaintiff conservatively for 15 (sic for 9) months before operating as the symptoms persisted; 6. Even if the thoracic symptoms had been the subject of earlier operative treatment, the plaintiff would still have had mechanical low back symptoms, buttock pain, and left leg symptoms from the fall (on 22 August 2014); 7. The plaintiff did not have any evidence to show that he had a cauda equina syndrome, therefore his genito-urinary symptoms remain unexplained and under-investigated; 8. Dr Bentivoglio doubted that Dr Pope's surgery to the plaintiff's lumbar spine at L4/5 either caused or potentiated the plaintiff's genito-urinary problems absent a cauda equina syndrome; 9. The plaintiff's right-sided gluteal pain could easily be coming from his lumbar spine as that is a very common referred problem from the lumbar spine; 10. The longer spinal decompression surgery is delayed the more likely it is that there will be lasting neurological damage.

[44]

(2) Onset of significant symptoms

In about March or April 2013, whilst the plaintiff was in Canada, he noticed that he was experiencing a sensory difference in his right leg. This followed a sporting injury after he was kneed in the right upper leg. He later experienced some unusual sensations which included a feeling of pins and needles, tingling, and numbness in his right leg above and below the knee. He said these also extended a little higher, to the region of the right side of his navel: T30.40 - T31.12.
The plaintiff described his symptoms of concern as being a feeling of difference in temperature, a different scratch or touch sensation, and he likened the experience of having "a dead arm" which could occur if it had been slept on in a certain way, but the sensation was longer lasting: T31.16 - T31.26. He could not recall having lower back pain symptoms at that time: T34.29. The plaintiff said that pre-operatively, he did not experience any pain. He said his problems were sensory in nature. He described the change in sensations in his right leg and up to the region near his navel as having had a gradual onset: T31.28 - T31.34.
The plaintiff had not sought medical advice about those sensations whilst he was in Canada. At that time, he was not overly concerned, and he thought those sensations were related to the earlier described sporting injury and would go away in due course. He remained in Canada until May 2013.
In Sydney, the plaintiff initially undertook heavy labouring work on various building sites. In August 2013 he commenced work with an Irish company involved in property development in this country. He worked for that company in his profession as an on-site surveyor. In that time, his sensory issues started to become more intense and concerning to him: T32.32.
The plaintiff's work on building sites involved him working on uneven ground. That work also involved a lot of bending, stooping, reaching and moving about, and moving heavy obstacles out of the way of his work. At times some of that work gave him occasional localised lower back pain. At times, on a busy day, his work also involved him hammering into place several hundred surveyor's pins. He described the work as strenuous. As he was experiencing difficulty with some of those tasks, he decided to seek out medical advice concerning the problematic sensations he was experiencing in his right leg and to his right side: T34.16.

[46]

(4) First consultation with Dr Pope - 15 October 2013

Dr Pope first saw the plaintiff in consultation on 15 October 2013 for specialist assessment and management of his sensory problems. The notes Dr Pope made of that consultation appear in Exhibit "B", Vol 1, p 37.
Dr Pope's short form abbreviated handwritten notes were difficult to decipher without his explanatory oral evidence. It is plain from Dr Pope's notes that these were in the form of an aide memoire which he later used as a basis for dictating his correspondence following his consultation with the plaintiff.
The following summary draws upon and combines the effect of the plaintiff's evidence, Dr Pope's clinical notes, his correspondence, and his oral evidence on pre-operative matters of history.
The plaintiff said his reason for seeing Dr Pope was to seek to address and resolve his sensory issues: T127.4. Although the plaintiff's recollection of the consultation was limited, he said the only concern he expressed to Dr Pope was his leg pain: T131.50 - T132.1.
Dr Pope's initial assessment noted the plaintiff's presenting complaints to be right lower limb pain, weakness and a pins and needles sensation in the right leg for the previous six months: Exhibit "B", Vol 1, p 38. He also noted that as a result, the plaintiff was experiencing occasional waking at night, with discomfort. He noted the plaintiff's symptoms had come on slowly and had progressively worsened. This was against a history of the plaintiff being otherwise fit and able to carry out his work as a surveyor in the building industry.
In his evidence, the plaintiff described the gradual onset of some changed sensations in the right leg, and also at the front of his body up to his navel: T31.30 - T31.34.
The plaintiff explained in his evidence that when he saw Dr Pope he did not mention the sensations he had been experiencing on his right side up to near his navel when describing his symptoms. He said this was because he was more concerned about his leg symptoms and because Dr Pope had not asked him questions which might have led to a discussion about the sensations he described as being at the higher level: T176.38 - T175.47.
The plaintiff was concerned to have his sensory problems addressed, and he was primarily concerned with his right lower limb problems, which included the numbness in the right foot and sensory issues down his right leg: T125.1 - T125.16. Therefore, the plaintiff did not volunteer to Dr Pope that he had sensory issues going up to the level of his navel on the right side, particularly since he had not been asked about them: T178.16 - T178.25. He did not know that those symptoms were a relevant consideration to the analysis: T179.16. He took the approach of telling Dr Pope about the symptoms that were troubling him the most. Whilst that approach was understandable, and consistent with his laconic understated style of communication, it necessarily meant that Dr Pope had not been provided with all the relevant claim information upon which he made his clinical judgments.
As a result, the described area of the plaintiff's navel was not examined or considered by Dr Pope: T36.23 - T36.39. Consistent with that course, Dr Pope did not enquire about or make any notes about any abnormal sensations in the right side up to the level of the navel.
At that initial consultation, Dr Pope noted that the plaintiff's standing and walking tolerance was limited to 60 minutes, and his capacity to sit was not limited. He specifically noted that the plaintiff did not make any complaints of lower back pain.
Dr Pope's findings on his examination of the plaintiff revealed his capacity for forward flexion of his spine to the mid shin level, extension was 10 degrees, and bilaterally, lateral flexion was 15 degrees and rotation was 70 degrees. He found that straight-leg raising was limited to 30 degrees on the right and 70 degrees on the left. He found the plaintiff's knee and ankle jerk reflexes were symmetrical. On palpation, he found the plaintiff had tenderness over his right buttock. He performed a hip examination and a pelvic spring test which yielded negative results, which in context, I take to mean the results of those tests were normal.
Dr Pope observed the plaintiff had a non-antalgic or non-painful gait, and that he could walk on his heels and his toes. However, walking on the tips of his right toes was reportedly painful. Dr Pope noted that functionally, the plaintiff's condition had significantly deteriorated in the previous month.
Dr Pope's myotomal neurological assessment of the plaintiff revealed bilateral weakness of the flexor hallucis longus muscles, this being worse on the left due to pain, and he found some weakness of the extensor hallucis longus muscle on the right side.
The bilateral nature of that weakness attracted some attention from the expert witnesses, as will be referred to in detail at a later point in these reasons.
The above history and findings led Dr Pope to form his initial but non-definitive opinion as to a diagnosis. In that regard, he informed the plaintiff that he considered him to have a recalcitrant L5 and S1 radiculopathy due to an L5/S1 disc herniation and an associated foraminal stenosis of the spinal cord. In context, this was a working diagnosis rather than a definitive diagnosis.
The expert witnesses agreed that at the stage of that first consultation on 15 October 2013, Dr Pope did not have sufficient information available to him to ascribe a definitive cause for the plaintiff's presenting symptoms as he had described them to Dr Pope, and as Dr Pope had recorded them: Exhibit "B", Vol 1, p 30, answer to Q. 2.
Dr Pope's initial plan of management at that first consultation was that the plaintiff should have a lumbar MRI scan to confirm the working diagnosis. He felt this was necessary to enable him to look at the underlying anatomy more clearly, and to see whether there was a disc extrusion.
Dr Pope's plan was that if there was a lumbar disc herniation, the plaintiff initially should have physiotherapy, and if that did not alleviate the symptoms, then lumbar surgery would be recommended.
The plaintiff said that at the first consultation, Dr Pope told him that the herniated lumbar disc was the most probable cause of his reported symptoms. He said there was no discussion at that time as to other potential causes for his sensory problems: T36.45 - T37.5.
After that first consultation with the plaintiff, Dr Pope wrote to Dr Lam stating: "I feel we are heading towards surgery given that he is in chronic pain and chronic denervation". He suggested an S1 periradicular block, he prescribed Lyrica for pain relief, and he also suggested physiotherapy. In the conclusion to his letter to Dr Lam, he reiterated: "I feel we are heading towards a surgical solution here": Exhibit "B", Vol 1, p 39.
The copy of Dr Pope's handwritten clinical notes appear to include what I interpret to be a photocopy of an affixed sticker, which evidences that he gave the plaintiff a RACS patient information pamphlet with some details of what might be involved with an anticipated discectomy procedure: Exhibit "B", Vol 1, p 37. A copy of the patient information pamphlet is included in Exhibit "B", Vol 1, pp 45 - 47, where a blank space appears, apparently left by a removal of that sticker.
At that time, Dr Pope's advice to the plaintiff was that as he was in chronic pain, and had indications of chronic denervation, surgery was advisable to prevent further irreversible neurological damage. Dr Pope informed the plaintiff that with such lumbar surgery, there was a 70 per cent chance of improvement of leg pain.
On the basis of the RACS pamphlet Dr Pope provided to the plaintiff, and on the basis of the plaintiff's oral evidence (at T132.46 - T132.49; T134.23), I am satisfied that the plaintiff was adequately informed that the surgery that Dr Pope was contemplating carried with it the possibility of a range of attendant adverse risks of the kind included in the RACS patient information pamphlet.
Dr Pope said that pre-operatively, he had informed the plaintiff of the risks and the benefits of the surgery he had recommended to him. It is not necessary to traverse the evidence on those matters of risk as they are sufficiently set out in the RACS patient information pamphlet, and this is not a case of an alleged failure to provide relevant information before obtaining the plaintiff's consent to surgery.

