Dean v Pope

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]

Nature of case

1. These professional negligence proceedings claiming damages for personal injury are brought by the plaintiff, Mr Paul Rory Dean, against the defendant, Dr Raoul Pope, his treating neurosurgeon.
2. With the benefit of hindsight, the plaintiff claims that in 2013 and 2014, Dr Pope inadequately assessed his presenting symptoms. He claims this led to an unnecessary operation being performed on his lumbar spine. The plaintiff is aggrieved by the outcome of that surgery.
3. The central question to be determined in these proceedings is whether those claims can be sustained on a prospective analysis of the known factual circumstances. The proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW) ("CL Act").

Claim

1. The plaintiff's claim is that his presenting neurological symptoms, which he identified to Dr Pope as comprising abnormal sensory symptoms in his right lower limb, which were considered to have been referred from his spine, were inadequately assessed. He claims that inadequate assessment led Dr Pope to recommend the plaintiff have surgery to his lumbar spine. He claims that a proper assessment ought to have revealed the presence of a bony tumour in the thoracic spine, which required surgery at the level T5/6, and not the surgery which Dr Pope performed at the level L4/5.

Defences

1. Dr Pope denies he was in any way negligent. He claims that his assessment, treatment, and management of the plaintiff's presenting sensory problems, to the extent disclosed to him, was in accordance with peer professional practice that was at the time widely accepted in Australia: s 5O of the CL Act.
2. Initially, Dr Pope relied upon a limitation defence claiming the proceedings were brought out of time. Dr Pope no longer relies upon that defence.

Summary of outcome

1. Following my analysis of the factual evidence, the contemporaneous medical records, the expert medical evidence adduced by the parties, and the submissions of the parties, for the detailed reasons that follow, at length, I have concluded that the plaintiff's claim cannot succeed on the liability and causation issues. Lest I be found to have erred in that conclusion, in accordance with convention, and to the extent permitted by my findings, I have identified the damages that would otherwise have been assessable, in the sum of $611,850.

Facts not in dispute

1. The undisputed background facts can be stated as follows.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Central factual issue in dispute

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Issues calling for decision

1. 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.

Evidence overview

1. In the plaintiff's case, he and his former girlfriend, Ms Torrin Marquardt, were the only witnesses to give oral evidence on factual matters. Dr Pope was the only factual witness to give evidence in the defence case.
2. The respective expert neurosurgical witnesses met on several occasions to seek to identify matters on which they respectively agreed and disagreed. They gave their oral evidence concurrently in four disjointed sessions. This was so because of the way in which matters emerged in evidence, where procedural fairness required that some matters of contention be given further expert consideration.
3. This complication occupied hearing time well beyond the original estimate of the time allocated to the case. This resulted in delay, which then led to other delays. In my view, such inefficiency can be traced back to the limited manner in which the plaintiff's solicitor had instructed the plaintiff's expert neurosurgeon.
4. In addition to the neurosurgical experts, the parties retained expert radiologists on the liability issues. On the damages issues the plaintiff relied upon an expert neurologist and a psychiatrist. On those issues, the defendant relied upon the opinion of a forensic psychiatrist and a rehabilitation specialist.
5. The entire range of expert evidence will be summarised and evaluated in the appropriate detail and context before addressing the issues calling for decision.
6. The plaintiff presented an uncontentious chronological factual framework: Exhibit "A". The parties prepared a common Court Book comprising seven volumes with 2515 pages of medical materials and records, expert reports, and financial materials: Exhibit "B", Vol 1 to Vol 7. By agreement ultimately reached during the trial, some of those pages became superfluous: T27.9; MFI "12".

Credibility and reliability of testimony

1. The defendant made submissions which attacked the reliability of the evidence of the plaintiff.
2. Although I accept the submission made on behalf of the plaintiff that this is not a case that ought to be decided by questions of credit, the defendant's substantive credit challenges to the evidence of the plaintiff, and the plaintiff's challenges to the credit of Dr Pope, will shortly be considered.
3. I preface the consideration of those matters by stating that I am satisfied all witnesses did their best to give their evidence truthfully and accurately.
4. Given the passage of time since the events in question, and given the need for the exercise of caution when assessing the reliability of the memories of witnesses, which can at times prove fallible, the differences in aspects of the factual evidence given by the plaintiff and by Dr Pope require resolution in the context of the evaluation of contemporaneous documents that were created at or around the time of critical events: Watson v Foxman & Ors (2000) 49 NSWLR 315; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, at [31].
5. The differences of opinion within the evidence of the respective expert witnesses requires evaluation and resolution according to an acceptance or a rejection of the factual basis for such opinions, and on account of whether there is sufficient similarity between the assumptions underpinning that evidence and the factual findings sought by the parties: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].
6. In the paragraphs that follow I identify the contemporaneous impressions I recorded in relation to the evidence of the respective witnesses who gave oral evidence, as augmented by my analysis of the evidence.

