Dean v Pope

rd v West Midlands Regional Health Authority [1985] 1 All ER 635 McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 McNamara (McGrath) v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646; [2005] HCA 55 Nationwide News Pty Ltd v Rush (2020) 380 ALR 432; [2020] FCAFC 115 Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9 Old v Miniter [2021] NSWCA 92 Penrith City Council v Parks [2004] NSWCA 201 Ratty v Haringey Health Authority [1994] 5 Med LR 413 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317; [2019] NSWCA 11 Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] 1 QB 493 Smit v Brisbane South Regional Health Authority [2002] QSC 312 South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 Sutherland Re; French Caledonia Travel Service Pty Ltd (In Liq) (2003) 59 NSWLR 361; NSWSC 1008 Texts Cited: D A Ipp (Chairman), Review of the Law of Negligence Report (Ipp Report), 2 October 2002 D Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed, 2018, Thomson Reuters) R Cross, Precedent in English Law (3rd ed, 1977, Clarendon Press) Category: Principal judgment Parties: Paul Dean (Appellant) Raoul Pope (Respondent) Representation: Counsel: S Prince SC with AD Campbell (Appellant) R Cheney SC with A Quinlivan (Respondent)

Solicitors: Gerard Malouf & Partners (Appellant) Meridian Lawyers (Respondent) File Number(s): 2022/00007729 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2021] NSWDC 670 Date of Decision: 13 December 2021 Before: Judge Levy SC File Number(s): 2018/00363440

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant (Mr Paul Dean) is a former patient of the respondent neurosurgeon (Dr Raul Pope). In 2013, the appellant experienced abnormal sensory symptoms in his right lower limb. The appellant's general practitioner referred him to the respondent for neurosurgical assessment. The appellant had a consultation with the respondent on 15 October 2013, during which consultation the respondent noted his tentative view that CT scans revealed a "recalcitrant L5 radiculopathy due to a L5/S1 disc herniation". The respondent recommended that the appellant have a perineural steroid injection and that an investigatory MRI study be undertaken of the appellant's lumbar spine. The injection relieved the appellant's sensory symptoms temporarily. Dr Sebastian Fung, a radiologist, reported to the respondent as to his findings on the MRI carried out of the appellant's lumbosacral spine. The report's findings, among other things, noted a transitional lumbosacral junction with likely sacralisation of L5/S1; at L4/5, loss of disc height and signal, and "broad based mild disc protrusion"; and that there was no nerve root compression. The respondent had a different opinion on the issue of nerve root compression to that of the radiologist, reporting that he believed there to be nerve root compression at the L5/S1 level. At the second consultation with the appellant, on 12 November 2013, the respondent recommended that the appellant have surgery on his lumbar spine for an L4/5 decompression, microdiscectomy and nerve root rhizolysis. On 16 June 2014, the respondent carried out the lumbar surgery on the appellant. There was no criticism of the respondent's surgical technique. During the surgery, the respondent discovered a disc bulge at the L5/S1 level, and an annular tear with leakage of nucleus pulposis material which had adhered to the nerve root. The appellant did not experience any material relief from his pre-operative symptoms after the surgery; and began to experience additional symptoms, including back pain. In March 2015, the appellant sought a further opinion from another neurosurgeon, Dr Timothy Steel. Dr Steel also did not suspect a thoracic cause for the appellant's complaints. In August 2015, a neurologist to whom the appellant had been referred took further MRI and CT scans of the appellant's thoracic spine, which revealed a large benign bone lesion or tumour that compressed his spinal cord at the level T5/6. The tumour was surgically excised the following month and it appears that this resolved the appellant's lower back pain but did not resolve his sensory symptoms. At first instance, the appellant alleged that: the symptoms with which he presented to the respondent, and for which he had the lumbar surgery, were attributable to the thoracic lesion; the lumbar surgery was unnecessary; and the respondent had wrongly diagnosed a lumbar cause and had proceeded to lumbar surgery with "undue haste", without first arranging for a specialist neurological examination and without first proceeding to consider and pursue a diagnosis that explained the presenting symptoms. The primary judge concluded that the appellant's claim did not succeed on liability and causation issues but that, had it succeeded, the damages would have been assessed at $611,850. On appeal to this Court, the principal issues were: 1. Whether the primary judge erred in applying s 5O of the Civil Liability Act 2002 (NSW) in the absence of evidence of nerve root compression and in circumstances where there was no discernible "practice" in the sense explicated in McKenna v Hunter and New England Local Health District [2013] NSWCA 476 at [160] (per Macfarlan JA). 2. Whether the primary judge erred in finding that the respondent had acted reasonably in proceeding to lumbar surgery. 3. Whether the primary judge erred in finding (having rejected the expert evidence of Professor Davis) that it was reasonable for the respondent not to pursue a thoracic cause for the appellant's symptoms.

The Court (Ward P, Macfarlan, Meagher, White and Brereton JJA) held, dismissing the appeal:

As to issue (1):

1. The question posed by s 5O of the Civil Liability Act 2002 (NSW) is whether "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". This requires identification of the "manner" in which the professional acted, and asking whether it was at the time widely accepted as "competent professional practice". "Professional practice" in s 5O refers to the manner in which professionals practise their profession, not to a particular protocol, procedure or process. "Competent professional practice" refers to what a significant body of competent professionals would have done. The past tense "was" is used, not to refer to a subsisting practice, but to highlight that the judgment is to be made as at the time of the relevant conduct: [233]-[236] (Ward P, in obiter), [258] (Meagher JA, agreeing with Brereton JA), [260], [266]-[267] (White JA, agreeing with both Ward P and Brereton JA), [314] (Brereton JA). McKenna v Hunter and New England Local Health District [2013] NSWCA 476; Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29, considered.
2. Once invoked, s 5O effectively provides the applicable standard of care and ought to be considered prior to breach and causation: [258] (Meagher JA), [260] (White JA), [273]-[274] (Brereton JA). Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29, applied.
3. The effect of the High Court's allowing the appeal in McKenna is that the ratio decidendi of this Court's decision ceased to exist, although such parts of the decision as were not overruled by the High Court remain dicta which may be highly persuasive: [263] (White JA). Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336; [1981] HCA 4; Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48; Sutherland Re; French Caledonia Travel Service Pty Ltd (In Liq) (2003) 59 NSWLR 361; NSWSC 1008, considered.
4. Section 5O cannot be satisfied by a defendant simply calling an expert to say that in unique circumstances with which the defendant was confronted, the expert would have acted in a similar fashion to the defendant and that he or she considers that other practitioners would have acted similarly. If the legislature had intended this construction, it would have used the words "would have been" instead of "was": [256] (Macfarlan JA, dissenting on this point).

As to issue (2):

1. The primary judge did not err in finding that the respondent had acted reasonably in proceeding to lumbar surgery. The observation made by the primary judge that the respondent had imaging evidence of an annular tear, and by his training could be taken to have known that leakage of nucleus pulposis material could cause irritation of the nerve root, did not lead the primary judge to err as to the reasonableness of the decision to recommend lumbar surgery. What led to that conclusion was that the appellant had presented to the respondent with symptoms that were concordant with a lumbar cause (and with an absence of symptoms to indicate a thoracic cause) and the MRI scan had indicated a disc herniation and associated disc bulge: [127] (Ward P), [259] (Macfarlan JA), [260] (White JA), [319] (Brereton JA).
2. The expert evidence of Professor Sheridan was that it was in accordance with reasonable, competent professional opinion for a decision to have been made to proceed to lumbar surgery having regard to the appellant's history and to the MRI scan that Professor Sheridan was adamant showed enough "nerve impingement, compression" to justify surgery: [130] (Ward P); [259] (Macfarlan JA), [319] (Brereton JA).

As to issue (3):

1. The primary judge did not err in finding that it was reasonable for the respondent not to pursue a thoracic cause for the appellant's symptoms. The history that the appellant presented was not indicative of a thoracic cause and the expert witnesses accepted that it would be a rare (if not almost impossible) occurrence that there be a thoracic cause for the symptoms that the appellant had disclosed at the time: [139] (Ward P), [259] (Macfarlan JA), [260] (White JA), [319] (Brereton JA).
2. The primary judge was entitled to find Professor Davis' evidence unreliable, in light of Professor Davis' failure to view the dynamic MRI scans on which he was providing an opinion, and omission to read the academic literature which he had cited and upon which he relied: [145] (Ward P), [259] (Macfarlan JA), [260] (White JA), [319] (Brereton JA). Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied.

JUDGMENT

1. WARD P: This appeal arises out of the dismissal of a claim brought by the appellant (Mr Paul Dean) against the respondent (Dr Raoul Pope), the appellant's treating neurosurgeon, seeking damages for alleged professional negligence on the part of the respondent in respect of the respondent's advice that the appellant undergo lumbar surgery (an L4/5 decompression, discectomy and nerve root rhizolysis surgery on the appellant's lumbar spine), which surgery was carried out by the respondent on 16 June 2014. Although the pleaded claim suggested a complaint as to the manner in which the surgery itself was performed, there was ultimately no complaint as to the respondent's surgical technique. Rather, the appellant contended that the lumbar surgery was unnecessary and that the decision to proceed with lumbar surgery was based on the respondent's incorrect assumption that the presenting symptoms were caused by lumbar pathology when they were in fact caused by cord compression at the thoracic level which was not identified by the respondent.
2. In particular, in oral submissions on the appeal the appellant identified the following two aspects of the alleged negligence: first, that the respondent operated when there was no medical or scientific foundation for the lumbar surgery (see, for example, at AT 2.10ff, AT 4.4ff; AT 6.14ff) (based on the proposition that there was no rational basis for such surgery in the absence of nerve root compression) and, second, that the respondent did so without adequate investigation of the lower limb symptoms (radiculopathy) with which the appellant had presented when there were contraindications to there being a lumbar nerve root compression (see AT 4.20ff; T 6.17) (those contraindications, as I understand it, being related to a complaint that on occasion the appellant experienced complete numbness of the foot). As to the first of those, the appellant does not seem to draw a distinction between carrying out the operation or recommending an operation (AT 6.37) (although, as noted, there was no complaint as to the surgical technique). Further, it appeared to be conceded during the course of argument that if there was a proper basis for the respondent to form the view that there was a compression of the nerve root in the lumbar spine then the appellant's claim would probably fail (AT 6.49), irrespective of whether there was adequate reason to apprehend that this would deal with the appellant's lower limb symptoms (or radiculopathy).