[48]

(6) Second consultation with Dr Pope - 12 November 2013

On 12 November 2013, at Dr Pope's second consultation with the plaintiff, the results of the above investigations were available to him for his evaluation.
In reviewing the radiological reports, Dr Pope raised a doubt as to whether the perineural injection had reached the pain generator site in the plaintiff's lumbar spine. This was a confounding clinical query in his mind.
A review of the documentary evidence does not reveal any contemporaneous note to the effect that the plaintiff's symptoms of abnormal sensation on the right side up to the region of his navel had been disclosed to Dr Pope at this time. Materially, in his oral evidence, the plaintiff did not claim that he had done so.
At that consultation on 12 November 2013, Dr Pope had available for his consideration the radiological report of Dr Sebastian Fung, dated 23 October 2013, which interpreted the MRI scan undertaken on the plaintiff's lumbar spine on that date: Exhibit "B", Vol 1, pp 41 - 42.
Dr Fung's report interpreting that MRI scan was of some considerable diagnostic significance to Dr Pope. This was because, as he explained in his oral evidence, he identified Dr Fung's particular expertise in interpreting neuro-radiological scans: T220.6 - T220.8.
Dr Fung's report noted the background clinical history of an L5-S1 disc herniation as had been seen on previous CT scanning, with a query as to whether there was a right-sided S1 nerve root compression. Dr Fung also identified some unusual features, namely a transitional lumbosacral junction, with a likely sacralisation of L5-S1, and a rudimentary L5-S1 disc with moderately degenerated dysplastic facet joints. He commented that those findings affected the identification or nomenclature of the appearances of the target structures at those particular levels.
Dr Fung's evaluation did not find any abnormalities at the level L5-S1, but he observed that at the L4-5 level, there were abnormalities. His commentary was as follows: "COMMENT: There is a transitional lumbosacral junction. The L5-S1 disc is rudimentary. Nomenclature of disc levels is based upon the iliolumbar ligament and there is therefore an L4-5 degenerative disc protrusion. There is no nerve root impingement. There is minimal to no lateral recess stenosis associated, with the L4-5 disc protrusion. The foramina and the canal are clear." [Exhibit "B", Vol 1, p 41]
At Dr Pope's 12 November 2013 follow-up consultation with the plaintiff, the plaintiff was asked to complete an Oswestry Disability Questionnaire. This was the first of three such questionnaires, the others being 16 June 2014, which was the date of the surgery, and on 3 September 2014. On 12 November 2013, in the plaintiff's answers he rated his leg and his back pain as both being 4/10: Exhibit "B", Vol 1, pp 124 - 125.
This revealed a difference in the presentation compared with the plaintiff's history provided on 15 October 2013, when there was no back pain.
In that first Oswestry questionnaire, the plaintiff rated his pain as being moderate. He also rated his condition as preventing him from lifting heavy weights, from walking more than two kilometres, or sitting for more than one hour, with the experience of extra pain if standing for prolonged periods, regular sleep disturbance, and extra pain when engaged in other activities. He annotated his leg pain as being uncomfortable, and he annotated his back pain as being annoying.
Dr Pope noted the plaintiff's history that the peri-radicular nerve block injection carried out on 21 October 2013 had given the plaintiff some good relief for a few weeks, but this had been followed by a return of symptoms.
In Dr Pope's letter of report of the 12 October 2013 consultation to Dr Lam, he identified a diagnostic difficulty based on the radiological imaging. He queried whether the peri-neural injection had reached the pain generator level in the plaintiff's lumbar spine. This difficulty was stated to be due to how the plaintiff's lumbar vertebrae were counted during the imaging process. The issue was whether the transitional vertebrae had been taken into consideration.
Dr Pope was not able to resolve or verify that conundrum with Dr Caristo, the radiologist, because of doubt over whether the particular or relevant axial CT image had been printed: T259.30.
As to the efficacy of the CT-guided injection, Dr Pope was therefore left in the position that he could not confirm that Dr Caristo's cortisone injection had correctly targeted the L5-S1 area as the area of pain generation.
Dr Pope therefore turned his attention to a consideration of the MRI scan of the plaintiff's lumbar spine. In his report to Dr Lam, he identified a difference of opinion between Dr Fung's radiological interpretation of an aspect of that scan, and his own interpretation, as follows: "… The MRI did show a vestigial disc at L5/S1 and the disc herniation was described L4/5 with a right paracentral disc extrusion but no compression of neural structures. I beg to defer (sic for differ) that there may be some compression of the nerve root which is L5 based on the report but clinically if it indeed is the L5/S1 level then it could be the S1 nerve root which is consistent with S1. Clinically it seems to be more L5 and therefore I will accept the radiologist report that the pain generator level as L4/5. I have explained to Mr. Dean that he has failed nonsurgical measures and I have given him another script for Lyrica. I have also asked him to see a good quality physiotherapist Dan Kelly in the city to see if they can help with strategies about him continuing to work as a builder, it is unfortunate he is in an industry which can cause further degeneration and further disc herniation but he does not really have a choice. I have given him the option of an operation in the form of a decompression, microdiscectomy and rhizolysis and I have gone through an informed consent talking about surgical risks, medical risks, anaesthetic risks and risks classified as rare. He has decided that he will accept surgery and go on the waiting list which may be before Christmas but more likely early next year. If he changes his mind he can postpone or cancel the surgery. I feel that this is a reasonable option given that the history and signs are consistent with a radicular component and I have given him up to a 70% chance of some improvement in the leg and maybe 60% with some of the back pain. The leg pain is by far the main issue. I have asked him to avoid any heavy lifting twisting of more than 10 kg and I look forward to providing the operation for him and he knows to bring his MRI in." [Exhibit "B", Vol 1, pp 43 - 44] [Emphasis added to the correction]
In that regard, in Dr Pope's oral evidence, his attention was drawn to the expression "beg to defer", which appears in the first paragraph of the above quotation. He confirmed this was a dictation error or a transcription error. His corrected evidence on that detail was that he begged to "differ" from the opinion of Dr Fung: T219.26.
The plaintiff's evidence was that he had not initially complained to Dr Pope specifically about back pain: T41.11. He said his only concern was his sensory issues as earlier described: T41.25. He had in the past experienced back pain in the course of his labouring work. He said his back pain of that kind was not debilitating: T41.21.
The plaintiff was asked questions concerning Dr Pope's discussion about the surgery he was contemplating. His evidence was as follows: "Q. So what did he say to you about surgery? A. He said it's by no means a big herniation. Usually when you see a herniation it jumps off the pages, you can definitely tell that, but you had to look for my one. It was pretty insignificant. He said you could see five - you could get five other opinions and maybe only two would operate. Q. So did you take that on board at the time? A. I did, yep. Q. Were you asked to sign any consent forms on that occasion, do you remember? A. I do remember signing some forms to go on a waiting list." [T41.45 - T42.6]
Whilst Dr Pope did not agree that he would have told the plaintiff only two in five neurosurgeons would operate in the plaintiff's presenting circumstances, he conceded that it could be true that there would be many neurosurgeons who would not have contemplated operating on a man of the plaintiff's age, with his presenting signs and symptoms, and that some would choose not to operate: T269.46 - T270.10.
That evidence has to be read in light of Dr Pope's unchallenged evidence that in the context of the presence of an annular tear in the vicinity of an L5 nerve root, it is open to a surgeon to choose the appropriate procedure, depending upon their training and particular style of operating.
In that context, significantly, Dr Pope stated that "the vast majority of neurosurgeons in Australia would perform what we call a local discectomy and remove a fairly small portion of the nucleus pulposis content": T271.37 - T272.25.
The plaintiff said he wanted time to think about the surgery and not rush into it as he was hoping his condition might settle down: T42.45; T43.38. He also had some innate scepticism and historical fear about having surgery to his lumbar spine. This was because of previous surgeries he had, where his tonsils were removed in three operations, and because of his experience with surgery for a broken collarbone whilst at University: T138.30 - T138.38.
Understandably, against the background of those experiences, the plaintiff was slow to agree to the suggested surgery. Nothing turns on the delayed timing of his agreement. The defendant did not seek to argue that there had been an unreasonable failure on the plaintiff's part to mitigate his losses.
At this second consultation, Dr Pope referred the plaintiff to Mr Dan Kelly for physiotherapy treatment as a prelude to surgery.

[51]

(9) Lumbar surgery by Dr Pope on 16 June 2014

Dr Pope's operation note of 16 June 2014 shows that at the operation at Concord Hospital he was assisted by his Registrar, Dr Ghaneshwaran Shivapathasundram: Exhibit "B", Vol 1, pp 52 - 53, pp 106 - 109.
The operation note is cited in full as follows: "… Operating Theatre 01 Indications/Background Right L4/5 disc herniation Right L5 radiculopathy with S1 anatomical features Primary Operation Performed Right keyhole L4/S Decompression + microdiscectomy + rhizolysis Item Numbers- 40306,40301,40330. Operation description Prone on Wilson frame under GA Pressure areas attended Time out P+D Right paramedian incision with fascial cut XR guidance to L4/5 space and confirmed with dilators in Nuvasive Maxcess retractor in Microscope drill laminotomy L4 and L5 and flavotomy Dura decompressed centrally and right lateral recess L5 root exposed and gently dissected off annular tear and PLL adhesion Annulotomy and local discectomy until no more free fragments Rhizolysis L5 root and L4 right side Left side free No more adhesion and no more free disc fragments Wash Floseal haemostasis Retactor out after final wash and neuro inspection and 4mg dexamethasone topically Layerd closure 1/0v AND 4/0 M skin subcutic Blood loss 5 Mls Radiological findings L4/S radiologic level. Vestigial disc L5/S. Disc bulge right L4/5 level Pathological process found In surgery Adherent L5 root to PLL and annular tear/bulge …" [Exhibit "B", Vol 1, p 98]
In his oral evidence, in cross-examination, Dr Pope expanded upon the description of the procedure he had performed. He described it as successful in that there were no intra-operative complications or problems: T270.35 - T275.36.
At this point, with regard to that procedure, it is sufficient to record that Dr Pope considered that decompression of the dura was required centrally and in the right lateral recess, and the L5 nerve root was dissected off the described annular tear, where he said he found it to have been adherent, and that free disc fragments were then removed at annulotomy. Rhizolysis of the L5 root and the L4 roots on the right side was carried out. No other abnormalities or adverse events were noted. The procedure, as described, appeared uneventful.