The plaintiff

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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]

Ms Marquardt

1. Ms Marquardt, the plaintiff's former girlfriend, gave unchallenged evidence in which she described her observations of changes which became apparent to her in the plaintiff's physical capacities, his outlook on life, and his demeanour, in the pre and post-operative periods. She was not cross-examined. I accept her evidence in its entirety.

Consultant expert neurosurgeons

1. In my assessment, both Professor Gavin Davis (retained by the plaintiff) and Professor Mark Sheridan (retained by the defendant) did their best to provide their expert opinions to assist the Court. I am satisfied that they did so honestly.
2. In my view, the expressed differences in their respective opinions were based on their differing factual interpretations of the plaintiff's presenting symptoms and the interpretation of some professional literature referred to by Professor Davis. I reject the submission made on behalf of the defendant suggesting that Professor Davis was an unsatisfactory witness. I am satisfied that any perceived or argued difficulties arising from the evidence of Professor Davis were due to the limited manner and extent to which he had been instructed by the plaintiff's solicitor.
3. During the course of Professor Sheridan's oral evidence, on the fifth day of the hearing, he disclosed that Dr Pope had been his registrar and examinee whilst he was undergoing training as a specialist neurosurgeon: T311.19 - T312.7. Whilst the timing of that disclosure was surprising, the parties are in agreement that nothing of significance turns on those facts.

Dr Pope

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Summary of Dr Pope's evidence

1. 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.

General overview of the categories expert evidence

1. I preface my review of the categories of expert evidence by reiterating that I consider no credit issues arise from that evidence. That evidence stands to be evaluated according to its relevance and its determinative weight. The expert evidence in these proceedings was within five distinct categories.

First category - neurosurgeons

1. The first category of expert evidence comprises the respective evidence of the consultant neurosurgeons, Professor Davis and Professor Sheridan. Their oral evidence which was given in four concurrent sessions, was explanatory of their initial reports and their joint report. Their evidence was tested, and as such, this category of evidence provided the most useful source of guidance to determining the liability issues in dispute. That evidence will be examined in some detail before addressing the issues calling for decision as identified at paragraph [29] above.

Second category - radiologists' opinions

1. The second category of expert evidence comprised the respective opinions of the radiologists, Dr James Bowden (retained by the plaintiff) and Dr Michael Jones (retained by the defendant). Dr Bowden's report dated 30 November 2019 is part of Exhibit "B", in Vol 2, at pp 231 - 242. Dr Jones' report dated 20 May 2020 is also part of Exhibit "B", in Vol 2, at pp 391 - 340.
2. Those reports analysed the significance of the imaging evidence. As such, that evidence was of limited assistance in determining the liability issues in dispute where the required approach is a prospective analysis of the manner in which Dr Pope exercised his clinical judgment as a neurosurgeon.
3. The radiological evidence which based Dr Pope's clinical approach was not in dispute. The retrospective opinions of Dr Bowden and Dr Jones did not materially contribute to that analysis. Subject to what follows, the utility of their reports was that they explained the relevant neuroanatomy, but they did not provide determinative guidance on the liability issues.
4. In reviewing those reports, in his oral evidence, Professor Davis identified a conflated descriptional error in Dr Jones' report in which by his descriptions he had incorrectly identified an anatomical structure in the spine, and he had incorrectly confused and mis-described the annulus pulposis and the nucleus pulposis: T374.30 - T376.2.

Third category - other neurological opinions

1. The third category of expert evidence respectively comprises the expert neurological opinion by Dr Neil Simon, who provided a report dated 26 June 2019 for the plaintiff's solicitor on causation and damages issues (Exhibit "B", in Vol 2, at pp 243 - 302), and the neurosurgical report dated 16 October 2017 by Dr Peter Bentivoglio who had been retained by one of the plaintiff's former solicitors: Exhibit "B", in Vol 2, at pp 464 - 468. Each of those experts had examined the plaintiff. Their reports were not the subject of challenge. The evidentiary utility of those reports is that they assisted in matters of diagnosis and in the assessment of damages, and they add some explanatory detail to matters of historical significance. Reference will be made to those matters where it becomes relevant to do so.

Fourth category - forensic psychiatrists

1. The fourth category of expert evidence comprises the respective forensic psychiatry reports of Dr Robert Kaplan dated 23 January 2019 who was retained by the plaintiff's solicitor (Exhibit "B", in Vol 2, at pp 280 - 292), and Dr Yvonne Skinner dated 17 June 2019 who was retained by the defendant's solicitor (Exhibit "B", in Vol 2, at pp 469 - 491), and their joint report dated 3 June 2020 (Exhibit "B", in Vol 1, at pp 24 - 28). That body of evidence was not the subject of challenge. It will be referred to in the course of my reasons for the assessment of damages.

Fifth category - miscellaneous damages reports

1. The fifth category of expert evidence comprises the miscellaneous occupational therapy and rehabilitation opinions which relate to damages issues. These do not require particular reference or analysis at this point.