Factual background

1. In September 2013, the appellant experienced abnormal sensory symptoms in his right lower limb. The appellant's general practitioner referred him to the respondent for neurosurgical assessment. The appellant had a consultation with the respondent on 15 October 2013, during which consultation the respondent recommended that the appellant have a perineural steroid injection and that an investigatory MRI study be undertaken of the appellant's lumbar spine.
2. In cross-examination, the respondent accepted that, on presentation, the appellant's complaints included that on occasion there was complete numbness of his foot (see T 254.44-50) and that this was not consistent with a "dermatomal distribution" from the lumbar spine (see T 255.1-6). The respondent did not test the appellant's plantar reflexes (see T 255.19-20) at the initial consultation on 15 October 2013 and the respondent's notes indicated that the appellant had not expressed any complaint as to lower back pain (see T 257.8-10).
3. In his report to the referring doctor (Dr Janet Lam) of 15 October 2013, the respondent recorded that he had reviewed a recent CT scan of the lumbosacral spine which showed a vestigial disc at S1, S2 and a disc herniation at L5/S1 towards the right lateral recess. (A vestigial disc was explained by the respondent as an incomplete disc or a disc that could point to a congenital anomaly known as transitional vertebrae - see T 209.37-44.) The respondent recorded in that 15 October 2013 report (under the heading "[i]mpression", which he explained in his oral evidence indicated a provisional diagnosis or tentative view - see T 211.24-31) his opinion that the appellant was suffering from a "recalcitrant L5 radiculopathy due to a L5/S1 disc herniation". The report also stated that the respondent would like an MRI "to look at the anatomy more clearly and if there is disc extrusion, I feel we are heading towards surgery given that he is in chronic pain and chronic denervation". Chronic denervation was explained by the respondent as corresponding to the nerve being damaged permanently, "causing wasting and permanent neurologic deficit, including various modalities of weakness and numbness and so forth" (see T 211.40-50).
4. Neither at that initial consultation nor at subsequent consultations with the respondent did the appellant disclose that he was suffering from other sensory symptoms elsewhere at the thoracic level (a non-disclosure that the primary judge considered to be material - see below).

Proceedings

1. On 26 November 2018, the appellant brought proceedings in negligence against the respondent. As outlined above, the appellant's case in essence was that the symptoms with which he presented to the respondent in late 2013, and for which he had the lumbar surgery in mid-2014, were attributable to the thoracic lesion; that the lumbar surgery was unnecessary; and that the respondent had wrongly diagnosed a lumbar cause and had proceeded to lumbar surgery with "undue haste", without first arranging for a specialist neurological examination and without first proceeding to consider and pursue a diagnosis that explained the presenting symptoms. The primary judge rejected the suggestion that the respondent had "leapt" into surgery (see below), noting the time that had elapsed between the initial consultation and the surgery.
2. Although the appellant had pleaded that the respondent owed him a duty to ensure that the "operation and all medical services were performed with reasonable care" (see at [20] of the statement of claim), as noted above there was ultimately no criticism of the way that the lumbar surgery was performed by the respondent; rather, the complaint was that the lumbar surgery was unnecessary and that the respondent had breached his duty of care in failing to provide adequate pre-operative examination and investigation of the appellant. The appellant contended that in the period from 15 October 2013, when he first saw the respondent, until the last consultation on 12 August 2015, the respondent negligently treated his spinal symptoms, including by failing to investigate and diagnose his thoracic condition. This, the appellant alleged, meant that the appellant was subjected to unnecessary lumbar surgery and that there was a delay in finding the bony lesion in his thoracic spine, which resulted in avoidable neurological degeneration.
3. As noted above, the respondent denied negligence, claiming that his assessment and treatment of the appellant's presenting symptoms was in accordance with peer professional practice that was at the time widely accepted in Australia in accordance with s 5O of the Civil Liability Act.
4. The respondent contended that he had performed an appropriate and thorough examination of the appellant at his initial assessment and that his findings on his examinations, combined with the results of imaging investigations, were consistent with the appellant's complaints. It was said that the appellant made no complaints consistent with thoracic spine pathology or a T5/6 exostosis at any time; and that the subsequent diagnosis of a T5/6 exostosis was an unrelated finding that arose in a different clinical context and was not reasonably foreseeable to a neurosurgeon in the respondent's position at the time (see as noted by the primary judge at [277] of his Honour's reasons).

Evidence from expert neurosurgeons

1. Expert evidence was called from two neurosurgeons: Professor Gavin Davis, the expert called by the appellant; and Professor Mark Sheridan, the expert called by the respondent.
2. Professor Davis made very clear that he would have approached the appellant's management differently. In particular, Professor Davis said that, in the absence of nerve root compression, spinal thecal compression or instability, there was no indication for surgery; and that a mild disc bulge (as Professor Davis says appeared from the 23 October 2013 MRI scan) in someone who has pain is no indication for lumbar surgery (see at T 330.32-50). Professor Davis accepted that, in cases of "extreme subtlety", reading an MRI scan might be susceptible to different interpretations by different neurosurgeons but appeared to be adamant that if there is not "gross" nerve root compression then there is no indication for surgery (see at T 345.47-50).
3. Professor Sheridan, on the other hand, strongly disagreed with Professor Davis' statement that there was no nerve compression or irritation visible on the 2013 MRI image. Professor Sheridan considered that "there was enough nerve impingement, compression" to justify the surgery (accepting that there would be a range of views on this) (see T 345.33-36). Earlier, Professor Sheridan indicated that he considered that there was enough change to justify surgery, saying (at T 331.10-13) that: And I think a reasonable neurosurgeon at that time in a standard neurosurgical - predominantly spinal practice, would have offered this patient surgery, not giving guarantees of 100 per cent success.
4. In essence, Professor Sheridan's opinion was that the respondent acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. In oral evidence, Professor Sheridan said (at T 329.6-8), after having read the respondent's oral evidence, that: If I had been in that situation, having read Dr Pope's report of that consultation and his subsequent testimony, I would have followed the exact same path Dr Pope would have followed.
5. Each of the expert neurosurgeons produced a number of written reports - primary reports followed by sequential commentaries as described by the primary judge at [73] of his Honour's reasons - not all of which were read in the proceedings; and they also met in conclave and produced a joint report. Their oral evidence was given concurrently in a number of sessions (in part due to timing constraints but, at least in relation to the later session, in order to permit Professor Davis to view "dynamic images" of the relevant MRI scans to which Professor Sheridan had referred in his oral evidence; and then to permit reference to certain articles to which Professor Davis had referred in his supplementary report).

Evidence from expert radiologists

1. Evidence was also adduced from two expert radiologists: Dr James Bowden, called by the appellant (whose report the primary judge said it was unnecessary to review in detail as it dealt with uncontroversial historical descriptions and otherwise was heavily redacted which limited its evidentiary utility - see at [102] of the primary judgment); and Dr Jones, called by the respondent.
2. In his report dated 30 April 2020, Dr Jones said that: Mr Dean's initial MRI scan showed a right posterolateral L5-S1 annular tear with a small focal protrusion, but no significant neural encroachment. There was no thecal sac deformity to indicate it was being compressed. There was no encroachment into the intra-vertebral foramen. The L5-S1 disc was dehydrated indicating disc degeneration. The scan was otherwise normal.
3. The appellant says that this is clear corroboration from the respondent's expert that no mechanical nerve root compression was visible on the MRI (cf Professor Sheridan's opinion as noted above). Dr Jones also reported that: Disc protrusions cause leakage of annulus pulposis into the epidural space. The annulus pulposis is highly irritant and sets up inflammation. The inflammation produces radiculopathy if it affects a nerve exiting through the intravertebral foramen, or a descending nerve in the lateral recess of the spinal canal. … The inflammation may resolve over time spontaneously, it may resolve following targeted steroid injection, or may be persistent and product chronic radiculopathy.
4. It appears to have been conceded that the reference by Dr Jones to "annulus pulposis" should have been to "nucleus pulposis" (see discussion at T 375.28-50, T 376.1-20) (an error later repeated in the primary judge's reference to Dr Jones' evidence at [106] and elsewhere in his Honour's reasons).
5. The appellant argues that the relevance of this evidence to the proceeding is unclear, emphasising that the respondent gave no evidence that he considered there was leakage of disc or material irritating the nerve. As to the relevance of these comments, Professor Davis said that (see at T 375.39-46): The annulus is the outer fibrous layer of the disc. It doesn't contain any inflammatory mediators per se. It's the nucleus that resides inside the annulus that if it prolapsed out can cause acute inflammation temporarily. So I'm not quite sure if he's referring to the annulus or to the nucleus and in the context of this particular case, there was no evidence of any nucleus pulposis extrusion to the affected - the supposedly affected nerve root. So, I don't take that at its face value.