[52]

(10) Post-operative course

In post-surgical recovery, the plaintiff noticed there was no difference in his previous leg symptoms, which had persisted, contrary to his expectation. The plaintiff noted that in addition, he was experiencing sharp, intense and unrelenting pain in his back. That pain was completely different to the type of pain in his back that he had been experiencing before the operation: T49.35.
The plaintiff described that back pain as the worst pain he has ever felt. He said that, in the weeks that followed, there had been no improvement in the previous leg sensations, and understandably, this worried him: T50.1 - T50.10.
Dr Pope said of the procedure in question that, as a surgeon, in operating, his expectation was to be able to help and benefit the patient, so when the plaintiff was reporting post-operative problems, and there was not much in the way of forward progress, there was some sense of disappointment from the surgeon's perspective: T278.45 - T279.2.
The plaintiff said that at his 1 July 2014 post-operative follow-up consultation, Dr Pope had told him that the pain and the muscle spasm he was experiencing was due to swelling, and this could take a long time, up to six months, to settle down. He was prescribed Valium, Lyrica, opiates and anti-inflammatories. He found he could not tolerate the medication regime that was prescribed for him.
The plaintiff continued to see Mr Kelly for post-operative physiotherapy. The plaintiff returned to work about three weeks post-operatively, but the back and leg symptoms he was experiencing did not improve: T52.34 - T53.20.
The plaintiff was experiencing difficulties at work. He experienced flare-ups in his symptoms. Fortunately, he was generously accommodated by his employer with sick leave on the days he needed to recover from those flare-ups without requiring medical certificates. In that time, his girlfriend carried out most of the domestic tasks.
The plaintiff continued to experience the described additional level of back pain that was not present pre-operatively. Although there was a degree of improvement over time, his back condition never recovered to its pre-operative condition.
Dr Pope conceded that throughout his consultations with the plaintiff in the post-operative period, into 2015, the plaintiff was continuing to have significant problems on every occasion he was seen: T279.20. He said those circumstances formed the basis for him to refer the plaintiff for treatment for pain management as the appropriate clinical pathway: T283.3 - T283.15

[54]

(12) Continuing problems and further consultations with Dr Pope

The plaintiff continued to see Dr Pope between September 2014 and March 2015 for his ongoing symptoms.
At one stage the plaintiff asked Dr Pope whether he had piriformis syndrome, which was understood to involve a mechanism of nerve entrapment by surrounding muscular tissue. Dr Pope advised the plaintiff that such a diagnosis was considered to be controversial. Further consideration of that possibility was then abandoned, and the plaintiff was referred to Dr Ng, a specialist in pain management.
In the meantime, the employer's workers' compensation insurer was paying for the plaintiff's physiotherapy and for his prescriptions for pain medication. Over that period the plaintiff saw Dr Pope on a number of occasions. He was experiencing difficulty with work. His earlier described leg and back symptoms were still continuing.
In March 2015, at the request of Dr Ng, the plaintiff had a further MRI scan of his lumbar spine. No new appearances were identified. He continued working in that period, but with restrictions, and he experienced intermittent flare-ups and increasing sensory difficulties and difficulties with sleep.
The plaintiff tried swimming as exercise, thinking that this activity might build up his strength. However, he found this increased his symptoms. He was taking medication for the muscle spasms, and the flare-ups and the sleep difficulties he was experiencing. At the suggestion of his girlfriend, a yoga instructor, he tried pilates and yoga for stretching exercises. This provided relief only sometimes.
In early 2015 the plaintiff's back problems continued, with flare-ups, and at times they worsened. His sensory issues continued, as did his sleeping difficulties: T80.1 - T80.15. He was seeking some alleviation for his problems, particularly as Dr Pope had suggested to him, if his work became affected he may need a spinal fusion as the next treatment option.
The plaintiff was not attracted to that idea. He therefore sought out a second specialist opinion on the management of his condition: T81.20 - T81.32.
Dr Pope's parting advice to the plaintiff was that he should continue with physiotherapy treatment, continue to heed Dr Ng's pain management advice, and permanently restrict any lifting to 15kgs (T159.40), and he had to "get used" to the problems that remained: T163.2.

[55]

(13) Second specialist opinion from Dr Steel

In the early months of 2015, the plaintiff was seeking alternative medical advice. In May 2015, through social connections, he became aware that Dr Timothy Steel, another neurosurgeon, had performed multiple surgeries on a patient who was known to his girlfriend's family. That patient was a friend of Dr Steel. She encouraged the plaintiff to go and see him for advice.
On 23 March 2015, at the plaintiff's request, Dr Lam wrote the plaintiff a referral to see Dr Steel: Exhibit "B", Vol 5, p 1566. That referral set out a description of the plaintiff's identified sensory problems in his right leg, namely, a tingling feeling, with coldness, and a feeling of weakness down that leg. The referral note made mention of the plaintiff's fall on 22 August 2014, and subsequent pains in his left leg, lower back and right leg since that incident. Significantly, Dr Lam's referral note to Dr Steel made no mention of sensory problems on the plaintiff's right side up to the level of the navel.
On 25 March 2015, the plaintiff completed a patient information sheet as was required for his consultation with Dr Steel: Exhibit "B", Vol 5, pp 1567 - 1570. The handwritten information provided by the plaintiff touched upon four relevant topics.
First, in answer to the question as to whether he was experiencing any numbness or pins and needles, the plaintiff ticked that box and described the location as being "lower right leg mostly from knee down + right buttock": Exhibit "B", Vol 5, p 1568.
Secondly, in the diagram section of the form, which required the plaintiff to indicate by marking on the diagrams, the location on his body where he experienced pain, he circled the lower right leg on both the ventral and the dorsal diagrams, and he pinpointed a spot on the right buttock surrounded by a wider circle on the dorsal diagram. There was no marking of any abnormality on the ventral side in the vicinity to the right of the navel. The absence of a marking of the latter kind could possibly be explained by the fact that the diagram called for markings specifically as to pain, and not abnormal sensation.
Thirdly, in answer to a question as to whether he was experiencing any muscle weakness, the plaintiff marked that as "No": Exhibit "B", Vol 5, p 1568.
Fourthly, in answer to the composite questions of how the pain started, when this occurred, and whether this was as a result of an injury, the plaintiff answered as follows: "Started around two years ago. I was kneed or struck in the right buttock very hard. This gave me a sore bum for several weeks and when that pain subsided I was left with the leg pain and numbness. It progressively got worse, especially with the constant bending and hunching down at work. The numbness is at it's (sic) most severe usually at night time and when I wake in the morning." [Exhibit "B", Vol 5, p 1569]
That description was stated to relate to first occurrence of the condition, which the plaintiff described as being in "approx. March/April 2013": Exhibit "B", Vol 5, p 1569.
On 25 March 2015, Dr Steel referred the plaintiff to St Vincent's Medical Imaging for an MRI scan of his right buttock and his sciatic nerve and also for an examination of his right piriformis muscle: Exhibit "B", Vol 5, p 1571. On 27 March 2015, that scan was carried out. On 30 March 2015, Dr Fung reported that there was no evidence of a sciatic nerve lesion, there were no features suggesting piriformis syndrome, the lumbosacral plexus was reported to be intact, and the gluteal musculature was reported to be unremarkable, as were the hamstrings: Exhibit "B", Vol 5, p 1576.
Also on 25 March 2015, Dr Steel referred the plaintiff to St Vincent's Medical Imaging for an MRI scan of his thoracic spine (Exhibit "B", Vol 5, p 1573), and at the same time referred him to Dr Neil Simon for a neurological assessment: Exhibit "B", Vol 5, p 1572.
On 26 March 2015, Dr Steel also wrote to Dr Lam indicating that he would review the MRI scan when it is available: Exhibit "B", Vol 5, p 1575.
In that letter of report to Dr Lam, Dr Steel set out his record of the plaintiff's history as follows: "History The pain started two years ago when he was kneed in the right buttock area. He had local pain for several weeks and when the pain subsided, he was left with leg pain and numbness in an L5-S1 distribution. The symptoms progressed which he attributes to constant bending and hunching down at work. The numbness is most severe usually in the nighttime and when he wakes in the morning. He eventually underwent a lumbar microdiscectomy on 14th June 2014 by Dr Raoul Pope at Concord. From the moment he woke up from the surgery, he did not feel there had been any improvement in his symptoms. He currently takes Lyrica, Tramadol and Palexia. He had a cortisone injection performed one month ago and this also did not alleviate his symptoms." [Exhibit "B", Vol 5, p 1574]

[56]

