[1987] HCA 19
Belknap v Meakes (1989) 64 DLR (4th) 452
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118
[1957] 1 WLR 582
Boxell v Peninsula Health [2019] VSC 830
Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336
[1981] HCA 4
Dobler v Halverson (2007) 70 NSWLR 151
Source
Original judgment source is linked above.
Catchwords
[1993] HCA 15
Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1[1987] HCA 19
Belknap v Meakes (1989) 64 DLR (4th) 452
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118[1957] 1 WLR 582
Boxell v Peninsula Health [2019] VSC 830
Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336[1981] HCA 4
Dobler v Halverson (2007) 70 NSWLR 151[2003] HCA 22
Frangie v South Western Sydney Local Health District trading as Liverpool Hospital (2019) 29 DCLR(NSW) 346[2019] NSWDC 42
Garcia v National Australia Bank Ltd (1998) 194 CLR 395[1998] HCA 48
Gett v Tabet (2009) 254 ALR 504[2009] NSWCA 76
Gover v South Australia (1985) 39 SASR 543
Grinham v Tabro Meats Pty Ltd[1991] HCA 12
Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635
McKenna v Hunter & New England Local Health DistrictSimon 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[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
[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
Judgment (47 paragraphs)
[1]
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)
[2]
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
[3]
[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.]
[4]
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.
[5]
The Court (Ward P, Macfarlan, Meagher, White and Brereton JJA) held, dismissing the appeal:
[6]
As to issue (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.
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.
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.
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).
[7]
As to issue (2):
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).
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).
[8]
As to issue (3):
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).
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.
[9]
JUDGMENT
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.
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).
[10]
Factual background
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.
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).
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).
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).
[11]
Proceedings
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.
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.
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.
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).
[12]
Evidence from expert neurosurgeons
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.
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).
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.
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.
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).
[13]
Evidence from expert radiologists
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.
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.
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.
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).
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.
[14]
Other expert and medical evidence
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.
[15]
Primary judgment
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).
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).
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).
No issue is here taken by the appellant with the above analysis.
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.
[16]
Amended notice of appeal
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.
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.
[17]
Notice of contention
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.
[18]
Notice of cross appeal
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.
[19]
Determination
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).
[20]
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
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.
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.
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.)
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.
[21]
Determination
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.
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.
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.
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).
[22]
Submissions as to ground 3
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).
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.
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.)
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.
[23]
Determination
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.
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).
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.
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?
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.
[24]
Conclusion as to the negligence claim
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.
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).
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.
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.
[25]
Ground 1 and notice of contention - s 5O defence
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.
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.
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.
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.
[26]
Ground 1(a)
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).
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.
[27]
Ground 1(b)
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.
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".
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.
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.
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.
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.
[28]
Ground 1(c)
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.
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).
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.
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.
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).
[29]
Ground 1(d) and the notice of contention
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.
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.
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.
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.
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.
[30]
Determination
It is necessary here to explain briefly the context in which the two relevant decisions arose.
[31]
McKenna
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.
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.
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]
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.
[32]
Sparks
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.
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.
[33]
Submissions in the present case
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.
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).
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.
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].
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).
[34]
Determination
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.
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.
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.
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.
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".
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]).
[35]
Grounds 4 and 6; and cross-appeal - assessment of damages
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.
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.
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%.)
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.
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].
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.
[36]
Determination
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.
[37]
Conclusion
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.
MACFARLAN JA: I agree with the orders that Ward P proposes and, subject to the following observations, agree with her Honour's reasons.
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).
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.
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.
[38]
Section 5O
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.
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.
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."
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.
[39]
The evidence of professional practice
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.
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."
He adhered to this view in a later report. [5]
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."
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."
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."
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."
[40]
Grounds 1(a), (b), (c)
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."
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."
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."
[41]
Ground 1(d) - the "practice" point
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."
[42]
The Ipp Report
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."
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."
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'."
[43]
The Bolam test
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."
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 …' "
[44]
The s 5O test
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.
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."
[45]
Conclusion
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.
I agree with the orders proposed by Ward P.
[46]
Endnotes
[2018] NSWCA 29.
Primary judgment at [307].
Primary judgment at [307]; see above at [277].
Professor Sheridan, Report of 27 May 2019.
Professor Sheridan, Report of 27 April 2020.
Tcpt, 16 July 2020, p 329(06)-(08).
Tcpt, 16 July 2020, p 345(33)-(36).
Tcpt, 16 July 2020, p 331(10)-(13).
Tcpt, 16 July 2020, p 344(19)-(21).
Tcpt, 22 June 2020, p 41(48)-(49).
Tcpt, 25 June 2020, p 270(14)-(20).
Dr Ng, Report of 6 March 2015.
Professor Davis, Report of 9 September 2019.
Tcpt, 16 July 2020, p 330(32)-(50).
Tcpt, 16 July 2020, p 345(47)-(50).
Primary judgment at [294]-[296].
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.
Tcpt, 16 July 2020, pp 344(06)-(21), 345(30)-(41).
[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.