Other expert and medical evidence

1. Other expert and medical evidence was relied upon during the proceedings at first instance but it is not necessary here to summarise that evidence. It will be referred to insofar as it is relevant to the arguments raised on appeal in due course. Relevantly, the respondent notes that there was also evidence from Dr Peter Bentivoglio, a neurosurgeon who provided a medicolegal report to the solicitors formerly engaged by the appellant, addressing questions that the respondent says were plainly directed to establishing breach of duty by the respondent. It is said by the respondent that Dr Bentivoglio's report was entirely supportive of the respondent's diagnosis and management, and his unchallenged opinion was not critical of any aspect of the respondent's care of the appellant.

Primary judgment

1. The primary judge summarised at [7] his Honour's conclusions as to the outcome of the proceeding, namely that the appellant's claim did not succeed on liability and causation issues but that, had it succeeded, the damages would have been assessed at $611,850 (as to what this comprises, see below).
2. After making various factual findings (Issue 1), his Honour addressed the relevant risk of harm (Issue 2) and duty of care, scope and content (Issue 3). As to Issues 2 and 3, his Honour concluded: first, that the relevant risk of harm was that an inadequate pre-operative surgical assessment had the potential to lead to unnecessary surgery which, if performed, could result 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 (see at [269] of the primary judgment); and, second, that the doctor/patient relationship gave rise to a single comprehensive duty of care, the scope of which in this case was the duty to take reasonable care when reviewing and considering the history of the appellant's presenting problems; to conduct an adequate examination of the appellant; 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 appellant undergo surgery, including not to recommend surgery that was unnecessary in the presenting circumstances (see at [270] and [272] of the primary judgment).
3. His Honour also noted that the duty to take reasonable care was not absolute and, in particular, that the respondent 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 (see at [273] of the primary judgment).
4. No issue is here taken by the appellant with the above analysis.
5. Issue 4 (the defence claimed pursuant to s 5O of the Civil Liability Act) was then dealt with by the primary judge from [275] of his Honour's reasons. His Honour concluded (at [307]) that the respondent had discharged the onus of proof of establishing his defence that, in his management and treatment of the appellant's presenting problems, he had acted in a manner that was widely accepted in Australia by professional peers as competent professional practice and, thus, that the respondent had established a complete defence to the appellant's claim against him.

Amended notice of appeal

1. The appellant seeks an extension of time for the filing of the notice of appeal until 14 March 2022, when the initial notice of appeal was filed. There was no opposition to such an extension and it should be granted.
2. By amended notice of appeal filed on 20 April 2022, the appellant appeals from his Honour's decision on the following grounds: 1. His Honour's findings at [307] that the Defendant had established a Defence under section 5O(1) was vitiated by error on the question of whether lumbar spine surgery should have been undertaken as: a. the evidence as quoted by his Honour at [182], [294], [296] and [297] was not evidence relevant to the decision to proceed to surgery; b. the experts agreed that it was irrational to proceed with lumbar surgery in the absence of nerve compression found on radiology and the Defendant gave no evidence that he thought such compression was found; c. his Honour erred in finding that the evidence of Dr Davies was affected by hindsight bias; and d. it was inappropriate to apply section 5O to the circumstances of this case as the evidence did not establish a practice as to how the individual decision to offer surgery ought to have been made. 2. His Honour's finding at [333] that the Defendant had acted reasonably in proceeding to lumbar surgery was vitiated by error as: a. it was made on an assumption at [327], not available on the evidence, that Dr Pope would have considered nerve root irritation by a chemical process as the mechanism of the presenting symptoms; and b. the experts agreed that it was irrational to proceed with lumbar surgery in the absence of nerve compression found on radiology and the Defendant gave no evidence that he thought such compression was found. 3. His Honour erred in finding that it was reasonable for the Defendant to not pursue a thoracic cause for the Plaintiff s symptoms as: a. Dr Pope never entertained a thoracic cause but only had an eye for lumbar surgery from the initial consultation; and b. his Honour failed to deal with the evidence of Dr Davis that the presenting symptoms were consistent with a thoracic lesion, as he found incorrectly that the evidence of Dr Davis on this point was infused with impermissible hindsight considerations at [334]. 4. His Honour erred at [348] in failing to assess damages for the effects of the lumbar surgery. 5. His Honour erred in finding at [357] that the Plaintiff had failed to prove the damage was caused by the delay in diagnosis of the thoracic lesion. [This ground seems to have been abandoned at the hearing.] 6. His Honour erred at [377] in not awarding damages for non-economic loss under section 16 of the Civil Liability Act 2002 (NSW) for 38% of a most extreme case.

Notice of contention

1. By notice of contention filed on 28 March 2022, the respondent contends that his Honour's decision should be affirmed on the following ground but does not seek a discharge or variation of any part of the orders made by his Honour: 1. The primary judge should have found that, if the 'practice point' described in this Court's decision in McKenna v Hunter and New England Local Health District [2013] NSWCA 476 at [160] forms part of the law of New South Wales; then: (a) the respondent conducted himself in a manner that conformed with a practice that was in existence at the time he provided medical services to the appellant; and (b) that practice was widely accepted by peer professional opinion as competent professional practice.

Notice of cross appeal

1. By notice of cross appeal filed on 20 April 2022, the respondent contends that the primary judge erred in finding that, had the cross-respondent established a breach of duty by the cross-appellant, then damages for: past economic loss should be assessed in the amount $130,000; past loss of employer funded superannuation benefits should be assessed in the amount $12,350; and future loss of earning capacity, compensable by way of a buffer, should be assessed in the amount $250,000. There was some debate as to whether this was strictly in the nature of a cross-appeal but nothing ultimately turns on this.

Determination

1. I propose first to consider the challenge to the primary judge's findings on liability (grounds 2 and 3 of the amended grounds of appeal) before addressing the challenge to the findings raised in relation to the respondent's s 5O defence (ground 1 of the amended grounds of appeal and ground 1 of the notice of contention); and then to address the issues as to damages (grounds 4 and 6 of the amended grounds of appeal and ground 1 of the cross-appeal). The challenge to the finding as to lack of causation in respect of the delay in diagnosis of the thoracic lesion (ground 5); was not pressed (see AT 29.34-44).

Grounds 2 and 3 - finding that it was reasonable to proceed to lumbar surgery and not to pursue a thoracic cause for the appellant's symptoms

1. The appellant submits that expert evidence as to the respondent's decision to operate ought to have been confined to the reasoning process contained in the respondent's evidence (see above) including as to what was observed at the pre-operation consultations; and that it was not open for the primary judge to consider other justifications (i.e., such as chemically caused nerve irritation) which were not contained in the respondent's evidence nor in his defence. The appellant cites in this regard Old v Miniter [2021] NSWCA 92 at [88] per Basten JA. The appellant says that it was never positively asserted by the respondent that the MRI scan demonstrated nerve irritation; that the respondent's concessions in cross examination were to the contrary; and notes that there was a dispute between the experts about what the MRI showed.
2. The appellant argues that the report from the expert radiologist (Dr Jones) was clear corroboration that no mechanical nerve root compression was visible on the MRI scan and the appellant emphasises that the respondent gave no evidence that he considered there was leakage of disc or material irritating the nerve.
3. The appellant also says that if this was the justification for the surgery he should have been shown the annular tear and the "supposed" disc material outside the annulus by putting the image on the computer or on a lightboard in the room (see T 380.36-42); and complains that this was not done by the respondent. (This complaint is not a pleaded ground of negligence - there being no complaint as to any warnings given as to the risk of the operation or the explanation for the recommendation. Hence, I regard this as being, in effect, a submission that the fact that the respondent did not point out the appellant to an annular tear visible on the scan is something that reinforces the appellant's contention that this was not the reason at the time for the surgery.)
4. The appellant concedes that some people with a small disc protrusion may have a massive inflammatory reaction or there may be cases involving a large disc protrusion and no inflammatory reaction (see T 381.12-18) but says that, as this formed no part of the respondent's consideration, it is irrelevant. It is said that such a chemical reaction did not feature in the evidence of the respondent, nor did he find any evidence of such a reaction when he operated. The appellant points out that the respondent was not recalled to give evidence on this issue after it arose during the concurrent expert evidence; and that, instead, the court arranged for the expert neurosurgeons to view the MRI films again; and (as noted above) the experts disagreed as to what the films showed.

Determination

1. Ground 2 of the amended grounds of appeal (alleging error in the finding made at [333] of the primary judgment) is premised on two matters: first, that the primary judge made an assumption not available on the evidence that the respondent would have considered nerve root irritation by a chemical process as the mechanism of the presenting symptoms; and, second, that the experts agreed that it was irrational to proceed with lumbar surgery in the absence of nerve compression found on radiology and the respondent gave no evidence that he thought such compression was found.
2. As to the first, at [327], the primary judge said the following: 327. 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 [sic; nucleus] 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.
3. As noted above, it is apparent that the reference to "annulus pulposis" is in error (presumably either drawn from Dr Jones' incorrect description of the disc material or a typographical error with the word "annulus" intended to be "annular") but nothing turns on this. The primary judge elsewhere noted that the correct reference is to the nucleus pulposis.
4. The suggestion by the primary judge that pre-operatively there was imaging evidence of an annular tear at L4/5 appears to be incorrect; rather, the radiologist's report of 23 October 2013 referred to a degenerative disc protrusion at that level and the respondent's 12 November 2013 report referred to a disc herniation at L4/5 with a right paracentral disc extrusion (which would accord with the primary judge's reference to an associated disc bulge in that area). The first reference to an annular tear appears to be in the report of the operation report itself. That said, Dr Jones' subsequent 30 April 2020 report concluded that the initial MRI scan showed a right posterolateral L5/S1 annular tear with a small focal protrusion, which might perhaps explain the reference to pre-operative imaging of an annular tear (albeit that the disc level of that annular tear as noted by Dr Jones differs from the radiologist's report of the disc protrusion at a different disc level).