(14) Referral to Dr Simon

On 26 March 2015, Dr Steel wrote the plaintiff a letter of referral to Dr Simon, a consultant neurologist, in the following terms: "Thanks for seeing Mr Rory Dean who came and saw me on 25th March. He is a 26 year old with ongoing right leg symptoms. He had a lumbar microdisectomy (sic) performed by Raoul Pope at Concord last year but this did not improve his symptoms at all. There was a story of some local trauma to his buttock area and pain developing after this. Thanks very much for seeing him. I would appreciate your review and advice." [Exhibit "B", Vol 5, p 1666]
In that letter of referral, Dr Steel made no mention of the plaintiff having complained of any abnormal sensory symptoms up to the right side of his navel.
On 12 April 2015, pending the anticipated consultation with Dr Simon, Dr Steel wrote to Dr Lam referring to the MRI scan report on the plaintiff's right buttock. He said he would await the anticipated review by Dr Simon to see if this could assist with diagnosis and management: Exhibit "B", Vol 5, p 1577.
Dr Simon's 6 August 2015 letter to Dr Steel (Exhibit "B", Vol 5, pp 1578 - 1579), was in the following terms: "Thank you for asking me to see Rory Dean, a 26 year old right handed surveyor. Rory first developed symptoms around 2012 when he was living in Canada and working as a supervisor. He developed right lower limb sensory disturbance which included an uncomfortable prickling sensation associated with a feeling of coldness, tingling and numbness below the knee. This involved the skin in a circumferential fashion, involving the medial and lateral aspects similarly, but probably the dorsal more than the plantar aspect. There was no clear trigger, although he did have some falls when skiing around that time. There was no associated back pain and the sensory disturbance gradually got worse over time. These symptoms have continued to slowly worsen and have never resolved. However, he was able to undertake his normal work role including heavy lifting work and denied any change in his strength. Lifting did not aggravate his symptoms at that stage. He was assessed by Dr Raoul Pope who identified an L5-S1 disc bulge and performed a right L5/S1 microdiscectomy. This did not result in any improvement in his symptoms. Since then, his symptoms again have worsened slightly and now with physical activity he may get worsening leg pain and also some back pain. He had an accident at work on 22 August 2014. There was a hole at work which was covered by a thin and rotten piece of ply. He stepped on it and fell through, one leg going into the hole and the other leg staying up stretching his hamstrings and groin. He struck his right buttock and said that he could barely walk after the event as his left hamstrings were very painful. He also had low back pain and subsequently over the next several days, he had difficulty mobilising because of movement-induced back pain and hamstring tightness. He was prescribed diazepam and anti-inflammatories and things slowly improved. He has been on WorkCover benefits since to cover medication and physiotherapy but he was back to work full-time the following week, although his duties have been lighter. These symptoms have improved somewhat since they started, although the right leg sensory disturbances worsened after this fall and have continued to worsen since. Current symptoms include those right leg sensory symptoms as described. He also gets a spasm in his right buttock which he says feels like a cramp. His buttock is tender to touch and he may roll a tennis ball around it to improve the sensation. He also does get intermittent left thigh tightness. His pain is not affected by coughing, sneezing or straining. He also noted that he has a decreased urinary stream and an increased nocturia since the surgery. I note that he needed a urinary catheter for retention postoperatively. In terms of treatment, those medications he is presently on are listed. He tried Lyrica 150 mg twice daily which did not help. He recently saw Dr Steven Ng, a musculoskeletal physician, who was going to advise further treatment. NEUROLOGICAL EXAMINATION On sensory examination, there was a reduced pin-prick sensation on the right side respecting the midline and with a sensory level anteriorly and posteriorly at approximately T9. Vibration sense was relatively preserved. Reflexes in the lower limbs were generally brisk including crossed adductor reflexes. The left plantar response was flexor and the right plantar response was mute. Upper limb reflexes were normal. There was slight hypertonia at the right knee but otherwise, tone was normal. Muscle strength was normal. OPINION AND MANAGEMENT Paul has had approximately three years of right lower limb sensory symptoms, with objective sensory abnormalities on examination along with a T9 sensory level. In the first instance, I would like an MRI of the cervical and thoracic spine to look for a spinal cord lesion as an integrated cause for all of his current problems. If that is unrewarding, it would also be worthwhile to perform nerve conduction studies of the right lower limb to exclude a peripheral nerve component and some somatosensory evoked potentials of the lower +/- upper limbs to assess central sensory conduction. Following these tests, if possible I would like to see Paul again to explore the diagnosis and treatment options further."
Following on from Dr Simon's report dated 6 August 2015 cited above, the plaintiff underwent MRI scanning of his cervical and thoracic spines at St Vincent's Medical Imaging. In his report on that scan, Dr Jonathan Ly identified the presence of a large epidural mass at T5 and T6 vertebral levels spanning 43mm when measured in the cranio-caudal plane, with a subtle oedema or early myelomalacia in the left hemi-cord at the T5/6 level: Exhibit "B", Vol 5, pp 1580 - 1582.
At some stage Dr Simon would have seen that MRI scan report as it was addressed to him. Although Dr Simon concluded his pre-MRI correspondence to Dr Steel with the request that he see the plaintiff again to explore the diagnosis and treatment further, unusually, no clinical report was tendered to indicate that he saw the plaintiff again or had commented on the results of the above cited MRI scan. It would seem unlikely that Dr Simon would not have contemporaneously commented on Dr Ly's MRI report.
In circumstances that have been left unexplained in the evidence, on 17 August 2015, the plaintiff underwent a CT scan of his thoracic spine. On the face of the report of that test it seems to have been ordered by Dr Steel on an unknown date. The stated purpose for that scan was to make a comparative study with the thoracic spine MRI dated 8 August 2015. This comparison, which was reported upon by Dr Andrew Csillag, identified the presence of a benign bone lesion at T5/6, probably an exostosis, causing a central canal stenosis and severe right sided T5 foraminal stenosis: Exhibit "B", Vol 5, p 1582.
On 17 August 2015, Dr Steel saw the plaintiff again after sighting the above CT scan result. On 18 August 2015, Dr Steel wrote to Dr Lam recommending the plaintiff undergo a thoracic laminectomy for removal of the lesion found at T5/6 as this was "almost certainly the cause of [the plaintiff's] right leg dysfunction": Exhibit "B", Vol 5, p 1583.

[57]

(15) Plaintiff's last consultation with Dr Pope - 12 August 2015

The plaintiff last saw Dr Pope on 12 August 2015. Dr Pope sent a letter to Dr Lam outlining his account of the events of that meeting: Exhibit "B", Vol 1, pp 175 - 176.
That letter had a workers' compensation claim focus. It referred to a claim number which related to the plaintiff's fall at work on 22 August 2014. It referred to the last consultation having taken place on 30 June 2015, and to the fact that the plaintiff's workers' compensation "case" would close on 1 September 2015.
Dr Pope's letter went on to refer to matters of history which were current at that time, and he referred to an examination he said he had carried out on the plaintiff on that day, noting there were no power deficits in the left leg and he identified "some sensory loss over the whole of the right leg which does not make any anatomical sense": Exhibit "B", Vol 5, p 175; T250.40 - T251.16.
In that context, Dr Pope raised a question as to whether the plaintiff had some kind of peripheral neuropathy, and for that reason, he said he had asked the plaintiff to see Dr Glen Shea, a pain management specialist, to gain insight into that problem. He also stated the plaintiff no longer needed any neurosurgical review, but he left the door open for that to occur should a need for this arise in the future. Reference was made to the plaintiff's lifting restrictions, noting this could be revised if the plaintiff was "feeling better within himself": Exhibit "B", Vol 1, p 176. That comment suggested that there was an apparent psychological indisposition evident in the plaintiff's presentation at that time.
Dr Pope's letter to Dr Lam made no reference whatsoever to any untoward or aggressive demeanour on the part of the plaintiff as he had described in his evidence. This was odd given the content of his oral evidence on that topic.
In his oral evidence, Dr Pope described the event as memorable. In that regard Dr Pope described the plaintiff as "aggressive" on that occasion: T250.15 - T250.28.
Similarly, the plaintiff said of those events that he had angrily confronted Dr Pope on this occasion with the assertion that he had missed diagnosing the thoracic lesion, and that he "stormed out", seething in anger, before he might have done "something that would land [him] in big trouble": T160.25; T160.50 - T161.40.
In giving that evidence the plaintiff denied that Dr Pope had conducted a physical examination of him on that date: T161.20. Dr Pope denied that he had not carried out a physical examination of the plaintiff on that date: T284.26. Dr Pope based that denial on his recollection, and on some kind of note that he said he had made of those events: T284.29.
When Dr Pope was challenged on the content of his last consultation with the plaintiff, when it was put to him that the plaintiff had challenged him for failing to diagnose a thoracic lesion, he gave the following evidence: "Q. You said he had numbness over the whole foot, calf and thighs, and completely numb in the leg, and you said that was not capable of an explanation that you could give. Perhaps I may not be paraphrasing you correctly. My note may be - very few conditions would cause that. Is that right? A. That would be true, yes. HIS HONOUR Q. I think the effect of your comment - I don't recall the precise words - was that you didn't consider it to be a credible complaint. Is that correct? A. I wouldn't usually use that word, your Honour. Q. No, that was my word. I'm trying to paraphrase absent the note, and not having access to today's transcript yet. A. Yes, using that as an analogy, yes, I would say that that would be accurate. CRANITCH Q. He was keen to tell you, I suggest to you, that in fact, he believed you had operated unnecessarily on his lower back when the problem lay in the thoracic region. Do you recall that? A. No, I don't, Mr Cranitch. Q. I know you've said that you have no recollection of his mentioning the thoracic region, but you certainly accept that whatever happened, he was upset and aggressive. A. Yes. Q. If he didn't draw these matters to your attention, in what way was he aggressive? What did he say or do to lead you to that conclusion? A. He was raising his voice. He had quickened speech. He had confrontational presence physically. He looked - he looked upset to me. Q. Did you ask him why he was upset? It was obvious to you he was upset. Did you ask him why, and what was the context in which he was raising his voice? Sorry, there's two questions. Did you ask him why, first of all? A. I'm not sure. I can't recall if I asked him why. I was confused. Q. In what context did he raise his voice? What did he say in a raised voice to you? A. I can't recall that, Mr Cranitch. Q. I suggest that what he said to you was, he had been found to have a thoracic lesion, which explained the problems he had been having since 2013, or words to that effect. You don't recall that? A. No, I don't recall that, Mr Cranitch. Q. He might have said it, but you don't recall it. A. That could be a possibility, as well. HIS HONOUR Q. Do you recall the evidence the plaintiff gave where he said, on this final meeting with you, that he - and again, I'm paraphrasing - he stormed out lest he do something regrettable? Do you recall that evidence? A. I recall that the consultation ended abruptly. Q. I'm asking if you recall him giving that evidence here. A. Yes, I do, your Honour. Yes, I Q. Does that accord with your recollection of what he said? A. Again, I cannot remember him storming out, but I know the consultation ended abruptly. Q. Did you not think that a doctor patient relationship that ended in such circumstances was a risk management issue worthy of making a note? A. I did make a note that he was disappointed with his surgery. Q. Looking at another possible explanation, that maybe you found this a shocking and confronting episode at the time. Would that be right, or not? A. I can't actually recall my feelings exactly, of how I reacted to the end of that consultation." [T284.36 - T286.8] [Emphasis added]
Dr Pope's answers to the effect he had no recollection on those latter matters seemed at odds with his otherwise particular recall of the unpleasant tone of that final meeting with the plaintiff.
The note referred to by Dr Pope in the previously cited extract of his evidence cited at paragraph [244] above, which referred to the plaintiff's disappointment must have been separate to the letter he sent to Dr Lam as that letter did not contain any reference to that matter. The note was not included in the material tendered in evidence.
This raises a question as to which of those two versions of the events is more likely to be correct.
On the one hand, it seems unlikely that Dr Pope would have fabricated his description of a physical examination with findings as stated.
On the other hand it seems equally improbable that the plaintiff, in an aggressive mood, having learnt in the preceding days, from Dr Simon or Dr Steel, the result of the most recent thoracic imaging to the effect that he had a bony tumour at T5/6, with the implication that in his view Dr Pope's operation was misconceived, would have agreed to be physically examined by Dr Pope whilst exhibiting such anger.
It also seems unlikely that Dr Pope, as an experienced and astute clinician who was conscious of the plaintiff's adverse demeanour, would have exposed himself to a possible escalation of aggressive behaviour by laying his hands on the plaintiff in order to perform a physical examination whilst he was in such an angry and aggressive state.
A common element in the two versions of those events is that the plaintiff was angry and aggressive. Another common element is that the described events marked an unpleasant end to the doctor and patient relationship.
In my view, the two contrasting versions are equally balanced, and they were recounted by the plaintiff and by Dr Pope with apparent sincere recall in each instance. In those circumstances, although this evidence raises a credit issue, it arises in respect of a peripheral matter, and as such, I conclude that it is not necessary to decide which version should be preferred as being more likely to be correct. The position would be different if the dispute centred around a pivotal matter of fact in issue.