McKenna at [160].
Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 at [34]-[35].
Sparks v Hobson; Gray v Hobson [2018] NSWCA 29; (2018) 361 ALR 115 ("Sparks").
Sparks at [31]-[33].
Sparks at [211].
Sparks at [218], [220].
Sparks at [332]-[333].
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.
Ipp Report, Term of reference 3(d).
Ipp Report at [3.2].
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.
Ipp Report at [3.6].
Ipp Report at [3.8].
[47]
Amendments
15 December 2022 - Minor typographical amendments
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Decision last updated: 15 December 2022
The appellant was 25 years old when the lumbar surgery was performed. The appellant claimed that he sustained significant injuries as a result of the surgery, including localised back pain, genito-urinary problems and a psychological (somatoform) disorder, which the appellant contended had had a significant impact on his career and livelihood (as a surveyor).
The respondent contended that the decision to recommend lumbar spine surgery was reasonable, on the basis that there was a correlation between the appellant's presenting symptoms, the radiological findings and his clinical observations. The respondent also relied upon a defence under s 5O of the Civil Liability Act 2002 (NSW) (Civil Liability Act) to the effect that he had acted as a professional "in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice".
The appeal was listed for a hearing before a bench of five on the basis that the respondent had advised that he intended to challenge the correctness of the decision of this Court in McKenna v Hunter and New England Local Health District [2013] NSWCA 476 (McKenna) and, insofar as it may be taken to have followed McKenna, the decision of this Court in Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 (Sparks). Ultimately, however, neither of the parties suggested that the issue as to the precedential authority and correctness of McKenna was necessary to decide in order to dispose of the appeal (the appellant submitting that in truth there was no real difference in the approach of Basten JA in Sparks from that of the Court in McKenna - see at AT 1.25; and the respondent arguing, among other things, that it was not open to the appellant to challenge the primary judge's s 5O finding in circumstances where the appellant did not at trial adduce any evidence of a different prevailing standard to that which was explained by the appellant and the appellant's expert, Professor Sheridan - see at AT 38.10 - but in any event contending that if s 5O was not engaged then there was evidence that what was done by the respondent was in accordance with what competent peers would regard as proper and there was thus no negligence - see the discussion at AT 39).
In practical terms, the appellant says that this appeal comes down to a simple question, namely whether the primary judge was entitled to infer that the respondent considered matters to justify his decision to proceed to surgery where no direct evidence was given about these matters. The respondent cavils with the premise of this submission, as explained in due course.
Following the initial consultation, a nerve block was administered and an MRl scan was carried out (the respondent indicating that the main reason for the steroid injection was a diagnostic one but that there was also a therapeutic reason) (see T 212.28-44).
On 23 October 2013, Dr Sebastian Fung, a radiologist, reported to the respondent as to his findings on the MRI carried out of the appellant's lumbosacral spine. Under the heading "[c]linical history" appear the words "L5-S1 disc herniation on CT. ? right S1 compression". 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, under the heading "[c]omment", concluded:
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. [Emphasis added]
Much weight is placed by the appellant on the radiologist's finding that there was no nerve root impingement. (Dr Fung was not called to give evidence at the hearing.) In cross-examination, the respondent accepted that the radiologist had reported that the MRI showed no compression of the nerve root to explain the sensory changes the appellant was experiencing in the right leg (see T 257.12-16, T 269.6-9). However, it is clear from the respondent's report to the referring doctor by letter dated 12 November 2013 that the respondent had a different opinion on the issue of nerve root compression to that of the radiologist. That report noted that the injection had given the appellant some good relief for a few weeks but that the symptoms had recurred, and went on to state that:
The MRI did show a vestigial disc at L5/S1 and the disc herniation was described L4/5 with a right paracentral disc extrusion but no compression of neural structures. I beg to defer [sic; "differ" - see T 219.19-27] 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. [Emphasis added]
Pausing here, the respondent relies on this contemporaneous report as rendering unsustainable the proposition said to be embodied in ground 1(b) of the amended grounds of appeal (see below) that there was no evidence that the respondent believed that compression was found.
It is also relevant here to note that there appeared to be some conflation in the evidence as to "impingement" and "compression", there being at least one occasion when the terms appeared to be used synonymously (see, for example, the evidence of Professor Sheridan at T 345.33-36s). As I understand it, impingement in effect means contact with the nerve root (which might be from a mechanical cause such as a disc herniation or disc protrusion, or from a chemical cause, such as leakage of nucleus pulposis material contained in the disc as a result of an annular tear - which I explain in due course) and compression means a degree of distortion of the nerve root caused by such impingement.
At the second consultation with the appellant, on 12 November 2013, the respondent recommended to the appellant that he should have surgery to his lumbar spine for an L4/5 decompression, microdiscectomy and nerve root rhizolysis. (Rhizolysis was described by the respondent as essentially the part of the operation where the nerve root lateral or to the outer part of the thecal sac was decompressed fully as it exits away from the thecal sac and that the surgeon was making sure it had free passage of any other structures that may be compressing it - as opposed to rhizotomy, which is the cutting of the nerve root - see at T 234.1-12.) The reference to surgery for decompression indicates that the respondent's belief (consistent with his "beg to [differ]" comment) was that the MRI scan did show some compression.