Submissions as to ground 3

1. As to the second alleged breach of the duty of care, the appellant emphasises that the MRI imaging did not rule out the thoracic lesion which was in fact causing the appellant's symptoms (as the MRI was confined to the lumbar spine and was not a whole spine MRI).
2. The appellant argues that it was not sufficient for the respondent to say that, in light of the way medical algorithms are applied within the clinical setting, investigation of the appellant's thoracic spine was not indicated. It is submitted that, in the absence of clear radiological support, a reasonable person in the position of the respondent would have taken the precaution to look for another cause before proceeding to lumbar surgery on the appellant; and that the available precautions against the risk of unnecessary surgery, as set out in the appellant's pleadings, were to conduct further scans in addition, or in the alternative, to referring the appellant to a neurologist (as opposed to a neurosurgeon, as the respondent is). Again, the appellant complains that the criticism (at [334] of the primary judgment) of Professor Davis' opinion as being "infused with hindsight bias" was in error.
3. Further, the appellant says that the finding at [336] of the primary judgment that the respondent had not been made aware of a symptom that necessitated investigations of a thoracic cause is incorrect. In this regard, the appellant points to Professor Davis' evidence of personal experience of thoracic lesions causing sciatic like symptoms (see T 434.10-17) and to the provision by him of articles to support such a connection. The appellant's contention is that (although referred to by Professor Davis as a rare occurrence) in circumstances where there was no clinical correlation with the MRI and the clinical presentation the respondent "should have gone looking for it" (see at T 434.16). (That, of course, somewhat begs the question given the dispute between the expert neurosurgeons as to what the MRI scans in fact showed.)
4. In response to ground 3, the respondent refers to the evidence summarised in his written submissions (at [15]) and to the evidence of Professor Davis as to this being a "rare occurrence". The respondent argues that the primary judge's finding should be accepted; it being premised upon, inter alia, the unchallenged findings that the appellant complained of no symptoms indicative of thoracic pathology and, as the appellant conceded in cross-examination, did not disclose to the respondent (or others) that he had sensory problems from his navel to his right nipple, despite the occasion for doing so having arisen.

Determination

1. As to ground 3, the difficulty with the appellant's contention that it was not reasonable for the respondent not to pursue a thoracic cause for his symptoms is that the history that he presented was not indicative of a thoracic cause for those symptoms and even Professor Davis, who maintained that such an investigation should have been carried out, accepted that it would be a rare occurrence that there be a thoracic cause for the symptoms that the appellant had disclosed at the time. Professor Sheridan's view, as already noted, was that the respondent's management of the appellant's presenting symptoms was exemplary and there was nothing to point to a thoracic cause at that stage.
2. As to the complaint that the primary judge had failed to deal with the evidence of Professor Davis, that seems to me to be unwarranted criticism. The primary judge not only dealt in some detail with the evidence of the expert neurosurgeons in the course of his Honour's reasons, but he also tested and engaged directly with the evidence of the experts during the course of the concurrent evidence sessions (as is clear from even a cursory review of the transcript of those sessions).
3. The complaint here made by the appellant is as to what was said at [334] by his Honour: 334. 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.
4. That criticism by the primary judge focused on the specific questions that Professor Davis had been asked to address, namely: 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 needs to be answered on a more than 51% chance. 2. Were the symptoms experienced by the Plaintiff in 2013 due to the thoracic lesion? That needs to be answered on a more than 51% chance. 3. On the balance of probability that is more than a 51% chance had our client had thoracic surgery in 2013 then he would have had a better outcome?
5. The first of those questions is unarguably seeking an opinion in hindsight. The subsequent questions in effect flow from that. However, the appellant says that, properly understood, the questions posed issues confined to causation and not to the s 5O issue; and that his Honour erred in rejecting the evidence on the basis that he did. Whether or not those questions were directed to causation issues, the primary judge was entitled to have regard to that evidence insofar as it was relevant to the s 5O defence.

Conclusion as to the negligence claim

1. In general as to the finding (made contingently by the primary judge against the possibility that he be wrong on the s 5O defence) that there was no negligence, there was no dispute between the parties as to what was required to be satisfied by the appellant in order to base a finding of negligence in relation to the decision to operate on the appellant's lumbar spine or the alleged failure to investigate a non-lumbar cause; and his Honour expressly referred to the pre-requisites to a finding of negligence as provided by s 5B(1) of the Civil Liability Act. In particular, there is no challenge to the identification by his Honour of the relevant duty of care; nor as to the relevant risk of harm as identified by his Honour (see above). The requirement of reasonable foreseeability of harm is undemanding and it is no barrier that the probability of injury is remote, provided it is not far-fetched or fanciful.
2. It cannot be disputed that, generally speaking, unnecessary surgery is a foreseeable and not insignificant risk posed by inadequate pre-operative surgical assessment. The critical issue in terms of breach is, however, whether a reasonable person in the position of the respondent would have taken precautions against that risk (being, in these circumstances, the declinature to operate on the lumbar spine at that time and the provision of a more extensive pre-operative assessment process).
3. The primary judge (at [327]) assumed that the respondent would have been aware (as a result of his training) of the possible leakage of nucleus pulposis from the appellant's annular tear which had the potential to cause chemical irritation of the nerve root in the absence of any manual or physical compression. Chemical irritation caused by the leakage of nucleus pulposis would, according to the expert evidence of Professor Sheridan, explain the appellant's symptomatology. On appeal, the respondent sought to demonstrate that, albeit absent an express articulation by the respondent in his evidence of his knowledge of the possible leakage, the respondent was indeed armed with that knowledge. Those issues have been discussed above.
4. However, even if one proceeds on the basis that such knowledge (based on assessed training) should not have been assumed, the evidence of Professor Sheridan to my mind (particularly when read with the acknowledgement of Professor Davis as to the thoracic cause of the reported symptoms being such a rare occurrence) is sufficient to establish that there was no reason for a reasonable person in the position of the respondent (armed with the then disclosed symptoms and an MRI scan showing a disc herniation and associated disc bulge which was interpreted by the respondent to mean that there was nerve root compression) to investigate (or, in Professor Davis' words, "go looking for") an alternative cause (i.e., a problem with the thoracic spine) or to decline to recommend lumbar surgery. Indeed, ultimately, it was the evidence of Professor Sheridan (which his Honour accepted) that a lumbar disc herniation was identified in 2013 which demonstrated an impingement which warranted surgery (see [347]) and that herniation was, in the respondent's opinion at the time, evidence of nerve root compression or impingement, a conclusion that Professor Sheridan endorsed.

Ground 1 and notice of contention - s 5O defence

1. Returning then to ground 1, in light of the conclusion above, this issue does not strictly need to be determined since, even if s 5O were not applicable to provide a complete defence, the appellant's claim would have failed for other reasons. Nevertheless, as the issue was argued before an enlarged bench it is appropriate to address this.
2. By ground 1 of the amended grounds of appeal, the appellant contends that: 1. His Honour's findings at [307] that the Defendant had established a Defence under section 5O(1) was vitiated by error on the question of whether lumbar spine surgery should have been undertaken as: a. the evidence as quoted by his Honour at [182], [294], [296] and [297] was not evidence relevant to the decision to proceed to surgery; b. the experts agreed that it was irrational to proceed with lumbar surgery in the absence of nerve compression found on radiology and the Defendant gave no evidence that he thought such compression was found; c. his Honour erred in finding that the evidence of Dr Davies was affected by hindsight bias; and d. it was inappropriate to apply section 5O to the circumstances of this case as the evidence did not establish a practice as to how the individual decision to offer surgery ought to have been made.
3. At the outset, the respondent contends that the challenge to the s 5O finding ought not be entertained because the appellant adduced no evidence contradicting and did not relevantly challenge expert opinion that (in deciding to perform lumbar surgery and in his management and treatment of the appellant's presenting problems) the respondent acted in a manner that was widely accepted in Australia by his professional peers as competent professional practice.
4. In that regard, the respondent says that the appellant's challenge to the s 5O finding is brought in circumstances where: the appellant adduced no evidence of a different prevailing standard and there was neurosurgical evidence which supported the manner in which the respondent acted (including the evidence of Professor Sheridan which is referred to above and who, the respondent emphasises, described the respondent's management of the appellant as exemplary, entirely appropriate and consistent with what would be accepted by his peers). The respondent refers in this context to the evidence not only from Professor Sheridan that he would have followed "the exact same path" that the respondent followed but also to the evidence from Dr Bentivoglio, and Dr Simon and the reports of Dr Steel to which I have referred above.