[60]

(18) Plaintiff's residual problems

The plaintiff continues to experience lower back pain and right buttock pain. He feels that area is tender to touch. He developed musculo-skeletal pain in the region of his chest which ultimately resolved with physiotherapy. The plaintiff finds it difficult to use public transport because of the pain he experiences when doing so.
The plaintiff still needs to take Valium at night, although less frequently than before the thoracic surgery. He has had to change his work from on-site surveying work to desk work, and surveying existing buildings rather than working on more hazardous construction sites. His income has therefore been reduced by a few hundred dollars per week. Ultimately, in December 2017 he lost his job because he found it difficult to sit at his desk for the prolonged periods of concentration that were required to write reports. He said he experienced agony in that activity.
The plaintiff was out of work in the December 2017 - January 2018 period. In January 2018 he recommenced work as an on-site surveyor but this work proved to be too difficult for him because he did not have an assistant as was the case with his previous employment, and he found the on-site workload to be too heavy.
Therefore, in September 2018, he outlaid $18,000 to buy some surveying equipment, and he set up his own business in the hope that he could better manage the workload within his physical limitations: T189.25. He continued to operate in that way between September 2018 and February 2020, however, his earnings fell to about half of his previous earnings before the lumbar surgery carried out by Dr Pope in June 2014. During that time, his work was interrupted by severe flare-ups of his back condition that required him to take rest breaks. These flare-ups occurred every few weeks, and they would last for several days.
In February 2020, the plaintiff secured alternative surveying work in Melbourne. This is not a salaried position. He gets paid by the hour with a minimum 4 hour call-out-rate. He has difficulty working long hours. He is hoping to change his employment to something less physically demanding. Whilst waiting for surveying jobs to materialise, he sometimes works the morning shift as an Uber driver.
The plaintiff continues to take significant medication to manage his condition. These comprise Prodeinextra, paracetamol, codeine phosphate, 500 ml Meloxicam 7.5, Diazepam and Norgesic. This combination is for pain relief, muscle spasm and anti-inflammatory effects.
Following the surgery to his back in June 2014, the plaintiff has been left with ongoing genito-urinary problems, which he finds painful and distracting. He has been receiving treatment from a psychologist to assist him in managing these issues.
In addition to needing medication to manage his problems the plaintiff has required psychological counselling. In that regard, he has learnt to use mindfulness and mediation techniques to try and take his mind off his pain.

[62]

Issue 3 - Duty of care, scope and content

It is well settled that a doctor and patient relationship gives rise to a single comprehensive duty of care, as was stated in Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58, at [5]: "The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment: Sidaway v. Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871, per Lord Diplock at p 893; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case: Gover v. South Australia (1985) 39 SASR 543, at p 551. It is of course necessary to give content to the duty in the given case." [References omitted]
The content of that duty of care must be defined by the Court in the context of the case at hand: Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18, at [7] and [63].
In that regard, in this case, the scope of the duty of care that Dr Pope owed to the plaintiff in the clinical setting was to take reasonable care when reviewing and considering the history of the plaintiff's presenting problems; to conduct an adequate examination of the plaintiff; to take reasonable care when considering the clinical findings and any test results; and to arrange further relevant investigations if considered necessary before recommending that the plaintiff undergo surgery, including not to recommend surgery that was unnecessary in the presenting circumstances.
That said, the duty to take reasonable care was not absolute in the sense that Dr Pope was not duty-bound to make a correct diagnosis in circumstances, where there was reasonable scope for variations in clinical management, including scope for a reasonable margin of error in making interpretative clinical judgments involving diagnostic decisions.
In this context, it must be recognised that the practise of medicine is a combination of the skilled application and interaction of the art and the science involved, particularly concerning where decisions must be made as to clinical interpretation and diagnosis.

[63]