The respondent's 12 November 2013 report to the referring doctor stated that the respondent felt this (i.e., lumbar surgery) was a reasonable option given that the appellant's history and signs were consistent with a radicular component. The respondent's evidence in chief was that, as the appellant had obtained some relief from the injection, it suggested that the problem was coming from the lumbar spine and from the nerve root (see T 219.1-17); that the MRI result "somewhat confirmed" the working diagnosis (that he had formed on 15 October 2013) (see T 220.44-58); and that he proceeded to recommend surgery assuming a pain generator at L4/5 (accepting the radiologist report in this respect). The respondent explained that his impression at the initial consultation was an L5 radiculopathy and that the clinical, radiologic, levels had been verified as L4/5; so that this reinforced his preferred diagnosis (see T 220.39-42).
In cross-examination, the respondent accepted that no conclusive evidence was derived from the perineural injection as to the precise level of a pain generator (see T 269.11-15); and that the appellant was making slow progress in early 2014 before the surgery (see T 269.17-23).
The respondent's evidence in chief included that "[t]he fact that the disc herniation was small and not excessively large and causing great displacement of the nerve" was the main reason that he gave the surgery a lower chance of success (see at T 222.43-50, T 223.1-3). Consistently with this, the appellant gave evidence (see at T 41.45-49) that the respondent told him after the MRI that:
It's by no means a big herniation. Usually when you see a herniation it jumps off the pages, you can definitely tell that, but you had to look for my one. It was pretty insignificant. …
The appellant also said that the respondent told him that "you could see five - get five other opinions and maybe only two would operate". The respondent did not accept that this was an accurate account of the conversation, but it was accepted by the respondent that there would be some neurosurgeons that would not choose to operate (consistent with what the appellant says the respondent had told him - see above), the respondent explaining his understanding of the basis of such a decision to be that (at T 270.14-20):
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.
The appellant's evidence was that his only concern at that stage was as to the sensory issues in relation to his right leg (see T 42.8-25) and that he was put on a waiting list but that he "really did not want to just jump into surgery" (see at T 43.34-38). Indeed, the appellant's evidence was that he refused the surgery twice as he did not think it was necessary but eventually agreed when the respondent's receptionist told him that a third refusal would result in him taken off the waiting list (see T 46.15-19).
On 16 June 2014, the respondent carried out the lumbar surgery on the appellant at Concord Hospital. As adverted to above, it does not appear that there was any criticism of the respondent's surgical technique (see T 272.20-25).
The operation report noted that:
Radiological findings
L4/5 radiologic level. VeStigial disc L5/S. Disc bulge right L 4/5 level
Pathological process found in surgery
Adherent L5 root to PLL and annular tear/bulge
The appellant points out that the respondent accepted in cross-examination that there was no mention in this report of any inflammation of the nerve roots observed in the operation (see at T 273.28-30). The respondent's evidence was that if there were visible signs of discoloration or inflammation or swelling of the nerve then that would correlate with a diagnosis of nerve root pathology; but the respondent said that there was "adhesion" (explained by the experts in their evidence, which is considered in due course below) (see at T 273.45-50). The respondent agreed in cross-examination with the proposition that there was "no sign that this root was inflamed, or otherwise the L5 root was inflamed, or otherwise compromised" (see at T 275.11-13).
During his evidence in chief, the respondent was questioned by the primary judge as to there being no note in the operation report as to the existence of a disc protrusion. The respondent's response was that there was definitely a disc protrusion (otherwise known as a disc herniation or bulge) in addition to an annular tear but the respondent accepted that he had not noted it in his report (see at T 234.20-24). (The annulus is the outer lining of the disc, the inner parts of the disc containing the nucleus pulposis - see at T 271.42-47, material described as being like "crabmeat" or plasticine - see at T 380.9-34. An annular tear is a defect in the wall of the disc of the ring, which contains the nucleus pulposis - see at T 273.11-22.)
At 95 of the primary judgment, the primary judge noted that both expert neurosurgeons agreed at the first concurrent evidence session that, while it was not a universal view, it was a commonly held view that (when operating in the context of a detected annular tear) it was reasonable to incise the annulus and remove disc fragments within the disc space (see T 305.9-28); and, as noted above, there was no issue as to the competence of the annulotomy carried out by the respondent.
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. The appellant saw the respondent at a further nine consultations, during which the respondent recommended to the appellant that he continue with physiotherapy treatment and observe lifting and carrying restrictions in his work as a surveyor.
In March 2015, the appellant sought a further neurosurgical opinion from another neurosurgeon, Dr Timothy Steel. The respondent points out that Dr Steel also did not suspect a thoracic cause for the appellant's complaints. Dr Steel was not called in the appellant's case, but his several reports to the treating doctor (Dr Lam) relating to his own investigations of a lumbar cause were in evidence. The respondent says that none of Dr Steel's notes impugns the respondent's management of the appellant.