Ground 1(a)

1. As to ground 1(a), the relevant evidence to which reference is made is as follows. At [182] and [294] of the primary judgment, his Honour (on both occasions having referred in the same paragraph or shortly before to the respondent's acknowledgment that there would be many neurosurgeons who would not have contemplated operating on someone of the appellant's age with his presenting signs and symptoms - see at [180]) quoted the evidence of the respondent (at T.271.37-50 and T 272.1-25) that "the vast majority of neurosurgeons in Australasia would perform what we call a local discectomy and remove only a fairly small portion of the nucleus pulposis content". At [296], his Honour referred again to that evidence as the respondent's explanation of the context for different surgeons approaching matters differently, adding that there was no material criticism in cross-examination of the respondent's training or of his style of operating. Last, reference is made at [297] to Professor Sheridan's opinion that the respondent's plan of management and treatment of the appellant was exemplary; and was standard care in the appellant's presenting circumstances (referring to Professor Sheridan's report at 371-374 and his evidence at T 368.9-22).
2. The appellant contends that this was not evidence relevant to the decision to proceed to surgery; rather that it was evidence as to the practice of removing, during surgery, a small portion of the nucleus pulposis content once an annulotomy is done (see the explanation given by the respondent at T.272.8-18); i.e., that it was relevant to the conduct of the operation and not to the decision to operate. True it is that at [294], the primary judge appears to conflate the two stages (pre-operative and operative) in this regard, in that his Honour described the answer relating to the practice of removing a small portion of the nucleus pulposis content as being provided by the respondent in defence of his decision to operate (and similarly see at [296] of the primary judgment) but there is no such apparent conflation at [182] where it seems that the primary judge is speaking of the appropriate procedure that may be adopted in the context of an annular tear (see at [181]), i.e., in the course of the operation, as opposed to the decision to operate in the first place (which is the subject of [180] of his Honour's reasons). However, as discussed below, any such conflation does not cast doubt on the primary judge's acceptance of Professor Sheridan's opinion which directly addressed the respondent's decision to operate - namely that there was sufficient evidence of nerve root compression or impingement to justify the surgery; nor his evidence that, presented with the same overall picture of the appellant's symptoms and the MRI imaging, he would have adopted the same course as did the respondent.

Ground 1(b)

1. As to ground 1(b), the respondent says that this wrongly characterises his evidence by asserting that he gave no evidence that he thought there was nerve compression. The respondent says the following as to the appellant's contention in this regard.
2. First, that the ground runs contrary to a proposition expressly put to the respondent in cross-examination by the appellant's senior counsel to the effect that pre-operatively, after receiving the radiology investigations, the respondent "thought there may be some compression of the nerve root which is L5".
3. Second, that the respondent deposed that, pre-operatively, he thought the disc herniation was not causing great displacement of the nerve; but did not say (and it was not put to him) that he believed, pre-operatively, that there was no nerve compression.
4. Third, that there is other contemporaneous evidence that, pre-operatively, the respondent thought there was nerve compression. Reference is made to the respondent's report to the treating doctor (Dr Lam) of 12 November 2013 (the day of the respondent's second pre-operative examination of the appellant), where the respondent took issue with the radiologist's reported conclusion to the effect that the MRI showed "no compression of neural structures". In his oral evidence the respondent clarified that his expression "I beg to differ [with the radiologist]" had erroneously been transcribed as "beg to defer ..." in his report to Dr Lam. The respondent recorded that he offered the patient "rhizolysis", a procedure that he explained in his oral evidence (at T 234.1-7) is: essentially the part of the operation where the nerve root lateral or to the outer part of the thecal sac is decompressed fully as it exits further away from the thecal sac. You're making sure that it has free passage of any other structures that may be compressing it.
5. Fourth, the respondent says that the appellant's assertion cannot be reconciled with the respondent's unchallenged evidence that pre-operatively, he ordered diagnostic measures, including perineural blocks, CT-guided cortisone injections to confirm if there was nerve root impingement; and the respondent recorded contemporaneously that the appellant reported good relief for a few weeks from the cortisone injection.
6. The respondent also points to the fact that his conclusion that there was evidence of compression shown on the MRI was corroborated by that of Professor Sheridan.

Ground 1(c)

1. As to ground 1(c), I have referred already to the criticism made by the appellant as to the rejection of Professor Davis' evidence on the basis that it was impermissibly affected by hindsight bias. I have found above that the appellant has not satisfied its onus in demonstrating that the conclusion of the primary judge as to the unreliability of that evidence was in error.
2. The respondent emphasises that, of all the neurosurgeons and other medical practitioners who reviewed this case, only Professor Davis expressed any criticism of the respondent's management of the appellant (and points out that Professor Davis' medico-legal report of 9 September 2019 is silent on breach of duty).
3. The respondent says that there was a sound basis for the impugned finding of hindsight bias on Professor Davis' part and says that it was amply and exhaustively explained by the primary judge. It is submitted that the questions put to Professor Davis invited such an approach.
4. The respondent says bias may be inferred from: the fact he gave such evidence without having seen the pre-operative MRI; the expert evidence corroborative of the respondent's management, and indicating that the respondent's colleagues too would not have suspected a thoracic cause for the appellant's presentation in 2013; the fact that Dr Ng, an occupational physician, who saw the appellant on referral from the respondent in February 2015 referred the appellant for the MRI of the lumbar spine undertaken 3 March 2015 and referred to a lumbar radicular cause for the appellant's complaints and made no mention of the potential for a thoracic contribution; and the fact that Dr Steel had provided a second neurosurgical opinion in which he investigated potential lower back causes (including ordering an MRI of the appellant's right buttock to rule out sciatic nerve entrapment or piriformis syndrome) and recommended that the appellant continue non-operative treatment, Dr Steel did not pursue a thoracic cause, but Dr Simon undertook an investigation of the appellant's thoracic spine.
5. Reference is also made to the evidence of Professor Davis to the effect that the connection between thoracic pathology and the leg pain of which the appellant complained to the respondent was, in his own clinical experience "indeed a rare occurrence" and "not a very common phenomenon" (see at T 434.10-17).

Ground 1(d) and the notice of contention

1. The more substantive ground of appeal on this issue is that raised by ground 1(d) in reliance on the decision in McKenna. In that regard, the practice that the appellant identifies (which he says was not established by the evidence) was a practice as to how the individual decision to offer surgery ought to have been made.
2. The notice of contention addresses this so-called "practice point" as follows: 1. The primary judge should have found that, if the 'practice point' described in this Court's decision in McKenna v Hunter and New England Local Health District [2013] NSWCA 476 at [160] forms part of the law of New South Wales; then: (a) the respondent conducted himself in a manner that conformed with a practice that was in existence at the time he provided medical services to the appellant; and (b) that practice was widely accepted by peer professional opinion as competent professional practice.
3. Section 5O of the Civil Liability Act provides, relevantly, that: (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.
4. In McKenna, it was held that the existence of a "practice" at the time of the conduct must be identified in order to enliven the application of s 5O of the Civil Liability Act (see Macfarlan JA at [160], with whom Beazley P, as Her Excellency then was, agreed). McKenna was subsequently overturned by the High Court on a different point of law. McKenna was then applied by this Court in Sparks, although both Basten and Simpson JJA there doubted the correctness of the construction adopted in McKenna.
5. As noted above, by ground 1(d), the appellant submits that the primary judge erred in applying s 5O of the Civil Liability Act because the evidence did not establish a "practice" as to how the individual decision to offer surgery ought to have been made. At [11] of the appellant's written submissions, it is submitted that the decision to proceed to lumbar surgery did not relate to any point of medical practice (such as the use of a particular drug, surgical technique or item of surgical technique - noting, by way of example, the observations of Macfarlan JA at [214] in Sparks, to which I refer below). The appellant argues at [12] that s 5O is not enlivened if the decision of the respondent to proceed to lumbar surgery was not a "practice" as required by McKenna.

Determination

1. It is necessary here to explain briefly the context in which the two relevant decisions arose.

McKenna

1. In McKenna, it was alleged that a psychiatrist working at the Manning Base Hospital in Taree was negligent in discharging a patient from the Mental Health Unit in circumstances where that patient strangled and killed the friend who had driven him home from the hospital only hours after his discharge. The negligence claim was brought by the deceased's mother and sisters who alleged, among other things, that the hospital owed the deceased a duty of care; that the psychiatrist had been negligent in discharging the patient, and that the Hospital was not entitled to the protection of s 5O of the Civil Liability Act.
2. At first instance, the primary judge concluded that the Hospital owed a duty of care to the deceased but that the plaintiffs had not established negligence and had not in any event satisfied him that the deceased's death was causally related to the negligence they alleged. In light of the expert evidence given at the trial, the primary judge concluded that s 5O was applicable and constituted a further reason why the plaintiffs must fail.
3. On appeal, Macfarlan JA (with whom Beazley P, as Her Excellency then was, agreed; Garling J dissenting in the result albeit not needing to consider the s 5O defence) articulated the following test in respect of the application of s 5O of the Civil Liability Act: 160. To establish a defence under s 5O a medical practitioner needs to demonstrate, first, that what he or she did conformed with a practice that was in existence at the time the medical service was provided and, secondly, to establish that that practice was widely, although not necessarily universally, accepted by peer professional opinion as competent professional practice. [Emphasis as per original]
4. Macfarlan JA gave examples (at [161]) of cases where the possibility that what had there been done "accorded with a practice" had been considered: in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 (Bolam), to use electro-convulsive therapy to treat depression; in Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] 1 QB 493 (Sidaway), to give or not to give a warning of risks in respect of the type of spinal operation in question; in Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 (Rogers v Whitaker), to give or not to give a warning of risks in respect of the type of eye operation there conducted; and in Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335 (Dobler) (where it was held that the section constituted a defence and hence the onus was on the professional to prove that he or she acted in the manner described in the section), as to whether to refer a patient for an ECG and/or to a cardiologist on detection of a heart murmur.