Evidence from expert neurosurgeons

1. Both Professor Davis and Professor Sheridan provided a series of written reports, starting with primary reports followed by sequential commentaries. By agreement between the parties, two identified reports of Professor Davis were not read. These witnesses met in conclave and produced a joint report in which substantial agreements were recorded. They then gave their oral evidence concurrently in an extended sequence of four sessions. That occurred because of time constraints and because of matters arising requiring time and attention on account of procedural fairness. The crucial expert evidence is summarised as follows.

First report of Professor Davis - 9 September 2019

1. 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]
2. 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.
3. 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?
4. Those questions do not correctly or sufficiently frame the issues to be determined in this case because they start from a hindsight premise.

Second report of Professor Davis - 16 April 2020

1. The parties agreed that the report of Professor Davis dated 16 April 2020 was not to be read in the proceedings: T25.14. It was removed from its former place in the Court Book at pp 191 - 194.

Third report of Professor Davis - 1 May 2020

1. The parties agreed that the report of Professor Davis dated 1 May 2020 was not to be read in the proceedings: T25.14. It was removed from its former place in the Court Book at pp 186 - 190.

Fourth report of Professor Davis - 6 August 2020

1. The third report of Professor Davis, dated 20 August 2020, was in the form of a supplementary report that was prepared in response to a report prepared at the request of the defendant by Professor Sheridan, dated 3 August 2020, where that report reviewed three MRI images that had been taken of the plaintiff's spine on 23 October 2013.
2. The essential issue raised in this report is the identification of a dispute between the respective neurosurgical experts that arose from their oral testimony. Specifically, whereas Professor Sheridan considered that the MRI scans demonstrated evidence of chemical nerve root irritation causing sensory symptoms without severe mechanical compression, Professor Davis suggested that "such chemical irritation is not demonstrated" in the subject scans: Exhibit "C", pp 1 - 3. Those differing opinions were based on the views formed in the eyes of the respective beholders and they stand to be reconciled, if possible.

First report of Professor Sheridan - 27 May 2019

1. 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.
2. 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).
3. 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.
4. 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.
5. 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.

Second report of Professor Sheridan - 27 April 2020

1. 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.
2. 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.

Third report of Professor Sheridan - 29 May 2020

1. On 29 May 2020, Professor Sheridan prepared a further short supplementary commentary in which he addressed a question posed to him by the defendant's solicitor: Exhibit "B", Vol 2, p 352.
2. The question related to the differences found on physical examination of the plaintiff. Dr Pope had found the plaintiff had bilateral weakness in both flexor halluces longus muscles whereas the examination by the treating physiotherapist had failed to demonstrate this. Professor Sheridan explained this may have been due to pain and therefore it may be interpreted as a non-reproducible clinical sign. He did not consider it to be due to a thoracic cord compression, saying it was more likely to be due to pain coming from a lumbar disc problem. In those circumstances, he disagreed with Professor Davis on that point.

Fourth report of Professor Sheridan - 3 August 2020

1. On 3 August 2020, Professor Sheridan prepared a further short supplementary report at the request of the solicitor for the defendant following on from his oral evidence in which MRI images taken on 23 October 2013 (and as seen by Dr Pope), where those images were discussed. He attached three MR images annotated with added indicative arrows and text to demonstrate his view that lumbar nerve compression and irritation was visible on those scans. In the sub-paragraphs that follow, extracts of those scans are incorporated in conjunction with his explanations. His oral evidence on those images referred to enlarged copies printed on an alphanumeric grid for more convenient reference: Exhibit "1". He described those images in the following terms: 1. The first image was a sagittal T2 weighted section to the right of the midline showing a disc protrusion touching the traversing nerve root: 1. The second image was an axial T2 weighted image demonstrating one level above the third image showing the nerve root without compression 1. The third image was an axial T2 weighted section which demonstrates the disc protrusion impinging on the nerve
2. Professor Sheridan described the third image as demonstrative of his earlier testimony discussing chemical irritation from the nucleus pulposis touching the nerve root as an explanatory cause for pain and sensory symptoms without the presence of severe mechanical compression of the nerve. He identified his opinion that the described changes were concordant with the plaintiff's complaints of right lower leg pain and sensory change at the time this scan was taken on 23 October 2013: Exhibit "2". That evidence was relied upon as justification for the lumbar surgery carried out by Dr Pope.

Joint report by Professors Davis and Sheridan 9 June 2020

1. 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.

First concurrent evidence session - 16 July 2020

1. 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.

Second concurrent evidence session - 23 July 2020

1. 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.