The appellant was also referred in August 2015 to a neurologist, Dr Neil Simon. (The respondent points out that Dr Simon provided a report that expressed no criticism of the respondent, despite the appellant's solicitor's letter of instruction to him expressly asking him to critique the respondent's management.) It is also noted that, although the appellant tendered that report, he did not seek leave to adduce oral evidence from Dr Simon.
In August 2015, MRI and CT scans of the appellant's thoracic spine revealed a large benign bone lesion or tumour that compressed his spinal cord at the level T5/6. The appellant says that this tumour was the cause of the appellant's original presenting symptoms for which he had been referred to the respondent (though there was some dispute between the expert neurosurgeons as to whether the symptoms of leg pain were symptomatic of thoracic spinal cord compression - see at T 336.16-50, T 337ff). 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.
The primary judge identified the substantive legal issues for determination (at [29] of the primary judgment) as follows:
(1) Findings on relevant factual matters concerning first, the identification of the nature and the extent of the plaintiff's pre-operative presenting problems as they evolved over time, and the related chronological events that then followed.
(2) Identification of the relevant risk of harm within the meaning of s 5B of the CL Act.
(3) Identification of the scope and content of the duty of care owed by Dr Pope.
(4) The determination of whether, within the meaning of s 5O of the CL Act, Dr Pope has discharged the burden of proving the claim of a sheltering defence to the effect that his management and treatment of the plaintiff was in accordance with peer professional practice that was at the time widely accepted in Australia. That question is dependent upon which elements of conflicting expert evidence should be preferred to guide the determination of the related question as to what should be accepted as peer professional practice in the presenting circumstances.
(5) The determination of whether, according to the analysis required by s 5B and s 5C of the CL Act, Dr Pope should be found to have relevantly breached the duty of care that he owed to the plaintiff.
(6) The determination of whether, in terms of s 5D of the CL Act, any established breach of the duty of care owed by Dr Pope should be found to have relevantly caused the harm claimed by the plaintiff.
(7) The assessment of the plaintiff's damages in respect of non-economic loss; past economic loss; future loss of earning capacity; post and future superannuation losses; future domestic assistance; future treatment expenses; and past out-of-pocket expenses.
His Honour identified the central factual dispute in the proceeding as being whether the appellant's lower limb symptoms were adequately considered and investigated before the respondent proceeded to recommend and arrange surgery on the appellant's lumbar spine (see at [23] of the primary judgment). The appellant does not cavil with this description of the central factual matter in dispute (and, as noted above, identified the relevant negligence as including an inadequate investigation of the appellant's presenting symptoms). The respondent, however, says that the evidence at the hearing as to whether there was adequate investigation of other causes was limited to a "tepid" answer from the appellant's expert (Professor Davis) that "potentially" the appellant should have been referred to some other specialist before surgery (see AT 29.5-32).
His Honour noted (at [28] of the primary judgment) that the analysis and resolution of the areas of disagreement within the expert evidence depended upon a prospective interpretation and characterisation of the appellant's pre-operative presenting symptoms as they evolved, and how they were presented to the respondent, in conjunction with a consideration of the contemporaneously recorded medical histories that were provided by the appellant.
The primary judge summarised the respective reports (from [74]ff) of his Honour's reasons.
Relevantly, the reports that ultimately were in evidence (chronologically ordered) were: the first report dated 27 May 2019 of Professor Sheridan; the first report dated 9 September 2019 of Professor Davis, which responded to a series of questions framed by the appellant's legal representatives (and which the primary judge considered suggested an inappropriate hindsight analysis - see at [75]; the relevant questions being set out in the report); the second (supplementary) report, dated 27 April 2020, of Professor Sheridan, commenting on Professor Davis' first report; the third report, dated 29 May 2020, of Professor Sheridan, addressing a question as to differences that had been found on physical examination of the appellant; a joint report dated 9 June 2020 of the two experts, addressing eleven agreed questions; the fourth report, dated 3 August 2020, of Professor Sheridan (produced after Professor Sheridan's oral evidence on 16 July 2020 as to the MRI images taken on 23 October 2013 of the appellant's lumbar spine); and a supplementary report by Professor Davis, dated 6 August 2020.
The concurrent evidence sessions occurred on 16 July 2020; 23 July 2020; 17 September 2020 and 3 December 2020 (see as summarised at [95]ff of the primary judgment). Professor Sheridan's fourth report, and Professor Davis' supplementary report thus followed the first two concurrent evidence sessions.
The primary judge summarised at [94] of his Honour's reasons the areas of agreement between the experts as outlined in their joint report; and then went on to set out matters of relevance emerging from the concurrent evidence sessions at [95]ff.