Issue 4 - Defence claimed pursuant to s 5O of the CL Act

Dr Pope's defence has claimed the sheltering effect of s 5O of the CL Act, which provides as follows: 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.
Dr Pope carries the burden of proof for establishing a s 5O defence: Dobler v Halvorsen (2007) 70 NSWLR 151; [2007] NSWCA 335, at [60]-[61]; Sydney South West Area Health Service v MD [2009] NSWCA 343, at [21], [51].
In support of the claimed s 5O defence, Dr Pope relied upon the following particular matters: 1. He had performed an appropriate and thorough examination of the plaintiff at his initial assessment, and he had documented his findings to an acceptable standard; 2. The MRI scan dated 23 October 2013 demonstrated an L5/S1 disc bulge with right sided lateral recess narrowing and nerve irritation, which he considered to have been consistent with the plaintiff's presenting symptoms, and which were also consistent with his findings on his clinical examinations of the plaintiff; 3. His findings on his examination of the plaintiff, combined with the results of imaging investigations, were consistent with the plaintiff's contemporaneous complaints; 4. His treatment plan for the plaintiff's lumbar spine was an appropriate response to the reported symptoms which the plaintiff had disclosed in the clinical setting; 5. The plaintiff made no complaints that were consistent with thoracic spine pathology at any time when in the clinical setting; 6. None of the symptoms the plaintiff described to Dr Pope in the clinical setting were consistent with a T5/6 exostosis; 7. The subsequent diagnosis of a T5/6 exostosis was an incidental and unrelated finding that arose in a different clinical context, and its existence was not reasonably foreseeable to a neurosurgeon in Dr Pope's position at the time.
Those particular matters were supported by the expert opinion of Professor Sheridan, who as someone who examined neurosurgical trainees, was suitably qualified to express such views, not only as to his own manner of practice, but also from the perspective of what constituted competent standards of professional practice by neurological peers in Australia.
The plaintiff argued that Dr Pope's claimed s 5O defence should not be upheld on the basis that, for a professional to obtain the sheltering benefit of s 5O of the CL Act, it is necessary to satisfy two criteria: first, to identify the specific "practice" that was in existence at the time the impugned service was provided: McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476, at [160]; and secondly, to establish that practice was widely accepted by the profession in question.
In this case, the question of whether the existence of a defined established practice has been established seems to me to be an incomplete inquiry. This is because the focus of s 5O requires the discernment of competent professional practice, which must necessarily allow for a range of circumstances that could be either competent or incompetent practices: Sparks v Hobson [2018] NSWCA 29, at [31].
Findings on those matters are dependent upon the underlying factual circumstances, and the conclusions to be drawn from relevant aspects of the expert medical evidence on standards of practice.
In my view, evidence describing what relevantly constitutes competent practice can arise in a variety of circumstances, in a range, either in the form of a recognised or a published protocol, or in a description given in oral evidence. Even then, recognising that the practice of medicine is both an art and a science, in this context there must be some scope allowed for variations in practice based on the exercise of reasonable clinical judgment within a range of options in the application of any identified standards and guidelines to the factual circumstance of a particular clinical setting.
On behalf of Dr Pope, and based on the evidence of Professor Sheridan, it was submitted that in respect of all aspects of his management of the plaintiff, he had acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice.
Professor Sheridan has been shown to be suitably qualified to express a view on what should be considered as being applicable standards of practice, as was discussed in McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476, at [191]. His professional qualifications include examining trainee neurosurgeons. In fact, he had a role in training and examining Dr Pope.
I consider that he is therefore well-placed to indicate whether or not Dr Pope's clinical management of the plaintiff's problems, as was disclosed to him by the plaintiff, was according to the required standard widely accepted by peers. His specific opinion, as cited earlier, was to the effect that Dr Pope had complied with those requirements in an exemplary way.
The plaintiff's submissions which seek to dis-apply s 5O of the CL Act to Dr Pope's management of the plaintiff's problems are founded on the proposition that Professor Davis gave evidence to the effect that he would have approached the plaintiff's management differently. In my view, that approach does not form a proper basis for concluding that Dr Pope's management was below the standard of what was widely accepted by professional opinion as competent professional practice.
The submissions on behalf of Dr Pope correctly make the point to the effect that it is not sufficient for the plaintiff to simply point to a different form of clinical management to that which is sought to be impugned as being negligent where reasonable minds might differ as to what should occur in the course of exercising clinical judgment in the presenting circumstances.
In that regard, the evidence of Professor Davis did not go so far as to state that Dr Pope's management fell short of acceptable standards of care. This is a point of considerable importance to assessing the claim of a s 5O defence because peer professional opinion on what might constitute competent professional practice need not be a universal or even a majority view: s 5O(3) and (4) of the CL Act.
Significantly, the evidence of Professor Davis did not specifically traverse, traduce or contradict the opinion of Professor Sheridan that dealt with the elements of s 5O of the CL Act.
Dr Pope submits that the assertion he should have suspected a thoracic cause for the plaintiff's presenting problems in 2013, as posited by Professor Davis, should not be accepted, as that formulation falls short of positively suggesting that a surgeon in Dr Pope's position, acting reasonably, would have proceeded in that manner.
In that regard, Dr Pope's evidence was that he had dismissed the possibility of a thoracic cause for the plaintiff's symptoms at the time because of the nature of the plaintiff's specific lower limb complaints as had been disclosed to him.
This is in the context where the plaintiff frankly acknowledged that he did not disclose the full extent of his sensory problems that were later revealed to have extended higher on his right side, near his navel, and later to Dr Simon, to the level of his right nipple.
In my view, to hold Dr Pope liable in the face of that non-disclosure would be to apply a false standard, not only because of the plaintiff's material non-disclosure of sensory symptoms, where Dr Pope had asked the plaintiff open questions for him to describe his concerns at the outset, following which the plaintiff only related his sensory concerns affecting his lower right leg, which was concordant with a lumbar problem, but also because Professor Davis' analysis was necessarily constrained by hindsight considerations due to the manner in which he had been instructed by the plaintiff's solicitor.
On the question of whether lumbar surgery should have been undertaken in the circumstances, in his own evidence, Dr Pope acknowledged that whilst it was true that there would be many neurosurgeons who would not have contemplated operating on someone of the plaintiff's age with his presenting signs and symptoms (T271.37 - T272.25), he nevertheless defended his decision to operate, stating that "the vast majority of neurosurgeons in Australia would perform what we call a local discectomy and remove a fairly small portion of the nucleus pulposis content": T271.37 - T272.25.
Dr Pope's cited explanation was not irrational within the meaning of s 5O(2) of the CL Act. It was also cogently supported by the rational and uncontradicted evidence of Professor Sheridan. Whilst Dr Pope's cited explanation allowed for the fact that there was a different cohort of neurosurgeons who might choose not to operate in the plaintiff's presenting circumstances (T269.46 - T270.10), that concession does not serve to diminish or to dis-apply a s 5O defence in this case. This is because peer professional opinion within the meaning of that section does not have to be universally accepted in order for it to be widely accepted: s 5O(4) of the CL Act.
Dr Pope explained the context for different surgeons approaching matters differently, when he said, without challenge, as already referred to at paragraph [182] above, that the vast majority of neurosurgeons in Australia, depending on the training and styles of operating, would have performed the procedure he performed on the plaintiff to remove nucleus pulposis material in the context of a tear of the annular fibrosis in the vicinity of an L5 nerve root: T271.37 - T272.25. There was no material criticism of his training or of his style of operating raised with him when he was cross-examined.
Professor Sheridan considered that Dr Pope's plan of management and treatment of the plaintiff, which he described to be exemplary, was considered to be standard care in the plaintiff's presenting circumstances: Exhibit "B", Vol 2, pp 371 - 374. He reiterated that view in his oral evidence: T368.9 - T368.22.
Professor Sheridan's statement to that effect was not the subject of direct contradiction, nor was its effect diluted in any material way by other evidence, whether written or oral.
The evidence of Professor Davis, which suggested a different clinical pathway for investigation, including investigating whether there was another explanation for the plaintiff's symptoms due to the possibility of a problem located at a higher level in the spine before undertaking lumbar surgery, was based on his personal approach.
In my assessment, that approach, whilst obviously rational and cautious, must be read down in a s 5O analysis, not only because it was affected by hindsight considerations, but also because it was not described as being widely accepted peer professional opinion concerning what constituted competent practice. Whilst it was a rational but differing clinical approach, as is allowed for by the terms of by s 5O(3) and (4) of the CL Act, it did not have the effect of displacing or negating the validity of the opinion of Professor Sheridan.
In weighing the competing opinions and approaches taken by Professor Davis and Professor Sheridan in their review of Dr Pope's management, regard must be had to the reasons for the respective opinions and the manner in which they formed their opinions.
In that regard, the assumptions made by Professor Sheridan, and the materials he considered, as identified at paragraphs [83] - [87] above, were in conformity with the rigour required by the Expert Witness Code comprising Sch 7 of the Uniform Civil Procedure Rules 2005 (NSW). His analytical approach was plainly prospective and it was unaffected by hindsight considerations: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62. The assumptions concerning the clinical actions of Dr Pope, which based Professor Sheridan's opinions, were sufficiently similar to the factual evidence in the proceedings. This formed a proper basis for an acceptance of his opinions: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].
In contrast, the approach taken by the solicitor for the plaintiff obtaining the expert opinion of Professor Davis was entirely different. In analysing that approach I do not intend any criticism of Professor Davis' standing as a neurosurgeon, or his standing as an expert witness. His professionalism in taking on the task is commendable and undoubted.
However, the solicitor for the plaintiff instructed Professor Davis in a way that started with hindsight propositions, as identified in the questions that were asked of him, as explained at paragraphs [76] to [78] above.
Plainly, in discharging his role as an expert witness, Professor Davis did the best that could be done in the circumstances with regard to the materials that were provided to him for his consideration. However, the questions he was asked to address necessarily constrained his analysis. It was not up to him to identify the plaintiff's case. He was merely responding to the questions that were asked of him.
The approach taken by Professor Davis was plainly affected by the hindsight considerations embedded in the questions asked of him. Analysis of Professor Davis' evidence on the s 5O questions reveals that his evidence did not go so far as to articulate a reasoned rebuttal of Professor Sheridan's view to the effect that Dr Pope's clinical and surgical management of the plaintiff was exemplary, and was in line with standard practice.
Consequently, in those circumstances, I prefer and accept Professor Sheridan's opinion on those matters. Accordingly, I find that Dr Pope has discharged the onus of proof of establishing his defence that in his management and treatment of the plaintiff's presenting problems, he had acted in a manner that was widely accepted in Australia by professional peers as competent professional practice: s 5O(1) of the CL Act. It follows that Dr Pope has established a complete defence to the plaintiff's claim against him: s 5O(1) of the CL Act.
Lest I be wrong in my finding which upholds Dr Pope's defence pursuant to s 5O of the CL Act, convention requires that I consider the remaining liability, causation and damages issues identified at paragraph [29] above. That consideration now follows.

[64]