Third concurrent evidence session - 17 September 2020

1. The first concurrent evidence by Professor Davis and Professor Sheridan was on 17 September 2020: T403 - T420. The following matters of relevance emerged: 1. This session was convened to enable a discussion on the MRI images. In that regard, Professor Sheridan had produced a further report dated 3 August 2020 (tendered as Exhibit "2"), which referenced still MRI images taken on 23 October 2013 with the aim of depicting sites of chemical irritation or signs of contact between protrusion of disc material and nerve tissue as explained at paragraph [92] above: T403.11 - T403.18; 2. Professor Sheridan marked Image 1 with two arrows at grid reference H6 to demonstrate first, the location of permeation of nucleus pulposis, and secondly, material traversing the nerve root: T404.15 - T404.20 3. That marking was identified in contrast to grid reference G5, which showed a normal nerve root that was not compressed: T404.31 - T404.46; 4. This evidence identified a disagreement between Professor Sheridan and Professor Davis on the interpretation of the scan as showing a compression: T405.10; T412.12; 5. The experts identified an area of disagreement on the interpretation of a 2005 journal article as to the connection between back pain and leg pain: T413.37 - T415.30. In my view, ultimately, nothing turns on that article or that disagreement in a prospective analysis of Dr Pope's clinical decision making; 6. This session had to be adjourned for reasons of procedural fairness to enable the plaintiff's counsel to read the journal materials which were referred to by the experts. The failure to address this issue in a timely manner occurred due to the inaction of the plaintiff's solicitor: T415 - T420; T425.28 - T425.33. Ultimately, nothing turned on this material.

Fourth concurrent evidence session - 3 December 2020

1. The first concurrent evidence by Professor Davis and Professor Sheridan was on 3 December 2020: T425 - T434. The following matters of relevance emerged: 1. The purpose of this session was to reconvene and continue the previous truncated session after the parties, particularly the plaintiff's side, had an opportunity to consider the series of published articles comprising Exhibit "3": T425; 2. Professor Davis identified literature that in his view demonstrated that thoracic cord compression could cause sciatica: T427.11; T429.20 - T429.29; 3. Professor Davis identified that the referenced articles referred to patients with paraesthesia and pain in the lower limbs typical of sciatica: T427.19 - T427.45; T428.13 - T428.22; 4. In answer to that interpretation, Professor Sheridan indicated the articles within Exhibit "3" specifically described leg pain as distinct from paraesthesia or pins and needles: T430.9 - T430.23; 5. In response, Professor Davis produced a further explanatory paper which was tendered as Exhibit "B" in the voire dire: T432.17. Plainly, this caused procedural disadvantage to the defendant, and this session had to be adjourned: T434. Ultimately, nothing turned on this question.

Reports from consultant radiologists

1. Reports from the consultant radiologists, Dr James Bowden and Dr Michael Jones require review as follows.

Report of Dr James Bowden - 30 November 2019

1. The plaintiff's solicitor obtained a report dated 30 November 2019 from Dr James Bowden, an interventional and diagnostic radiologist. It becomes unnecessary to review this report in detail as it deals with uncontroversial historical descriptions and it was tendered in a heavily redacted form which limits the analysis for its evidentiary utility: Exhibit "B", Vol 2, pp 231 - 242

Reports of Dr Michael Jones - 30 April and 20 May 2020

1. The defendant's solicitor retained Dr Jones, a radiologist, to review the plaintiff's lumbar and thoracic imaging scans, to comment on Dr Pope's treatment of the plaintiff, and to comment on Dr Bowden's report dated 30 November 2019: Exhibit "B", Vol 2, pp 391 - 410.
2. There is no utility in reviewing Dr Jones' commentary on the report of Dr Bowden, particularly as there was a common view as to nomenclature of vertebral segments and the counting of vertebrae in view of the partial lumbarisation of L1, with an S1-S2 disc.
3. Dr Jones identified (at Exhibit "B", Vol 2, p 396), the need to note that the issue of neural encroachment must be determined from clinical assessment, where the severity of radiculopathy does not necessarily match the size of a protrusion or the extent of neural encroachment. This was further explained in the oral evidence of the neurosurgeons as being related to the level of pain and numbness: T378.11 - T378.26.
4. Dr Jones identified (at Exhibit "B", Vol 2, p 395), the mechanism whereby disc protrusions cause leakage of annulus pulposis material, a highly irritant substance, into the epidural space, which then sets up inflammation and can produce radiculopathy if it affects a nerve that is exiting through the intervertebral foramen or a descending nerve in the lateral recess of the spinal canal, where such radiculopathy can have a range of severities from mild to severe and disabling.
5. In other respects, Dr Jones was not qualified as an expert to comment on Dr Pope's clinical management, one way or another.
6. Dr Jones' report dated 20 May 2019 corrected a typographical error in his first report, and uncontroversially reviewed the CT and MRI scans. He provided some annotated copies of various images to illustrate his analysis. It is not necessary to review those at this point.

Reports from other neurosurgical/neurological specialists

1. Another historical neurosurgical report, from Dr Peter Bentivoglio, and a neurologist's report from Dr Simon must be included in the analysis for completeness, as follows.