As to the first concurrent evidence session, his Honour noted, among other things, the difference of opinion as between Professor Davis and Professor Sheridan as to whether the presenting picture justified the course taken by the respondent (Professor Davis' position being that he did not see a correlation between the radiology and clinical findings in the case and would have looked for an alternative explanation to a lumbar explanation before operating) (see at 95) and as to the level of certainty required in respect of clinical indications for surgery (see at 95); that the experts agreed that the appellant's ultimate back pains could have been contributed to by the back surgery (see at 95); and that the effect of the respondent's comment on 12 August 2015 (that the appellant's complaint of sensory loss over the whole of the right leg made no sense) applied only if one was considering a lumbar cause and that the comment made perfect sense if considering a cause emanating from a higher level of the spine (which his Honour said supported the inference that the respondent had dismissed the possibility of a higher cause at that time, as stated in his evidence) (see at 95).
His Honour also noted that Professor Sheridan was satisfied that the appellant's presentation at the first consultation pointed almost entirely to the presence of a lumbar pathology and he would have taken the same diagnostic pathway as the respondent (see at 95); and that Professor Sheridan was convinced that the presentation strongly fitted with assumed lumbar pathology rather than a thoracic cord compression (see at 95), whereas, Professor Davis had argued that a slower pathway towards surgery should have been taken in the case of pain in the presence of a radiologically assessed small disc bulge absent MRI evidence of nerve root compression or spinal thecal compression (see at 95) and in this instance his practice would have been to discuss the MRI interpretation with the radiologist and look for another cause for the appellant's symptoms because there was insufficient correlation for surgery (see at 95).
His Honour noted that much of the second concurrent session related to the interpretation of pain symptoms, referring to an academic paper that his Honour considered of limited relevance on the question of the reasonableness of the respondent's decision to operate on the appellant (see at 98). What was explored at the second concurrent evidence session included the distinction between nerve root irritation caused by a chemical process (such as leakage or extrusion of disc material or the nucleus pulposis - wrongly referred to in some of the evidence as the annulus pulposis) and nerve root compression due to a mechanical process, both of which were recognised as potential contributors to pain (see at 98 of the primary judgment). Relevantly, his Honour noted that a question had arisen as to the interpretation of dynamic images comprising the lumbar MRI scans, which question was flagged for further attention from the experts, and which resulted in Professor Sheridan's fourth report dated 3 August 2020 (see at 98).
His Honour noted that Professor Sheridan's comment that if there was a history of lower back pain, leg symptoms and decreased range of movement in the lower back then the overall picture would indicate a lower back problem and would make one quite comfortable that the "pathology is in the right place" and that in such a clinical setting one need not look further for other causes (see at 98); and that, after reading the respondent's evidence in the proceeding, Professor Sheridan remained of the opinion that the respondent's treatment of the appellant was exemplary (see at 98). His Honour noted that Professor Davis agreed that pain could be a confounding factor that could be a variable in an assessment, even in the presence of focal neurology such as muscle weakness (see at 98). At 98, the primary judge noted that Professor Davis also stated that it was the responsibility of the surgeon to look at the MRI images and form his own conclusions; and that the decision to operate rested with the surgeon irrespective of the views of respected radiologists.
The primary judge noted that the third concurrent evidence session was convened to enable a discussion on the MRI images and that Professor Sheridan had produced the 3 August 2020 report which referenced still MRI images taken on 23 October 2013 with the aim of depicting sites of chemical irritation or signs of contact between protrusion of disc material and nerve tissue (see at 99); and that there was a disagreement between the experts on the interpretation of the scan (referred to as image 1, or the first image) as showing a compression (see at 99). His Honour also there noted an area of disagreement between the experts on the interpretation of a 2005 journal article as to the connection between back pain and leg pain but considered that nothing turned on that article (or the expert's disagreement) on a prospective analysis of the respondent's clinical decision making (see at 99).
The fourth concurrent evidence session was convened (following adjournment of the third session to enable the appellant's counsel to read the journal materials which were referred to by the experts (see the primary judgment at 99). The primary judge noted that there was evidence from Professor Davis as to the literature that in his view demonstrated that thoracic cord compression could cause sciatica (referring to articles referring to patients with paraesthesia (pins and needles) and pain in the lower limbs typical of sciatica), whereas Professor Sheridan considered that the articles specifically described leg pain as distinct from paraesthesia (see the primary judgment at [100]).
In summary, a review of the transcript of the various concurrent sessions reveals the following.
Both expert neurosurgeons agreed (see at T 345.3-13) that if the conclusion was that there was no nerve root compression then there was no rational basis upon which to offer the surgery (an answer that counsel for the respondent later tried unsuccessfully to clarify - there being an objection maintained by counsel for the appellant in that regard - see at T 345.1-7, T 366.39-50, T 367.1-32). However, what is clear is that at least Professor Sheridan appears to have considered that chemical irritation caused by leakage of nucleus pulposis material would also justify surgery - though that might be difficult to diagnose from an MRI scan (see below). In any event, in that context, it is relevant to note that there was dispute between the experts as to what the MRI scans actually showed.
Professor Sheridan made clear his view (as noted above) that (at T 345.33-36):
I think there was enough nerve impingement, compression; there is a whole range of words to describe the thing; to justify the surgery. That's my view. And as Professor Davis said, there is going to be a range of views on this
albeit saying that no one would say that it was a "classic huge disc" (at T 345.40-41).