Sparks

1. In Sparks, this Court considered an appeal by two medical practitioners (a surgeon and an anaesthetist) from a primary decision that each had breached a duty of care owed to the patient in relation to an operation that had been undertaken on the plaintiff's spine. At first instance the appellants had unsuccessfully raised a defence under s 5O of the Civil Liability Act. On appeal, the anaesthetist submitted that McKenna was wrong in holding that it was necessary to demonstrate the existence of a "practice" extant at the time of the conduct in question (see as recorded by Basten JA at [31]). Basten and Macfarlan JJA (Simpson JA dissenting in part) held in separate judgments that s 5O did not provide a defence to the appellant anaesthetist; the surgeon's appeal was allowed by the Court.
2. Basten JA, who considered the characterisation of s 5O as a defence to give rise to difficulty (see at [17]), accepted that McKenna may well sufficiently describe many circumstances in which the defence is invoked, but did not understand the decision to be a general proposition as to the constraints imposed by s 5O(1) (see at [34]). Relevantly, Basten JA said at [31]-[33]: 31. Although it is uncertain how this reasoning in McKenna will operate in particular cases, there is a risk in reformulating the statutory language. To speak of "a practice" adopted by a group of professional persons suggests a regular course of conduct adopted in particular circumstances. By contrast, the phrase "competent professional practice" is apt to cover the whole gamut of professional services provided by the practitioner, whether or not the particular circumstances have arisen sufficiently often to result in an established practice. For example, although opinions may differ as to the conclusion to be drawn, there is no grammatical or semantic difficulty in describing an argument run by counsel in a novel case as demonstrating competent or incompetent professional practice. The same judgment may be offered about the failure of counsel to call a defendant in a criminal trial, where no settled practice exists. Where an acquittal depends on establishing an affirmative defence and there is no other evidence to support the defence, it may be described as incompetent professional practice not to call the defendant who could have given such evidence. Where an opinion is given and challenged, it will be supported (or attacked) not by reference to some established practice, but by reference to how an assessment of the circumstances (which may be unique) would be undertaken by a knowledgeable and experienced practitioner. 32. There are other reasons for thinking that the reference to "competent professional practice" does not require evidence of "a practice". First, it is the "manner" in which the defendant acted which must be the focus of the opinion. Secondly, if it were necessary to establish a practice, one might expect subs (3) to refer to "opinions … concerning that practice", rather than "opinions … concerning a matter". 33. To take an example closer to the present case (but still hypothetical) an anaesthetist might allow an operation to proceed on the basis that two indicators remained within acceptable limits but a third indicator did not. An expert might express an opinion that such conduct was not competent practice, not because he or she had experienced the same circumstance in the past, or had read about it in a textbook, but because basic principles of human physiology led to that conclusion.

Submissions in the present case

1. In the present case, the appellant points to the distinction between giving advice (noting that if the surgeon gives negligent advice or fails to give a warning, then s 5P of the Civil Liability Act provides that a defence under s 5O would not apply in those circumstances) and forming a diagnosis; and says that this distinction is blurred when it comes to s 5O and that both require an individualised approach.
2. Paraphrasing the judgment of Macfarlan JA in Sparks at [214], the appellant maintains that the decision to proceed to lumbar surgery did not relate to any point of medical practice, such as the use of a particular drug, surgical technique or item of surgical technique. It is noted that the issues of negligence raised related to a variety of factual considerations such as: the particular history received from the patient; the particular clinical findings on examination; and the interpretation of the particular radiological investigations. The appellant submits that that it is insufficient to enliven s 5O in such a case even if peer professional opinion (widely held) might accept that the decision of the respondent to proceed to lumbar surgery was reasonable if this decision was not a "practice" (citing McKenna).
3. As to the contention that McKenna is not the law, the respondent says, first, that the reasoning by which the practice point was derived in McKenna is wrong, and unfaithful to the plain words of the section; and second, the reasoning, delivered in a decision of this Court that was subsequently overturned by the High Court, did not establish any binding precedent that the primary judge or this Court must follow.
4. The respondent relies on the following paragraphs of the judgments of Basten and Simpson JJA in Sparks in which their Honours examined this aspect of the McKenna reasoning: first, as to why the practice point is wrong, Basten JA at [31]-[34] and Simpson JA at [332]; and second, as to why McKenna is not binding and should not be followed, Basten JA at [35]-[40].
5. As to the contention that, if the practice point is good law, then it should have been found to have been satisfied on the evidence in the present case, the respondent relies not only on Professor Sheridan's opinion but also on the concurrent oral evidence in which Professor Davis and Professor Sheridan made numerous references to what "we" (i.e., neurosurgeons in the respondent's position) do or look for or advise patients and the like (referring by way of example at T 297.16-27, T 329.15-50, T 330.9-27).

Determination

1. The Ipp Report on the Review of the Law of Negligence, considered at [3.2] the issue as to "whether the court should be the ultimate arbiter of the standard of care or whether it should defer to some designated body of opinion within the medical profession", stating: 3.2 ... Until Rogers v Whitaker (1992) 175 CLR 479, it was thought by many that the law on this question in Australia was embodied in the so-called 'Bolam rule', although courts had expressed reservations about its application in Australia. The rule derives from a famous statement by McNair J in the English case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art … merely because there is a body of opinion that would take a contrary view.
2. The "Bolam" principle was stated in Sidaway as "a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different approach", Lord Scarman there stating at 881 that the standard of care is a matter of medical judgment.
3. The Ipp Report did not recommend reinstating the Bolam rule in its "original form". Rather, it recommended a modified version of that rule, namely that: A medical practitioner is not negligent if the treatment provided was in accordance with an opinion widely held by a significant number of respected practitioners in the field, unless the court considers that the opinion was irrational.
4. In Rogers v Whitaker, the High Court made clear that the standard of reasonable care was that demanded by law, to be decided by the Court, not the medical profession.
5. The report noted that a common objection to the "Bolam" rule was that it gave too much weight to opinions that might be extreme and held by only a very few experts "or by practitioners who (for instance) work in the same institution and so are unrepresentative of the views of the larger body of practitioners". It was said that the Bolam rule also gave added importance to the influence of so-called "rogue experts".
6. The Panel considered that a problem with the suggestion that deference should be paid to "the generally accepted practice" of the medical profession was that this formulation did not allow for cases in which there is a genuine difference of opinion about whether generally accepted practice represents best practice, and gave no scope for the properly regulated development of new techniques with a view to their future general adoption as best practice (see at [3.13]).

Grounds 4 and 6; and cross-appeal - assessment of damages

1. Due to the findings on liability, the primary judge found that the scope of the respondent's liability did not extend to the damage caused by the lumbar surgery.
2. By ground 4, the appellant contends that an allowance ought to have been made for the unnecessary symptoms caused by the thoracic pathology at least for the closed period when the diagnosis was missed. The appellant points out that both Professor Davis and Professor Sheridan said that such symptoms were caused by the thoracic cord compression). Thus, the appellant contends that if he succeeds in the appeal as to liability, it is said that he would be entitled to an allowance for the pain and suffering caused by the unnecessary back surgery in addition to the allowance made by the primary judge.
3. As to ground 6, the appellant asserts error in the primary judge's approach to the assessment of damages, including in declining to award damages for non-economic loss "for 38% of a most extreme case". (The respondent notes that at first instance the appellant submitted below that the appropriate allowance was 30%.)
4. The appellant, in oral submissions, did not press a claim for future economic loss for the lower back injury caused by unnecessary spinal surgery. However, it was contended that if the breach of duty case was made good in relation to the back injury there should have been an increase in the allowance for non-economic loss (to 38%); that being the starting figure from which the primary judge had made the reduction to 30% by reason of the back injury not being established.
5. By his notice of cross-appeal, the respondent challenges the primary judge's assessments of damages for past economic loss, superannuation and future loss of earning capacity; in effect on the basis that the evidence did not support those assessments. The respondent contends that the evidence did not permit the findings made by his Honour (referring to the analysis at [350], [345]-[346]; [347]; [349].
6. As to these matters, the relevant factual background is that the appellant arrived in Australia in May 2013 with a degree in Building Science specialising in surveying. The appellant worked in surveying soon after arrival in Australia (including as the "main surveyor" on the Village Quay project in Rhodes, Sydney, for Bilbergia and later at KPMG). For a period of time following the surgery, the appellant worked in his own business (his evidence being that this was to avoid having to climb heights, or work on uneven ground, and to better manage the workload with his physical limitations, and to avoid the need to work on hazardous construction sites) and accordingly the appellant opined that his income was reduced by 50% during that period. The appellant was still working as a surveyor at the time of trial, albeit in the hope that he would change his employment to something less demanding in the future.

Determination

1. The complaint as to the contingent assessment of damages by the primary judge does not arise in circumstances where there has been no error in the finding that there was no liability. Had it arisen, I would have concluded that the respondent's complaints as to the amount fixed by way of a "cushion" or buffer being too high had force; and that if the ongoing incapacity was not due to the lumbar surgery, any damages should be limited to pain and suffering in the period between the lumbar surgery and thoracic surgery (and this was not established). For the reasons put forward by the respondent, I would have allowed the cross appeal in this respect. As it is, however, I simply propose that the cross appeal be disposed of by an order for its dismissal.