Report of Dr Bentivoglio - 16 October 2017

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Report of Dr Neil Simon - 26 June 2019

1. The plaintiff's solicitor obtained a report dated 26 September 2019 from Dr Neil Simon, who had assessed the plaintiff on 5 August 2015 and 9 December 2016 at the request of Dr Steel. This report recounted those historical matters, the operative history and the material diagnostic finding that the plaintiff had a large dorsal epidural mass at T5 and T6 causing cord compression, subtle early myelomalacia of the left side of his spinal cord at that level: Exhibit "B", Vol 2, pp 243 - 248.
2. Dr Simon had carried out a pin-prick neurological examination on the plaintiff in order to arrive at his conclusions after obtaining confirmatory diagnostic imaging. Dr Simon's report is uncontroversial. It serves three purposes. First, it explains the historical sequence of event as already outlined, secondly, it provides evidence relevant to the assessment of damages, and thirdly, it seems to form a comparative clinical basis for the plaintiff to argue that Dr Pope should have pursued a similar clinical pathway to that which was followed by Dr Simon.
3. The latter purpose will be considered in the determination of the issue of whether Dr Pope had relevantly breached his duty of care to the plaintiff.
4. Dr Simon's earlier historical report will be considered in the determination of Issue 1.
5. I now turn to my consideration and determination of the issues calling for decision in this case.

Issue 1 - Findings on relevant factual matters

1. In the series of paragraphs that now follow, I record in detail my findings on relevant matters of fact on the 18 topics previously identified in the chronological context in which they arise. 1. Plaintiff's background circumstances; 2. Onset of significant symptoms; 3. Consultation with Dr Lam - neurosurgical referral to Dr Pope; 4. First consultation with Dr Pope - 15 October 2013; 5. Investigations ordered by Dr Pope; 6. Second consultation with Dr Pope - 12 November 2013; 7. Physiotherapy with Mr Kelly - 13 January 2014; 8. Deferral of lumbar surgery in March 2014; 9. Lumbar surgery by Dr Pope on 16 June 2014; 10. Post-operative course; 11. Exacerbating incident - A fall on 25 August 2014; 12. Continuing problems and further consultations with Dr Pope; 13. Second specialist opinion from Dr Steel; 14. Referral to Dr Simon; 15. Plaintiff's last consultation with Dr Pope - 12 August 2015; 16. Thoracic surgery performed by Dr Steel on 15 September 2015; 17. Further medical follow-up; 18. Plaintiff's residual problems.
2. Further relevant findings particular factual matters relating to damages, such as work effects, domestic effects, mitigation, and the plaintiff's most likely circumstances but for lumbar surgery, will be set out in the context of my reasons that relate to the damages issues.

(1) Plaintiff's background circumstances

1. The plaintiff was born in Belfast, Northern Ireland. After leaving school, he went to England, where he obtained a University degree in the science of building engineering specialising in surveying. He completed that course in 2012. As he had completed his degree course mid-year, coinciding in the northern hemisphere academic year, he took the opportunity to travel to Vancouver, in Canada.
2. In Canada the plaintiff initially worked as a labourer, and then as site manager on building sites. When his Canadian visa expired, he travelled to Australia to visit his brother in Sydney. He arrived in Australia on a working visa: T31.43 - T32.12. He has lived and worked in Australia ever since, apart from some time spent overseas on holidays.
3. The plaintiff was in reasonably good health before he travelled to Canada. He had played Gaelic football as his preferred sporting interest. He was also a proficient skier, hiker, and long-distance runner. He had no physical restrictions on exercising his earning capacity.

(2) Onset of significant symptoms

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

(3) Consultation with Dr Lam, neurosurgical referral to Dr Pope

1. On 24 September 2013, the plaintiff consulted a general medical practitioner, Dr Janet Lam, at the Redfern Medical Centre, concerning his symptoms: T34.22. At that time he was not experiencing any back pains that were in any way different to those he had experienced intermittently whilst carrying out heavy work on building sites: T34.29.
2. Dr Lam recorded that the plaintiff, at the age of 25 years, had a six month history of abnormal sensations down his right leg. These comprised a tingling cold sensation, with a feeling of weakness. She recorded the plaintiff's history of a worsening of symptoms in the previous month; Exhibit "B", Vol 1, p 36. This was the first contemporaneous record of the plaintiff's symptoms. Significantly, Dr Lam's referral note made no reference to the plaintiff experiencing abnormal sensations in his right side, or in the vicinity of his navel, as he described in his oral evidence in these proceedings.
3. Dr Lam arranged for a CT scan of the plaintiff's lumbar spine. This was reported upon by Dr Cheung Wong as showing a broad based postero-central and right para-central L5/S1 disc protrusion with significant narrowing of the right lateral recess. Dr Wong's 28 September 2013 report included a reference to a past history of hysterectomy. This was an obvious word processing error. Nothing turns on that error: Exhibit "B", Vol 1, p 35.
4. On the basis of the plaintiff's history and the reported radiological findings, Dr Lam appropriately referred the plaintiff for neurosurgical assessment. Initially, that referral was to Dr Renata Abrasko: Exhibit "B", Vol 1, p 36. As her next available appointment involved a wait of some months, and because he was seeking an earlier appointment, after he carried out a Google search for alternatives, arrangements were made for him to consult Dr Pope, who was able to see him within 2 weeks.