There was some debate in oral submissions as to whether Professor Sheridan was treating "impingement" and "compression" as synonymous terms or, as the appellant suggests, was there saying that there was enough nerve impingement to cause compression but in any event Professor Sheridan was clearly of the view that that was shown on the MRI scan justified lumbar surgery.
Professor Davis, on the other hand, said that when making a decision for surgical excision of a disc one is looking for gross nerve root compression and that if there is not gross nerve root compression there was no indication for surgery and that (at T 346.15-19):
… the radiological findings being subtle just did not correlate with quite extensive symptoms and signs, that is why I would normally take a step back and reconsider; you may want to go and discuss the MRI with a radiologist to look for an alternative cause, but it just doesn't correlate.
Professor Davis considered the account given by the respondent (at T 233.21-32) as to the posterior longitudinal ligament (PLL) being adherent in this case to the dura of the thecal sac (so that an annulotomy had to be performed) and seemed to accept that if what was detected was an annular tear then it would be reasonable to incise the annulus and remove disc fragments but Professor Davis said that this was not a universal approach (though within the realm of a reasonable approach) (see generally at T 305.1-28). Professor Davis considered if the annular tear was in the midline adherent to the theca then this might affect the PLL but should not affect the nerve root (see T 304.13-25).
Both experts agreed that, with an annular tear, one would expect to see back pain. Professor Davis did not think there was correlation between the clinical findings and the radiology and said he would have looked for an alternate cause before operating (see at T 306.24-26), stating also (at T 332.19-20) that "most neurosurgeons would agree that if there is no evidence of clear nerve root compression, one should not operate".
Following debate in the course of concurrent evidence on 23 July 2020 as to the MRI images, it was arranged for there to be a "dynamic view" of the MRI images by the expert neurosurgeons (see at T 381-383). This led to the supplementary report of Professor Sheridan and to Professor Davis providing his further report (after an opportunity for him to view the MRI scans - those not having previously been provided to him by the appellant's solicitors, as opposed to pictures of the scans). Up to that point, Professor Davis had only reviewed copies of the scans not the actual pre-operative MRI images on disc. Professor Davis said that he was provided with one or two images that were printed out but not the whole disc (see at T 374.27-37). The respondent here says that it is still not clear whether Professor Davis ever reviewed the actual scans (see submissions).
After that process, the experts were again in disagreement as to what was to be observed on the scans. Professor Davis (in his letter of 6 August 2020) considered that a closer analysis of the MRI slides (provided this time to Dr Davis by way of PowerPoint slides on which Professor Sheridan had made notations - thus not a dynamic viewing of the MRI slides as the primary judge had envisioned) provided no evidence of neural chemical irritation and hence that such chemical irritation was not demonstrated in the relevant scan. Professor Davis went through the three slides identified by Professor Sheridan in his report dated 3 August 2020 and confirmed that in his opinion there was no evidence of nerve root impingement. Professor Sheridan (see T 405.8-17) disagreed. His evidence was that the degree of chemical irritation was not really demonstrated well on an MRI scan and that (at T 405.14-17):
[i]n some instances, you certainly can see a swollen nerve root, which would suggest an irritated, inflamed - whatever terminology you would like to use - nerve root; but the absence of that swelling does not exclude an irritation nerve root.
The appellant maintains that Professor Davis' opinion was consistent with the opinion of Dr Michael Jones in his report dated 30 April 2020 that "[t]here is no displacement or compression of the descending right S1 nerve root. No abnormality is visual within the right L5-S1 interverbal foramen" and consistent with Dr Fung's earlier report dated 23 October 2013.
In the course of the concurrent evidence, when questioned by the primary judge as to possible impingement, Professor Sheridan said (at T 405.30-38) that he was looking for impingement of the disc actually touching the nerve; that this was a small disc protrusion; and that it was a subtle irritation. However, Professor Sheridan confirmed that, on the balance of the "whole picture" (i.e., imaging, patient's history, examination, response to treatment) if he were presented with this case, he would offer the patient an operation.
Professor Sheridan said that there was no degree of swelling that he could see in the nerve root (looking at the second and third annotated images of the still MRI scans) but that "what you want is the absence of the CSF signal, the white around the nerve root". Professor Sheridan said that he could not see white above the nerve; and that there was no CSF between the disc and the nerve anterior or at the top of the picture on the third image so that in his opinion this was consistent with the patient's symptoms and he estimated that this showed about a millimetre or two of compression (see T 406.45-50, T 406.1-13). That evidence, read in context, seems to be focussed on the question of impingement not chemical irritation and as noted above it is relevant that Professor Sheridan indicated that he considered that there was compression.