Conclusion

1. The orders I therefore propose are as follows: 1. Time for filing the Notice of Appeal be extended until 14 March 2022. 2. Appeal dismissed. 3. Cross-appeal be dismissed. 4. The appellant/cross-respondent to pay the cross-appellant/respondent's costs of the appeal and cross-appeal.
2. MACFARLAN JA: I agree with the orders that Ward P proposes and, subject to the following observations, agree with her Honour's reasons.
3. In relation to her Honour's discussion of s 5O of the Civil Liability Act, I accept that by referring in McKenna at [160] to "a practice that was in existence" I stated the requirements for the application of s 5O too highly. What I intended to convey there (and subsequently in Sparks at, for example, [220]) was that, due to s 5O(1)'s use of the past tense ("was widely accepted"), the section refers to activity (or non-activity) of the defendant of a type that had previously occurred and had been, to use the words of s 5O, "widely accepted in Australia by peer professional opinion as competent professional practice". I accept that that previous activity (or non-activity) need not have occurred "sufficiently often to [have] result[ed] in an established practice" (see Sparks at [31] per Basten JA).
4. The fundamental point that I sought to make in McKenna and Sparks however remains, namely, that s 5O cannot be satisfied by a defendant simply calling an expert to say that in unique circumstances with which the defendant was confronted, the expert would have acted in a similar fashion to the defendant and that he or she considers that other practitioners, or at least a substantial number of them, would have acted similarly. Such a broad reading of s 5O(1) would result in the provision being enlivened by an expert's opinion on whether the defendant's manner of activity (or non-activity), hypothetically, would have been widely accepted, regardless of whether there was actually wide acceptance at the relevant time. If the legislature had intended this construction, it would have used the words "would have been" instead of "was". The better view is that the word "was" requires the acceptance to be pre-existing as opposed to merely hypothetical.
5. As in the cases to which I referred in McKenna at [161] and to which Ward P refers at [205] above, expert evidence of a different character could have been given in the present case. Given that the circumstances confronting the respondent were not unique but had features that were seemingly often confronted by neurosurgeons deciding whether to recommend surgery, an expert would have been able to indicate what advice was ordinarily given in such circumstances and whether that advice was consistent with the advice that the respondent gave. As the s 5O issue is not determinative of the appeal, I refrain from expressing a view as to whether any of the expert evidence in fact given should be understood to be of that character.

Section 5O

1. Section 5O 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. The application of s 5O is qualified by s 5P, which provides: 5P Division does not apply to duty to warn of risk This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service.
3. However, there was no suggestion that s 5P was engaged in this case. The trial judge held that Dr Pope had established a defence under s 5O. His Honour said: [2] "[307] Consequently, in those circumstances, I prefer and accept Professor Sheridan's opinion on those matters. Accordingly, I find that Dr Pope has discharged the onus of proof of establishing his defence that in his management and treatment of the plaintiff's presenting problems, he had acted in a manner that was widely accepted in Australia by professional peers as competent professional practice: s 5O(1) of the CL Act. It follows that Dr Pope has established a complete defence to the plaintiff's claim against him: s 5O(1) of the CL Act."
4. That conclusion is challenged by Ground 1 of the amended grounds of appeal, which is as follows: 1. His Honour's findings at [307] that the Defendant had established a Defence under section 5O(1) was vitiated by error on the question of whether lumbar spine surgery should have been undertaken as: a. the evidence as quoted by his Honour at [182], [294], [296] and [297] was not evidence relevant to the decision to proceed to surgery; b. the experts agreed that it was irrational to proceed with lumbar surgery in the absence of nerve compression found on radiology and the Defendant gave no evidence that he thought such compression was found; c. his Honour erred in finding that the evidence of Dr Davies was affected by hindsight bias; and d. it was inappropriate to apply section 5O to the circumstances of this case as the evidence did not establish a practice as to how the individual decision to offer surgery ought to have been made.

The evidence of professional practice

1. As is apparent from the passage from his Honour's judgment extracted above, [3] the trial judge relied chiefly on the evidence of Professor Sheridan for the conclusion that in his management and treatment of the appellant's presenting problems, Dr Pope had acted in a manner that was widely accepted in Australia by professional peers as competent professional practice.
2. In his first report, of 27 May 2019, in response to a question whether he considered Dr Pope's management of the appellant at the time would be accepted by peers in Australia as competent professional practice, stated: [4] "It is my view that Dr Pope's management of the [appellant] was entirely appropriate and consistent with what would be accepted by his peers. His initial assessment, his documentation, imaging requested, the surgery itself and then Dr Pope's ongoing care were all exemplary. I find no aspects of Dr Pope's care worthy of criticism."
3. He adhered to this view in a later report. [5]
4. Having read Dr Pope's testimony, he said: [6] "If I had been in that situation, having read Dr Pope's report of that consultation and his subsequent testimony, I would have followed the exact same path Dr Pope would have followed."
5. He was of opinion that there was a sufficient indication for surgery, [7] and said: [8] "And I think a reasonable neurosurgeon at that time in a standard neurosurgical - predominantly spinal practice, would have offered this patient surgery, not giving guarantees of 100 per cent success."
6. He explained: [9] "There's always a range of views on this, as there is in almost all - there's particularly functional neurosurgery, pain neurosurgery is, again, a subjective business."
7. That was consistent with a statement attributed to Dr Pope by the appellant, that "you could see five - get five other opinions and maybe only two would operate". [10] While Dr Pope did not accept that he used those words, he agreed that some neurosurgeons would not have chosen to operate, on the basis that: [11] "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 of this particular condition may not be warranted. It may not offer the patient benefit."

Grounds 1(a), (b), (c)

1. Although, as Ground 1(a) asserts, some of the evidence given by Dr Pope referred to by his Honour on this question in fact related to another question, (namely the practice of performing a local discectomy and removing a small portion of the nucleus pulposis content after performing an annulotomy), [16] that does not undermine his Honour's acceptance of Professor Sheridan's opinion. His Honour said: "[297] Professor Sheridan considered that Dr Pope's plan of management and treatment of the plaintiff, which he described to be exemplary, was considered to be standard care in the plaintiff's presenting circumstances: Exhibit "B", Vol 2, pp 371 - 374. He reiterated that view in his oral evidence: T368.9 - T368.22. [298] Professor Sheridan's statement to that effect was not the subject of direct contradiction, nor was its effect diluted in any material way by other evidence, whether written or oral."
2. As to Ground 1(b), while it is correct that the expert neurosurgeons agreed that lumbar surgery was not indicated in the absence of nerve root compression, there was evidence that Dr Pope thought such compression was present. The MRI performed on 23 October 2013 was reported by Dr Sebastian Fung, radiologist, as showing "a transitional lumbosacral junction with likely sacralisation of L5-S1; at L4-5, loss of disc height and signal, and "broad based mild disc protrusion", with the following "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 canal are clear."
3. Dr Pope did not agree with the radiologist that there was no nerve root compression; he reported to the referring general practitioner on 12 November 2013 that a steroid injection had given the appellant some good relief for a few weeks but that the symptoms had recurred, and (emphasis added): [17] "The MRI did show a vestigial disc at L5/S1 and the disc herniation was described L4/5 with a right paracentral disc extrusion but no compression of neural structures. I beg to [differ] that there may be some compression of the nerve root which is L5 based on the report but clinically if it indeed is the L5/S1 level then it could be the S1 nerve root which is consistent with S1."

Ground 1(d) - the "practice" point

1. The complaint in Ground 1(d) - to the effect that a defence under s 5O was not available in the absence of proof of a particular existing practice which Dr Pope claimed to be applicable in the circumstances - is founded on what was said by Macfarlan JA in McKenna v Hunter and New England Local Health District. [19] His Honour, with whom Beazley P, as her Excellency then was, agreed, held that in order to enliven the application of s 5O, a "practice" existing at the time of the conduct must be identified: [20] "[160] To establish a defence under s 5O a medical practitioner needs to demonstrate, first, that what he or she did conformed with a practice that was in existence at the time the medical service was provided and, secondly, to establish that that practice was widely, although not necessarily universally, accepted by peer professional opinion as competent professional practice. [Emphasis as per original] [161] One can see in the facts of the cases that I have mentioned the possibility that what was done accorded with a practice. For example, there may well have been a practice in some part of the profession, in Bolam to use electro-convulsive therapy to treat depression; in Sidaway to give or not to give a warning of risks in respect of the type of spinal operation in question; in Rogers v Whitaker to give or not to give a warning of risks in respect of the type of eye operation conducted on the plaintiff and in Dobler to refer or not refer a patient for an ECG and/or to a cardiologist on detection of a heart murmur." … [165] In summary, the section is directed to something, namely a practice, that was in existence at the relevant time, here July 2004. Whilst at that time there were no doubt many practices in the medical profession concerning the manner in which operations were performed, the types of treatments that were administered, the circumstances in which tests were ordered, the circumstances in which warnings were given and other matters, the evidence here did not identify any such practice that was relevant in the present case. In light of the wide variety of circumstances bearing upon the decision to discharge Mr Pettigrove, it would have been surprising if it had done so. It is unlikely, to say the least, that there would have occurred in or before 2004 a number of situations in which there were sufficient features in common with the present case to enable it to be said that there was a practice concerning how such a situation was to be dealt with by a competent medical practitioner."