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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

(5) Investigations ordered by Dr Pope

1. Consistent with his letter to Dr Lam, at this first consultation, Dr Pope advised the plaintiff that the next advisory step would be for the plaintiff to have a CT-guided peri-neural cortisone injection directed to the right side of S1 to see if that procedure alleviated the plaintiff's symptoms. He also arranged for the plaintiff to have an investigatory MRI scan of his lumbar spine.
2. The report of the CT-guided right peri-neural injection, carried out by a radiologist, Dr Caristo, on 21 October 2013, was in the following terms: "CT GUIDED RIGHT S1 PERINEURAL INJECTION Using an aseptic technique and after-infiltration of the overlying skin with local anaesthetic, a 25 gauge needle was introduced under CT guidance adjacent to the right S1 nerve root. Position was confirmed and following this, 1 ml of celestone chronodose was introduced. No intra-procedural complications were encountered." [Exhibit "B", Vol 1, p 40]
3. The plaintiff described the effects of the perineural injection into his spine in general terms as producing a change in his previous leg sensations, but that the symptoms continued, and it made no difference to the sensations he was experiencing down his leg, and as he described up his right side to the region of his navel: T38.

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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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]

(7) Physiotherapy with Mr Kelly - 13 January 2014

1. On 13 January 2014, pursuant to a referral from Dr Pope on 12 November 2013, the plaintiff attended Mr Dan Kelly, for physiotherapy treatment. This was in the context where there was already an existing plan for the plaintiff to have surgery on his back. At the time he first saw Mr Kelly, the operation had been re-scheduled to March 2014.
2. Mr Kelly's report to Dr Pope regarding that consultation, and his subsequent treatment of the plaintiff, appears in Exhibit "B", Vol 1, at p 49.
3. Mr Kelly recorded the plaintiff's history of the presenting complaint as being right-sided low back pain with a pins-and-needles sensation into the first, second and third toes in his right foot, without a complaint of leg weakness: Exhibit "B", Vol 1, p 49.
4. The plaintiff was asked whether he recalled having complained to Mr Kelly about lower back pain. He said he thought that he might have done so: T43.48. His main concern as expressed to Mr Kelly concerned his sensory issues: T44.9. There is no record within the documentary evidence that the plaintiff told Mr Kelly of his right-sided sensory symptoms extending up his right side to the level of his navel.
5. Mr Kelly noted the plaintiff's history that the lifting and bending components of his work tasks made his symptoms worse. He noted an associated loss of range of lumbar flexion and extension, with reproduction of symptoms on right-sided bending, extension and on quadriceps testing.
6. Mr Kelly described the plaintiff's follow-up physiotherapy treatment as having produced "some promising results", using a combination of education, manual therapy, and targeted exercises, but chronicity of symptoms was noted.

(8) Deferral of surgery in March 2014

1. Dr Pope's printed administrative practice records show that on 3 February 2014, the surgery planned for 20 March 2014 was deferred to June 2014 because the plaintiff was experiencing some difficulty in taking time off work: Exhibit "B", Vol 1, p 50. Nothing of significance turns on that period of delay.

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

1. 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.
2. 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]
3. 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.
4. 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.

(10) Post-operative course

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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

(11) Exacerbating incident - A fall on 25 August 2014

1. On 25 August 2014, whilst at work on a building site, the plaintiff stepped onto a piece of plywood that, unbeknown to him, had rotted. He fell awkwardly through that plywood into a narrow trench below to about chest level. This incident caused him to experience some jarring. He felt pain on his left side and his left leg above the knee. It caused him stiffness and pain in that area and he had difficulty walking for several weeks. That fall also had the effect of for a time exacerbating the plaintiff's post-operative back pain: T122.26 - T122.31.
2. On about 18 September 2014, the plaintiff consulted Dr Lam about that injury as he was concerned that he might have aggravated his lower back condition. On 22 September 2014 he saw Dr Pope about that injury and he was referred for an MRI scan on 29 September 2014. That MRI scan identified no new injury. Fortunately, the plaintiff was allocated light duties following that fall, and those light duties then continued on indefinitely during the currency of that employment.
3. It is common ground that no lasting exacerbation had occurred from the plaintiff's fall at work on 22 August 2014. He received workers' compensation benefits in respect of that exacerbation. In his oral evidence the plaintiff said the injury from that fall "pretty much" resolved over time: T58.11.

(12) Continuing problems and further consultations with Dr Pope

1. The plaintiff continued to see Dr Pope between September 2014 and March 2015 for his ongoing symptoms.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

(13) Second specialist opinion from Dr Steel

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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]

(14) Referral to Dr Simon

1. 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]
2. 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.
3. 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.
4. 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."