When Professor Davis was questioned on 17 September 2020 about the October 2013 MRI of the lumbar spine, he confirmed that the only form in which he had seen it (and seemingly this was even after the adjournment that appears to have been for the express purpose of permitting a dynamic view of the scans) was in the still images taken from it and referred to by Professor Sheridan (see at T 412.1-20) and he recalled that similar images were provided within the file with which he was originally provided but said that "[y]ou don't need to see the entire MRI series, but you can still be provided with a representative image as Professor Sheridan's provided here". (The appellant here argues that if Professor Davis considered that he needed to see the original scans it would be expected that he would have said so.)
Professor Sheridan also gave evidence on 17 September 2020 that he could not find a single case in the articles or papers to which he had been referred of spinal cord compression causing leg pain, which he said was entirely consistent with his clinical experience. Professor Sheridan said that the reference to radicular pain in the articles to which Professor Davis had referred was radicular pain at the level of the tumour - so that if the tumour was in the thoracic spine then it would cause nerve root compression at that level causing pain around the chest or around the abdomen (see at T 414.5-18).
There was a further adjournment for Professor Davis and the appellant's counsel to review the relevant articles (notwithstanding that these were articles that he himself had cited) and he was then questioned as to whether any of those articles made a connection between thoracic pathology and leg pain, in response to which he referred to the vagueness of the term "sciatica". Professor Davis considered that there was sufficient evidence in the papers he had quoted to say that there could be leg symptoms in the setting of thoracic cord tumours without necessarily having signs of spinal cord compression (see at T 428.3-50, T 429.1-40).
Professor Sheridan maintained his opinion that none of the articles showed any evidence of leg pain; rather, he said that the articles described very clear cut localised pain at the site of the lesion and neurological symptoms (not pain) in the lower limbs (see at T 429.44-48, T 430.9-23), to which Professor Davis' response was that in his experience thoracic cord tumours can and have produced sciatic-like symptoms (see at T 430.27-37).
Professor Davis, asked if it was a rare occurrence for people with thoracic lesions to experience sciatica like symptoms (which would include pain) apart from sensory symptoms, said that it was indeed a rare occurrence and that usually the patients he had seen had undergone lumbar surgery in a similar pattern to the present case and later the thoracic tumour was identified.
Professor Davis' opinion was that if the original lumbar MRI does not correlate with the clinical presentation then "you go looking for it, because it's not a very common phenomenon" (i.e., the thoracic tumour being the relevant cause of the symptoms) but added that "it is rare, but it - it is well established and well appreciated in the neurology circle". Professor Davis confirmed his opinion that the appearance radiologically within the lumbar spine would not have justified surgery in the present case (see at T 434.23-24).
Professor Sheridan read this part of Dr Jones' report as commenting on the ability of the nucleus pulposis to cause a chemical irritation of the nerve rather than nerve root compression (see at T 376.7-20) and said that it was a well-accepted concept that nerve irritation from the irritant nature of the nucleus could certainly contribute to a patient's nerve pain; and that it could also be concordant with the respondent's finding intraoperatively that there was tethering or scarring (i.e., adhesion).
Professor Sheridan accepted that the description of disc herniation (in the respondent's report of 12 November 2013 where the MRI was referred to as describing disc herniation with a right paracentral disc extrusion) was the equivalent of leakage of the nucleus pulposis, Professor Sheridan saying that it was the same thing and that it was a matter of degree - that it is a process starting with a fracture or tear in the annulus of the disc and then the nucleus pulposis leaks out through the tear; and that it could be very minor (just a white spot on the MRI) or right up to some very large disc herniation and anything in between ("[s]o just exactly what's been described") (see at T 379.26).
Professor Davis accepted that a disc extrusion correlated with the concept of nucleus pulposis prolapse or leakage but said that a disc bulge did not "by necessity implicate nucleus pulposis lying adjacent to the feca [sic; presumably a transcription error for theca]" because it depended on the posterior longitudinal ligament (PLL) and that there could be a tear in an annulus and a disc bulge without a competent posterior longitudinal ligament, in which case there would be no connection between the different structures. Professor Davis said that one needed to "have a look at the films to be a little bit more certain in [one's] description" (see T 379.30-39). Professor Davis said that a classic disc prolapse through a torn annulus into the spinal canal may or may not produce an inflammatory reaction around a disc; and that some people might have an asymptomatic disc prolapse but on the other hand a small disc prolapse might produce a massive inflammatory reaction "and everything in between" (see at T 381.12-18).
Professor Sheridan confirmed that, with the potential for nucleus pulposis to irritate a nerve root chemically, mere physical contact (as opposed to compression per se) would be a sufficient basis to cause chemical irritation (see at T 381.1-7).
Noting (at [279] of the primary judgment) the appellant's contention that, for s 5O to be applicable, it was necessary to satisfy two criteria: first, to identify the specific "practice" that was in existence at the time the impugned service was provided (relying on McKenna per Macfarlan JA at [160]); and, second, to establish that that practice was widely accepted by the profession in question, his Honour (at [280]) considered that the question whether the existence of a defined established practice had been established was an incomplete enquiry because the focus of the section required the discernment of competent professional practice.