Issue 5 - Breach of duty of care and negligence

The plaintiff's claim in negligence is founded upon an alleged failure by Dr Pope to take reasonable care as defined by the parameters of the particulars of negligence identified in the plaintiff's statement of claim. In essence, the pleaded criticisms concern the manner in which Dr Pope exercised his clinical judgment, a process partly the practice of an art, and partly the application of scientific knowledge, which should also be seen to be an art in itself.
I preface my consideration of the question of whether or not a breach of duty of care has been established by citing the remarks of Mahoney JA in Lowns v Woods (1996) Aust Torts Reports 81 - 376, at 161, as follows: "In my opinion, when a clinical decision of this kind is made, a court will be slow to find the decision wrong and, a fortiori, so wrong as to be negligent. There are, of course, cases in which it will do so. But, in my respectful opinion, this is not a case in which, having regard to the evidence, the court should reach such a conclusion."
The context for those remarks was that particular case was decided on common law principles which applied before the enactment of the Civil Liability Act 2002. Nevertheless, in my view, the first sentence of that statement of caution still holds good even when applied according to the more demanding requirements for a negligence findings as provided by s 5B(1) of the CL Act.
The plaintiff's pleaded case on the duty of care that was owed to him by Dr Pope focussed on the "operation and all medical services", as is evident from paragraphs 20 and 21 of the statement of claim filed on 26 November 2018. The duty of care was formulated as follows: "20. At all material times the Defendant owed the Plaintiff a duty of care to ensure that the Plaintiff's operation and all medical services were performed with reasonable care and pursuant to Section 5B(1) of the Civil Liability Act the Defendant owed the Plaintiff a duty to take reasonable precautions against risk of harm that was foreseeable and not insignificant. 21. At all material time (sic), the injury was preventable through the adoption of precautions and could have been avoided with the exercise of reasonable skill and care on the part of the Defendant." [Exhibit "B", Vol 1, pp 4 - 5]
However, from the way in which the case was fought, it is plain that the plaintiff was criticising Dr Pope's pre-operative medical services. Having regard to the pleaded particulars of negligence, and having regard to the wider ambit of the way the case was fought, no prejudice to the defendant arises from the plaintiff's departure from the formulation of the duty of care owed, as cited in the preceding paragraph: Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12, at [11]; Leotta v Public Transport Commission of NSW (1976) 9 ALR 437, at 446; 50 ALJR 666, at 668.
By paragraph 25 of the plaintiff's statement of claim filed on 26 November 2018, the following allegations of negligence were pleaded in support of his claim that Dr Pope had breached his duty of care: "(a) Failing to provide adequate clinical examination. (b) Failing to provide adequate investigation including referral to a neurologist. (c) Failed to adequate diagnose the Plaintiff. (d) Failing to provide adequate treatment for the Plaintiff. (e) Failed to carry out adequate radiological investigation. (f) The Defendant failed to treat the Plaintiff with due care and skill." [Exhibit "B", Vol 1, p 5]
In his defence, Dr Pope has denied all of the allegations of negligence that the plaintiff has made against him.
In the plaintiff's final submissions, two determinative focal points of argument were relied upon by the plaintiff as relevantly constituting Dr Pope's alleged breaches of his duty of care.
The first such point questioned the reasonableness of Dr Pope's decision to carry out surgery to the plaintiff's lumbar spine. The second point raised the question of whether the plaintiff's thoracic lesion ought to have been diagnosed at an earlier point in time. The following analysis proceeds in accordance with that approach, and in conformity with the framework of the statutory requirements of s 5B and s 5C of the CL Act.

[66]

Was it reasonable to carry out the lumbar surgery?

On the question of whether it was reasonable for Dr Pope to carry out the lumbar surgery on 16 June 2014, at the outset it must be noted that the plaintiff had agreed to the lumbar surgery carried out by Dr Pope, albeit after some initial hesitancy on his part.
The plaintiff's decision to have the lumbar surgery was made against a background of his evolving and persisting sensory symptoms in his right lower limb. A significant factor for consideration in that background is the fact that the plaintiff had not revealed to Dr Pope, or to Dr Lam for that matter, that he was also experiencing abnormal sensory symptoms on his right side, including up to the level of his navel.
Whilst I accept that the plaintiff was not possessed of medical knowledge that such symptoms were a relevant consideration for Dr Pope to take into account when making a diagnosis, and whilst I accept that he was primarily concerned with the sensory changes in his lower leg, the fact remains that he did not disclose all of his neurological symptoms to Dr Pope, where the undisclosed symptom has been shown to have been of considerable diagnostic significance.
If in contrast, the existence of such symptoms had been made known to Dr Pope, this would have required a consideration of whether the symptoms were due to a problem in the plaintiff's thoracic spine, as explained by both Professor Sheridan and Professor Davis.
It is noteworthy that the plaintiff also did not disclose the omitted symptom to Mr Kelly, the treating physiotherapist, or to Dr Steel. The omitted symptom was only revealed to Dr Simon, in August 2015 in a different investigatory context.
Absent the plaintiff disclosing that material symptom, Dr Pope said, and I accept, that in his clinical evaluation he had dismissed the prospect of the plaintiff having a problem that had its origins higher up in his thoracic spine.
Pre-operatively, Dr Pope was in the position where he had imaging evidence of an annular tear at L4/5 and an associated disc bulge in that area. He had a history of symptoms that were concordant with pathology at that level, and there was evidence of denervation. Although the extent of the disc bulge was not great, his training obviously made him aware of the potential mechanism for leakage of annulus pulposis material to possibly cause nerve root irritation by a chemical process rather than by the process of contact with extruded disc material thereby placing mechanical pressure onto a nerve or a nerve root.
Reasonably, Dr Pope dismissed the possibility of a thoracic cause for the plaintiff's symptoms in the absence of symptoms that might have inculpated such a cause. Dr Pope had before him a set of symptoms that were concordant with a lumbar cause. He considered that was a sufficient explanation for him to direct his working diagnosis and treatment to lumbar issues. He explained, without challenge, that the way medical algorithms are applied in the clinical setting, without more, an investigation of the plaintiff's thoracic spine, as suggested by the plaintiff, based on the evidence of Professor Davis, was not indicated.
Having focussed on a lumbar explanation for the plaintiff's symptoms, Dr Pope initially pursued a conservative treatment pathway. This was even though at the outset he considered that surgery would ultimately be required. It would have been natural for a surgeon to think along those lines in the clinical circumstances.
In my view, Dr Pope's pursuit of conservative options from October 2013 to March 2014, and the ultimate timing of surgery in June 2014, a period totalling 9 months, cannot be properly described as him having "leapt" into the surgical option with undue haste as was being suggested on behalf of the plaintiff.
In the presence of the reported sensory losses to the right lower leg as described by the plaintiff, and a suspected denervating cause for those symptoms, Dr Pope was required to balance the potentially damaging risks associated with not operating against the potential risks associated with an operation. These matters were properly canvassed with the plaintiff and consent was given for the operation to proceed.
In light of that unfolding scenario, I find that the plaintiff cannot satisfy the pre-requisites required b s 5B(1) of the CL Act to base a finding of negligence in respect of the decision to operate on the plaintiff's lumbar spine.
In that regard, although there were foreseeable risks of operating, thereby engaging s 5B(1)(a) of the CL Act, and such risks were not insignificant, thereby engaging s 5B(1)(b) of the CL Act, the reasons given by Dr Pope for operating, as supported by the expert opinion of Professor Sheridan, indicate that Dr Pope had acted reasonably in proceeding to the lumbar surgery, which on the evidence, he carried out with due skill and care. In those circumstances, the plaintiff has not satisfied the mandatory requirement of s 5B(1)(c) of the CL Act for a finding of negligence to be made in respect of his decision to carry out lumbar surgery on the plaintiff.

[67]

Should the thoracic lesion have been diagnosed earlier?

The plaintiff's argument that an earlier diagnosis of his thoracic lesion should have been made was founded upon the opinion of Professor Davis. I have found that opinion to be unreliable as it was infused with impermissible hindsight considerations owing to the manner in which Professor Davis was briefed by the plaintiff's solicitor.
In my assessment, an earlier diagnosis of the plaintiff's thoracic lesion, as was contended by the plaintiff, could only have arisen if two essential conditions prevailed, as follows.
The first necessary condition is that Dr Pope would have to have been made aware of a relevant symptom that necessitated investigating the plaintiff's thoracic spine by pin-prick testing for sensation and MRI scanning along the lines that were pursued by Dr Simon some 2 years later. He was not given a history of any symptoms which would have justified such a course. Given his unchallenged evidence of how diagnostic medical algorithms are applied in clinical practice, he reasonably dismissed a thoracic cause.
For completeness, it should be noted that there is no equivalence between the diagnostic opportunity that Dr Simon had 2 years after Dr Pope's diagnostic opportunity came and went in 2013. The circumstances were not equivalent. Dr Steel, the second operating neurosurgeon, like Dr Pope before him, had not pursued testing of the kind Dr Simon had later instituted. There was no reason for him to do so as the plaintiff had still not disclosed or displayed the symptom that would have triggered the need for such testing to be undertaken. Furthermore, as identified in paragraph [231] above, in the intervening period, some of the plaintiff's symptoms as seen by Dr Simon had developed after the plaintiff's fall on 22 August 2014.
The second necessary condition would have been the advent of an emergent clinical discordance between the plaintiff's symptoms and imaging results when considered in terms of whether it was reasonable to infer a lumbar cause for the plaintiff's sensory symptoms, to the extent that he had disclosed them.
In fact there was concordance, not a discordance, as was explained by Professor Sheridan. In those circumstances, Dr Pope's pursuit of a concordant lumbar diagnosis and the consequential recommendation for lumbar surgery was not only reasonable, but it accorded with widely held peer professional opinion amongst peers practising in Australia. More than that, Professor Sheridan described Dr Pope's clinical management as exemplary.
In light of those circumstances, I find that the plaintiff cannot satisfy the prerequisites required by s 5B(1) of the CL Act to base a finding of negligence in respect of an alleged failure to investigate the possibility of a thoracic lesion being responsible for his symptoms.
In that regard, in light of the absence of a report by the plaintiff of relevant symptoms that might suggest a thoracic cause, although Dr Pope foresaw the possibility of a thoracic cause, reasonably, he dismissed it as insignificant: s 5B(1)(a) and (b) of the CL Act. The investigatory precautions that the plaintiff contends for in relation to a potential thoracic cause therefore did not relevantly arise on account of that non-disclosure. The plaintiff has therefore not satisfied the mandatory requirement of s 5B(1)(c) of the CL Act for a finding of negligence in not pursuing a thoracic diagnosis in 2013, or thereafter until 2015.