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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

(16) Thoracic surgery performed by Dr Steel on 15 September 2015

1. On 15 September 2015, the plaintiff underwent thoracic surgery by Dr Steel at St Vincent's Hospital for the removal of the T5/6 calcified tumour and an associated cord decompression. The plaintiff was discharged from hospital on 20 September 2015. Exhibit "B", Vol 5, pp 1586 - 1592.
2. Following that surgery, the plaintiff felt some slight improvement in his symptoms in that he felt they were not as intense: T83.18 - T83.33. However, his back problems remained, and he found that these were exacerbated by the nature of his work.

(17) Further medical follow-up

1. Between 5 November 2015 and 28 December 2017, the plaintiff remained under the care of Dr Steel, and was seen by him in consultation on several occasions during that time: Exhibit "B", Vol 5, pp 1595 - 1610.
2. In that time, on 9 December 2016, the plaintiff was seen again by Dr Simon, who concluded that his ongoing and unusual right buttock pain was probably a consequence of the thoracic myelopathy, and was not typical of a nerve root or a more localised process. He recommended the plaintiff continue taking Lyrical for that pain: Exhibit "B", Vol 5, pp 1604 - 1605. This seems to have discounted a lumbar cause.
3. On 13 December 2017, at the referral of Dr Steel, the plaintiff underwent another thoracic and lumbar MRI scan with gadolinium at St Vincent's Medical Imaging: Exhibit "B", Vol 5, p 1608. Dr Bou-Haidar reported there were no new findings since the previous study. He described the post-operative appearance of the thoracic spine as stable, with the presence of myelomalacia in the left lateral aspect of the thoracic cord at the level of the superior endplate of T6, and a degree of foraminal stenosis at T5/6, from the residual component of the exostosis in that area, and some persistent mass on the right T5 nerve. No new findings were found in an examination of the lumbar spine scans. Stable mild spondylosis with disc bulge was noted at L5/S1, without protrusion or stenosis.
4. On 28 December 2017, Dr Steel reviewed the above MRI findings with the plaintiff in a telephone consultation. In light of the absence of any new findings, no further treatment was offered to the plaintiff, and the opportunity was left open for further consultations if required: Exhibit "B", Vol 5, p 1610.

(18) Plaintiff's residual problems

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Issue 2 - Relevant risk of harm

1. The requirements of s 5B(1) of the CL Act make it necessary to identify the relevant risk of harm or the true cause and potential mechanism of the injury in question: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [60], [62]; Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1, [2015] NSWCA 90, at [98];
2. The parties were invited to identify the relevant risk of harm. They did not directly address that question. Ultimately, it is a matter that has been left for the Court to determine.
3. Recognising that an assessment of the risk of harm must not be too precisely defined or confined, at the appropriate level of generality, it seems to me that in this case, the relevant risk of harm may be identified as being that an inadequate pre-operative surgical assessment had the potential to lead to unnecessary surgery, which if performed, could result in, and lead to, additional avoidable post-operative disability, and non-alleviation of the original presenting symptoms, including the possibility of an additional level of neurological damage if necessary surgery was needlessly delayed.

Issue 3 - Duty of care, scope and content

1. 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]
2. 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].
3. 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.
4. 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.
5. 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.

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

1. 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.
2. 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].
3. 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.

Issue 5 - Breach of duty of care and negligence

1. 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.
2. 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."
3. 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.
4. 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]
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.

Statutory requirements

1. Section 5B of the CL Act provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
2. Section 5C of that Act provides: 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
3. The first hurdle that the plaintiff must surmount for him to succeed, on both focal points of argument as identified in paragraph [316] above, is that he must satisfy the pre-requisites of s 5B(1) of the CL Act before the provisions of s 5B(2) and s 5C can be examined to see whether they have been relevantly engaged.

Was it reasonable to carry out the lumbar surgery?

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

Should the thoracic lesion have been diagnosed earlier?

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Conclusion on alleged negligence

1. The plaintiff has not made good his claim that Dr Pope was negligent in any of the manners alleged.
2. Lest I be found to be wrong in the analysis of the s 5O defence and in respect of the negligence question, in accordance with convention, it remains necessary to consider the question of causation.

Issue 6 - Causation of harm

1. 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.
2. 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.
3. 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.
4. 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.

Issue 7 - Assessment of damages

1. In the paragraphs that now follow I set out my assessment of the plaintiff's claim for damages.

Non-economic loss

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Past economic loss

1. On behalf of the plaintiff, it was submitted that damages for past economic loss should be assessed at $130,000 plus the commensurate loss of employer funded superannuation benefits. The base sum for that calculation was derived from an assumed average partial loss of earnings of $500 per week net over 260 weeks to the date of hearing. There is no suggestion that the plaintiff has unreasonably failed to mitigate his losses so as to require these damages to be discounted. In contrast, the defendant submitted that the plaintiff should not be awarded any damages for past economic loss. If the plaintiff's liability and causation case succeeded, that submission could not be accepted.
2. If my liability and causation findings were set aside with the effect that the plaintiff's liability and causation case was accepted, I would have assessed as reasonable the plaintiff's claim for past economic loss in the sum of $130,000.