The Ipp Report

1. Section 5O was inserted as a result of a recommendation of the Review of the Law of Negligence (the Ipp Report). [27] In response to a term of reference which required the review to "develop and evaluate options for a requirement that the standard of care in professional negligence matters (including medical negligence) accords with the generally accepted practice of the relevant profession at the time of the negligent act or omission", [28] the Review Panel ("the Panel") identified as the principal controversy "whether the court should be the ultimate arbiter of the standard of care or whether it should defer to some designated body of opinion within the medical profession", explaining: [29] "Until Rogers v Whitaker (1992) 175 CLR 479, it was thought by many that the law on this question in Australia was embodied in the so-called 'Bolam rule', although courts had expressed reservations about its application in Australia. The rule derives from a famous statement by McNair J in the English case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art … merely because there is a body of opinion that would take a contrary view."
2. The Panel noted that there was a significant body of opinion, especially among the medical profession, which favoured reinstating the Bolam rule in its original form, but formed the view that it should recommend its reintroduction only in a modified form. [30] After explaining the then current position that courts were never required to defer to expert opinion and that it was always for the court to decide what the test of reasonable care requires in a particular case, the Panel contrasted this with the Bolam rule: [31] "By contrast, the traditional Bolam rule requires courts to defer to responsible medical opinion, so that if the defendant acted in accordance with a responsible body of expert opinion, the court cannot decide that the defendant acted without reasonable care."
3. The Panel observed that it was a common objection to the "Bolam" rule that it afforded too much weight to opinions that might be extreme and held by only a very few practitioners, "or by practitioners who (for instance) work in the same institution and so are unrepresentative of the views of the larger body of practitioners"; and also that the Bolam rule gave added importance to the influence of so-called "rogue experts". [32] The Panel concluded that such cases indicated that strict application of the Bolam rule could produce unacceptable results, the main weakness of the rule being that it allowed small pockets of expert opinion to be arbiters of the applicable standard of care, even where a substantial majority would take a different view. [33] The modified form of the rule recommended by the Panel, defining the relevant body of opinion as one "widely held by a significant number of respected practitioners in the relevant field", was intended to filter out idiosyncratic opinions, and to ensure that the opinion was one which deserved to be treated as soundly based: [34] "If it were thought right to require courts to defer to expert medical opinion relating to the standard of care applicable to medical treatment, the Panel's view is that the rule for determining the standard of care in all cases in which a medical practitioner is alleged to have been negligent in providing treatment to a patient should be as follows: 'A medical practitioner is not negligent if the court is satisfied that the treatment provided was in accordance with an opinion widely held by a significant number of respected practitioners in the relevant field'."

The Bolam test

1. The original Bolam test was explained by the High Court in Rogers v Whitaker [39] in the terms which had been used in Lord Scarman's dissenting judgment in Sidaway v Board of Governors of Bethlem Royal Hospital: [40] "The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment."
2. Unlike s 5O, so stated the test refers to a doctor having acted "in accordance with a practice accepted at the time as proper …". As has been noted, [41] Macfarlan JA in McKenna provided illustrations of cases in which the possibility that what had there been done "accorded with a practice" had been considered, identifying extant practices. [42] However, while it will often be the case that there is an existing practice (or several practices), I do not understand that the Bolam test, notwithstanding that it explicitly refers to acting "in accordance with a practice", required proof of a particular pre-existing professional practice; rather, it involved showing that the defendant had acted in a manner which was accepted as proper at the time by a responsible body of medical opinion - or, in substance, that a responsible body of medical practitioners in the same circumstances would have acted in the same manner. This is well illustrated by Maynard v West Midlands Regional Health Authority, [43] in which two consultants employed by the defendant health authority, who were treating the plaintiff for a chest complaint, thought she was suffering from tuberculosis, but also considered it possible that she might be suffering from Hodgkin's disease. So, before obtaining the result of a test which would have determined whether she was suffering from tuberculosis, they decided to perform an exploratory operation to determine whether she was suffering from Hodgkin's disease. The operation showed her in fact to be suffering from tuberculosis and not Hodgkin's disease. However, as a result of the operation she suffered damage to a nerve affecting her vocal cords which caused her speech to be impaired, this being an inherent risk of the procedure. The plaintiff claimed that the consultants had been negligent in deciding to carry out the operation before obtaining the result of the tuberculosis test. At the trial, expert medical evidence was called on both sides as to whether the operation should have been performed. The judge preferred the plaintiff's expert evidence and gave judgment to the plaintiff. The Court of Appeal reversed, holding that there had been no negligence. The plaintiff's further appeal to the House of Lords failed. Lord Scarman said: [44] "The present case may be classified as one of clinical judgment. Two distinguished consultants, a physician and a surgeon experienced in the treatment of chest diseases, formed a judgment as to what was, in their opinion, in the best interests of their patient. They recognised that tuberculosis was the most likely diagnosis. But in their opinion, there was an unusual factor, viz swollen glands in the mediastinum unaccompanied by any evidence of lesion in the lungs. Hodgkin's disease, carcinoma, and sarcoidosis were, therefore, possibilities. The danger they thought was Hodgkin's disease; though unlikely, it was, if present, a killer (as treatment was understood in 1970) unless remedial steps were taken in its early stage. They therefore decided on mediastinoscopy, an operative procedure which would provide them with a biopsy from the swollen gland which could be subjected to immediate microscopic examination. It is said that the evidence of tuberculosis was so strong that it was unreasonable and wrong to defer diagnosis and to put their patient to the risks of the operation. The case against them is not mistake or carelessness in performing the operation, which it is admitted was properly carried out, but an error of judgment in requiring the operation to be undertaken. A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that theirs was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken it was reasonable in the sense that a responsible body of medical opinion would have accepted it as proper. I do not think that the words of the Lord President (Clyde) in Hunter v Hanley 1955 SLT 213 at 217 can be bettered: 'In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men … The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care …' "

The s 5O test

1. In any event, whatever was the position under Bolam, in my opinion that is now clearly the case under s 5O. The question posed by s 5O is whether "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". This requires identifying the manner in which the professional acted, and asking whether it was at the time widely accepted as competent professional practice. The "manner" refers to what the doctor did. The statute does not refer to "accepted practice". The absence of the indefinite article before competent professional practice tells against the reference being to a particular identifiable subsisting practice. So does the reference to "manner". In my opinion, professional practice in this context refers to the manner in which professionals practise their profession, not to a particular protocol, procedure or process. "Competent professional practice" refers to what a significant body of competent professionals would have done. The past tense "was" is used, not to refer to a subsisting practice, but to highlight that the judgment is to be made as at the time of the relevant conduct, not with the benefit of hindsight in the light of more recent medical advances. If what the doctor did (that is, the manner in which he or she acted) accorded with what by the standards of the time a significant body of peer professionals would in the same circumstances have done, the requirement of the section is satisfied and the doctor was not negligent.
2. This view of the provision has been adopted in Victoria, in respect of s 59 of the Wrongs Act 1958 (Vic), which is relevantly in the same terms as s 5O(1). In Grinham v Tabro Meats Pty Ltd; Victorian WorkCover Authority v Murray, [46] the defendant general practitioner pleaded the s 59 defence. Forrest J said: [47] "I do not think it is necessary for Dr Murray to establish, as counsel for Tabro suggested, that her fellow practitioners have, in their practices, acted in the same way as Dr Murray in a similar situation. For instance, in this case not recalling a patient who has been sent off for re-testing after returning a low positive and subsequently failing to return to the clinic. Peer professional opinion is directed to acceptance or otherwise of the manner in which a professional acted in the circumstances confronting the defendant. It is to this issue that the opinions of the other professionals in the field are directed. It may be that in some cases an opinion is based upon a hypothetical analysis rather than one actually encountered in practice. Whilst this factor may go to the quality of the opinion expressed, what matters is the opinion of the other professionals as to the way in which the defendant carried out or failed to carry out the professional tasks impugned in the proceeding."

Conclusion

1. Ground 1 therefore fails. As the consequence is that Dr Pope's defence under s 5O is sustained, the appellant's claim was rightly dismissed. It is unnecessary to consider the other grounds of appeal.
2. I agree with the orders proposed by Ward P.

Endnotes

1. [2018] NSWCA 29.
2. Primary judgment at [307].
3. Primary judgment at [307]; see above at [277].
4. Professor Sheridan, Report of 27 May 2019.
5. Professor Sheridan, Report of 27 April 2020.
6. Tcpt, 16 July 2020, p 329(06)-(08).
7. Tcpt, 16 July 2020, p 345(33)-(36).
8. Tcpt, 16 July 2020, p 331(10)-(13).
9. Tcpt, 16 July 2020, p 344(19)-(21).
10. Tcpt, 22 June 2020, p 41(48)-(49).
11. Tcpt, 25 June 2020, p 270(14)-(20).
12. Dr Ng, Report of 6 March 2015.
13. Professor Davis, Report of 9 September 2019.
14. Tcpt, 16 July 2020, p 330(32)-(50).
15. Tcpt, 16 July 2020, p 345(47)-(50).
16. Primary judgment at [294]-[296].
17. In the original "defer" was used rather than "differ"; Dr Pope's evidence that this was an error of transcription (see Tcpt, 24 June 2020, p 219(19)-(27) is consistent with the context.
18. Tcpt, 16 July 2020, pp 344(06)-(21), 345(30)-(41).
19. [2013] NSWCA 476 ("McKenna"); reversed on other grounds in Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44.
20. McKenna at [160].
21. Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 at [34]-[35].
22. Sparks v Hobson; Gray v Hobson [2018] NSWCA 29; (2018) 361 ALR 115 ("Sparks").
23. Sparks at [31]-[33].
24. Sparks at [211].
25. Sparks at [218], [220].
26. Sparks at [332]-[333].
27. D A Ipp (Chairman), Review of the Law of Negligence Report (Ipp Report), 2 October 2002. The Ipp Report addresses this issue at [3.1]-[3.31] and in Recommendation 3.
28. Ipp Report, Term of reference 3(d).
29. Ipp Report at [3.2].
30. Ipp Report, at [3.5]. The rule, further explained below, takes its name from the direction given by McNair J to the jury in the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; [1957] 1 WLR 582.
31. Ipp Report at [3.6].
32. Ipp Report at [3.8].

Amendments 15 December 2022 - Minor typographical amendments 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: 15 December 2022