[69]

Issue 6 - Causation of harm

To sustain a finding of negligence that leads to an assessment of damages, the plaintiff must first satisfy the factual causation and scope of liability requirements of s 5D of the CL Act, which provides: 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.
Given my finding that the plaintiff has not established negligence, it would be inappropriate to identify alternative findings to the contrary. Accordingly, the causation analysis that follows, assumes that, for the sake of argument, the requirements of s 5B(1)(a) of the CL Act concerning factual causation have been satisfied, notwithstanding my findings to the contrary.
The remaining causation question to be considered concerns the scope of the defendant's liability for any causally related damages incurred by the plaintiff. Consideration of those questions is confounded in this case by a number of factors that cannot be ignored.
The evidence of Professor Sheridan, which I have accepted, identified a lumbar disc herniation in 2013 which demonstrated an impingement which warranted surgery. Professor Sheridan demonstrated this in the annotated 2013 MRI scans as referred to at paragraph [92] above: Exhibit "2", Images 1, 2 and 3.
In light of that evidence, I consider that from a causation perspective, the plaintiff is not entitled to have his damages assessed on the basis that his back surgery was unnecessary. In view of the clinical finding of impingement, and Dr Pope's conclusion that the plaintiff's symptoms were due to denervation, these being reasonable conclusions at the time, it would be inappropriate to award the plaintiff damages for the effects of that back surgery, including the additional localised pain which flowed from that surgery as foreseeable potential adverse consequences about which he had been adequately informed prior to the surgery.
On that analysis, the plaintiff is unable to extend the scope of Dr Pope's argued liability to those back problems: s 5B(1)(b) of the CL Act.
The causation questions which remain to be considered relate to the effects of a 2 year delay in the plaintiff having the thoracic surgery, the plaintiff's genito-urinary problems, and his psychological problems.
On the question of assessing the effects of the delay in having the thoracic surgery, that is, the delay in obtaining the earlier benefit of thoracic decompression surgery, there is a fundamental confounding factor that appears within the opinion of Professor Davis, as cited at sub-paragraph (3) of paragraph [78] above, where he indicated there was insufficient data to enable this question to be addressed: Exhibit "B", Vol 2, pp 201 - 202.
The analysis of this issue is not clarified to the benefit of the plaintiff by the evidence of Professor Sheridan and Professor Davis as summarised at paragraphs [73] to [100] above. This is so especially where it is common ground that the plaintiff's thoracic tumour was slow growing. Although Dr Bentivoglio expressed the general opinion to the effect the longer that spinal decompression surgery is delayed, the more likely it is there will be lasting neurological damage (Exhibit "B", Vol 2, pp 464 - 468), it is nevertheless necessary to rationally quantify such a scenario for damages to be assessable on that account.
It is permissible to assess the issue of causation with the benefit of hindsight: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124]. The plaintiff carries the onus of proving causation: s 5E of the CL Act. In this case, such proof requires cogent medical evidence that provides a rational nexus for a causation finding to be made in the plaintiff's favour.
In that regard the reports of Dr Steel and Dr Simon do not assist the plaintiff's case on causation because there is no reliable baseline identified in 2013 to enable a differential comparison between the thoracic symptoms in 2013 and those that were ultimately recognised and acted upon in 2015.
Dr Simon identified a period of three years during which the plaintiff had right lower limb sensory symptoms in the context of a slow growing tumour. In those circumstances, and understandably, neither of Dr Simon's 2015 or 2019 reports provide a rational non-speculative basis for identifying a discernible layer of additional damage that might be reasonably attributed to a delay in the plaintiff having thoracic surgery in that period.
The report of Dr Simon dated 26 June 2019 reiterated that the plaintiff's right buttock pain and his symptoms reported on 5 August 2015 and 9 December 2016, were neuropathic in nature and they were related to compressive thoracic neuropathy: Exhibit "B", Vol 2, pp 195 - 214. A differential analysis was not identified in that discussion. There is no evidence to suggest it could have been identified.
In my assessment, the medical evidence does not permit a reasoned non-speculative differential analysis that identifies a level of thoracic-related symptoms that existed in 2013, and a different level of such symptoms that existed in 2015, so as to enable a rational discernment of what might be considered to be a layer of symptoms that is compensable due to an argued delay.
The plaintiff bears the onus of proof to disentangle that issue. On the evidence adduced, I find that onus has not been satisfactorily discharged: Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, at [8]; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, at [4]; Glen v Sullivan [2015] NSWCA 191, at [43] - [51]; s 5D(1)(b) and s 5E of the CL Act.
That analysis is even further compounded by the variations in the mix of descriptions of the effect of the plaintiff's experience of an exacerbating fall at his work on 22 August 2014.
Whilst the plaintiff and the neurosurgical experts considered there was no lasting exacerbating effect on the plaintiff's sensory symptoms from that fall, in contrast, in his report dated 26 June 2019, Dr Simon recorded an account from the plaintiff that the fall caused back pain, which settled over a few days, but it also caused the plaintiff to suffer a worsening of the sensory disturbances in his right lower leg, which as at 2019, had continued to worsen: Exhibit "B", Vol 2, pp 243 - 248.
In those circumstances, it seems at least some of those worsening effects could well be the result of a novus actus interveniens that would limit the scope for assessing damages. This further compounds the task of arriving at a reasoned causation analysis.
A consideration of the likely cause of the plaintiff's genito-urinary complaints is also problematic. There has been no urological assessment of those complaints. Whilst some evidence emerged from the concurrent evidence of Professor Davis and Professor Sheridan to the effect that such problems can result from lumbar surgery, which of itself is another confounding factor, the unchallenged evidence in the report of Dr Bentivoglio dated 15 October 2017, which was based on a physical examination of the plaintiff at that time, was that the plaintiff's genito-urinary problems remain unexplained and under-investigated. This was in circumstances where there is no evidence of the plaintiff having a cauda equina syndrome that might have otherwise explained those problems: Exhibit "B", Vol 2, pp 464 - 468.
When Dr Brian Zeman, a consultant rehabilitation medicine specialist assessed the plaintiff on 12 February 2019 and prepared a report dated 3 March 2019 (Exhibit "B", Vol 2, pp 502 - 510), he considered that the plaintiff's current lumbar symptoms were due to the underlying lumbar condition for what Dr Pope originally operated. He also considered the plaintiff's genito-urinary symptoms and bladder dysfunction were unlikely to be due to the lumbar surgery and were much more likely to be due to the gradual compression that the plaintiff experienced in his thoracic spine: Exhibit "B", Vol 2, p 509. These unchallenged opinions raise causation obstacles for the plaintiff's case.
Accordingly, the compelling conclusion is that the plaintiff has not discharged the onus of proving that his genito-urinary problems were relevantly caused by the assumed negligence of Dr Pope: s 5B(1)(b) and s 5E of the CL Act.
This leaves the question of the cause of the plaintiff's undoubted ongoing psychological problems, however labelled, which on the foregoing analysis, is difficult to assess in terms of the causation analysis required by s 5D(1)(b) of the CL Act.
Nevertheless, some allowance has to be made for those problems when assessing non-economic damages, despite the confounding factors that weigh in the mix of factors requiring consideration.
Those matters will be taken up in the reasons for assessment of damages.

[71]

Non-economic loss

On behalf of the plaintiff, it was submitted that damages for non-economic loss pursuant to s 16 of the CL Act should be assessed at 36 per cent of a most extreme case. In contrast, on behalf of the defendant, it was ultimately submitted that such damages should be assessed at 26 per cent of a most extreme case. That submission was made on the basis that, contrary to my findings, all of the plaintiff's claimed problems had been caused by the assumed negligence of Dr Pope.
The assessment of such damages is an intuitive and evaluative exercise. I was impressed with the genuineness and understated nature of the plaintiff's account of how the events described in the evidence have changed his life and his ability to enjoy the amenity of his life. Following the surgery to his lumbar spine, the plaintiff developed localised disabling back pain at the site of that operation. He also developed urological persisting genito-urinary problems and has feelings of despair about his future.
Whilst he understandably links these matters to the events of which he complains with regard to Dr Pope's management of his condition, I must have due regard to the evidence already referred to on the causation issue as identified in relation to Issue 6.
Dr Kaplan's psychiatric assessment of the plaintiff identified a Major Depressive Disorder and a Pain Disorder, including a Somatic Symptom Disorder. On behalf of the defendant, Dr Skinner's assessment of the plaintiff was that he had an adjustment disorder with depression and anxiety. She accepted that he had a Somatic Symptom Disorder which she characterised as an excessive focus and overemphasis on complaints of physical symptoms such that this has hindered his recovery, although like Dr Kaplan, she accepts the plaintiff would benefit from a formal multi-disciplinary pain management treatment programme.
In considering the semantic differences in the respective psychiatric descriptions, in my view, Dr Skinner's formulation pays insufficient regard to the effect the described physical problems have had on the plaintiff as it downplays the plaintiff's subjective account, which I accept as truthful.
The adverse effect the described problems have had on the plaintiff's life, physically and psychologically have been profound and they are likely to remain as permanent features.
I have taken into account the post-operative reports of Dr Steel and Dr Simons. I have also taken into account the fact that the plaintiff faces the prospect of further lumbar treatment comprising repeat foraminal injections in his spine under CT guidance, and major surgery for anterior lumbar discectomy and fusion, as foreshadowed in the report of Dr Steel dated 18 January 2016: Exhibit "B", Vol 2, p 293
I have also taken into account the occupational therapy recommendations for the plaintiff's future management, which will plainly have an adverse impact upon his enjoyment of the amenity of his life, albeit that not all of those recommendations can be directed to the assumed negligence that has been claimed: Exhibit "B", Vol 2, pp 250 - 277.
If the plaintiff had succeeded in his claim, in its entirety, these matters would have called for a substantial assessment in terms of a comparison with a most extreme case according to the requirements of s 16 of the CL Act. In those circumstances, the submitted assessment of 38 per cent would have been apt.
However, that approach must be discounted in conformity with my causation findings. Doing the best I can to be fair to the plaintiff and not unfair to the defendant, I would have assessed the plaintiff's damages for non-economic loss at 30 per cent of a most extreme case which according to the current assessment table, equates to $159,500.

Dean v Pope

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