Past loss of superannuation

1. On the foregoing approach, if past economic loss was to be assessed at $130,000, the consequential claim for past loss of employer funded superannuation at 9.5 per cent on $130,000 yields the amount of $12,350.

Future loss of earning capacity

1. On behalf of the plaintiff it was ultimately submitted that damages for future loss of earning capacity should be assessed at $250,000. In contrast, the defendant submitted that the plaintiff should not be awarded any damages for future loss of earning capacity.
2. If the plaintiff's case had been accepted, having regard to the opinion of Dr Zeman, he should be seen to be unfit for heavy manual work, including lifting and bending and the prospect of vocational re-training was raised as a serious suggestion in his case: Exhibit "B", Vol 2, p 510.
3. The occupational therapy assessment carried out on 13 February 2019 indicates that there is a range of the heavier normal commonplace day-to-day activity that would cause difficulty for the plaintiff: Exhibit "B", Vol 2, p 256. Those restrictions would obviously carry over into work-related activity.
4. In the case of a young man aged 33, with at least the equivalent number of working years ahead of him, those matters justify a buffer approach rather than the projection of a precise weekly loss based on artificial assumptions as to a weekly loss for projection on assumed likely future circumstances: s 13 of the CL Act; Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].
5. The evidence cited justifies an award for future loss of earning capacity: Paff v Speed (1961) 105 CLR 549, at p 566; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5.
6. In those circumstances, on the basis that the plaintiff's liability and causation case would have been accepted, I consider a reasonable buffer amount for future loss of earning capacity would be $250,000, including employer funded superannuation entitlements that would follow from such a loss of earning capacity.

Future domestic assistance

1. On behalf of the plaintiff it was ultimately submitted that damages for future domestic assistance should be assessed in the buffer amount of $50,000. In contrast the defendant submitted that there should be no award for this head of damage.
2. The opinion of Dr Zeman supports a claim for an average of about 2 hours per week for assistance with heavier domestic tasks: Exhibit "B", Vol 2, p 510. The amount of time is imprecise and the likely timing of onset for the full extent of that need is not capable of precise estimation or calculation.
3. In those circumstances I consider a discounted buffer sum of $40,000 would represent a fair and reasonable assessment for this head of damage.

Future out-of-pocket expenses

1. The evidence suggests the plaintiff will incur considerable future expense for medical, allied and surgical treatment. The damages schedule conceded that this head of damage should be assessed in the sum of $10,000.
2. This element of claim is not precisely calculable as there are significant imponderables, including as to causation. Putting aside the latter consideration for the purpose of argument, if the plaintiff's liability case had succeeded, and having regard to considerations of uncertainty over the timing of various future elements of expenditure, I consider that a fair and reasonable buffer allowance should be made in the amount of $20,000.

Past out-of-pocket expenses

1. In the defendant's oral submissions, counsel identified the fact that the plaintiff's out-of-pocket expenses had not been the subject of agreement: T459.10. It was made clear that it was the obligation of the plaintiff's solicitor to attend to this basic issue or face a finding that no out-of-pocket expenses have been proven: T459.24 - T459.41.
2. Leave was given for the plaintiff's solicitor to forward a note evidencing an agreement on out-of-pocket expenses: T465.46 - T466.1. It remains puzzling as to why the solicitor for the plaintiff did not take up that opportunity.
3. The Court Book contains a copy of a Medicare schedule in the total amount of $6632.30: Exhibit "B", Vol 2, p 525. Without annotation, agreement or formal evidentiary proof of a nexus between that amount and the issues in the proceedings, regrettably, I am compelled to find that the plaintiff's claim for out-of-pocket expenses remains unproven.

Summary of damages assessment

1. My assessment of the plaintiff's damages is summarised as follows: (a) Non-economic loss $159,500 (b) Past economic loss $130,000 (c) Past superannuation losses $12,350 (d) Future economic loss $250,000 (e) Future domestic assistance $40,000 (f) Future treatment expenses $20,000 (g) Past out-of-pocket expenses (not proven) Total $611,850

Disposition

1. The plaintiff has not succeeded in establishing that Dr Pope is liable to him in damages. Dr Pope is entitled to a verdict and judgment in his favour with costs. If the plaintiff's claim had been successful damages would have been assessed in the amount of $611,850.

Orders

1. I make the following orders: 1. Verdict and judgment for the defendant; 2. The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered 3. The exhibits may be returned; 4. Liberty to apply on 7 days' notice if further or other orders are required.

Amendments 21 December 2021 - Correction of typographical error in Table of Contents DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2021