His Honour said that s 5O must allow for a range of circumstances that could be either competent or incompetent practices (see at [280]) (citing Sparks per Basten JA at [31]), with some scope for variations in practice, because the practice of medicine is both an art and a science (see at [282]). The primary judge said that findings on those matters were dependent on the underlying factual circumstances and the conclusions to be drawn from relevant aspects of the expert medical evidence on standards of practice (see at [281]) and that evidence as to what constitutes competent practice could arise in a variety of circumstances, including in the form of a recognised or published protocol or in a description given in oral evidence (see at [282]).
The primary judge considered that the approach taken by Professor Davis was plainly affected by the hindsight considerations embedded in the questions asked of him (see at [306]) (a criticism that the appellant says could not properly be made of Professor Davis' subsequent report and which, in any event, the appellant here challenges by ground 3(b)); and his Honour said that in those circumstances he preferred and accepted Professor Sheridan's opinion (to the effect that the respondent's clinical and surgical management of the appellant was exemplary and in line with standard practice) and hence the respondent had established a complete defence against the claim under s 5O of the Civil Liability Act (see at [307]). This conclusion is the subject of challenge by the appellant (ground 1 of the amended grounds of appeal).
His Honour then turned to consider the remaining liability, causation and damages issues in the event that he were to be wrong in his conclusion as to the s 5O defence.
Issue 5 concerned the alleged breach of the duty of care. The primary judge noted that the case was fought (in a departure from the pleaded case) on the basis of a criticism of the pre-operative medical services (see at [313]), referring to the allegations of negligence particularised at [25] of the statement of claim; and said that two determinative focal points of argument were relied upon by the appellant as constituting the alleged breaches of the duty of care: first, the reasonableness of the decision to carry out surgery to the appellant's lumbar spine; and, second, whether the thoracic lesion ought to have been diagnosed at an earlier time (see at [317]).
As to whether it was reasonable to carry out the lumbar surgery (a course taken after some initial hesitancy on the appellant's part), the primary judge noted at the outset that a significant factor for consideration was the non-disclosure by the appellant of all of his neurological symptoms, and that the undisclosed symptoms - abnormal sensory symptoms on his right side and up to the level of his navel - had been shown to have been of considerable diagnostic significance; and, if disclosed, would have required consideration of whether the symptoms were due to a problem in the thoracic spine (see at [322]-[324]).
The primary judge accepted (at [326]) the respondent's evidence that in his clinical evaluation he had dismissed the prospect of the appellant having a problem that had its origins higher up in his thoracic spine (in the absence of disclosure of that material symptom - that was only revealed to the neurologist, Dr Simon, in August 2015 in a different investigatory context).
The primary judge said (at [327]) that, pre-operatively, the respondent was in the position that: he had imaging evidence of an annular tear at L4/5 and an associated disc bulge in that area; a history of symptoms that were concordant with pathology at that level, and there was evidence of denervation; and said that, although the extent of the disc bulge was not great, the respondent's training obviously made him aware of the potential mechanism for leakage of annulus pulposis material possibly to cause nerve root irritation by a chemical process of contact with extruded disc material thereby placing mechanical pressure onto a nerve or nerve root. His Honour considered that the respondent reasonably dismissed the possibility of a thoracic cause in the absence of symptoms that might have inculpated such a cause.
The appellant challenges the last two of those findings. Moreover, the appellant says that, even if accepted at face value, these findings are not sufficient: first, that it is speculation that the respondent's training made him aware of the potential mechanism for leakage to cause nerve root irritation, saying that there was no evidence of this; and, second, that his Honour had moved onto a "chemical irritation theory of the case" rather than mechanical pressure on the nerve basis, which it is said is inconsistent with his Honour having appreciated during the course of the hearing that there had to be a finding as to whether there was nerve root compression for there to be a rational basis on which to offer the surgery (referring to the discussion on 16 July 2020 in the course of the concurrent expert evidence) (see at T 345.3-7).
The primary judge rejected the appellant's suggestion that the respondent had "leapt" into the surgical option with undue haste (see at [33] of the primary judgment), having regard to the pursuit of conservative options for some nine months prior to the surgery.
At [331], his Honour said that, in the presence of the reported sensory losses to the right lower leg as described by the appellant, and a suspected denervating cause for those symptoms, the respondent was required to balance the potentially damaging risks associated with not operating against the potential risks associated with an operation; and said that those matters were properly canvassed with the appellant.
Accordingly, the primary judge found that the appellant did not satisfy the pre-requisites required by s 5B(1) of the Civil Liability Act to base a finding of negligence in respect of the decision to operate on the appellant's lumbar spine. In particular, his Honour found that although there were not insignificant foreseeable risks of operating, the reasons given by the respondent for operating (supported by the expert opinion of Professor Sheridan) indicated that the respondent had acted reasonably in proceeding to the lumbar surgery (which he carried out with due skill and care) (see at [332]-[333] of the primary judgment).
As to the question whether there should have been an earlier diagnosis of the thoracic lesion, based upon Professor Davis' opinion, the primary judge found that opinion to be unreliable "as it was infused with impermissible hindsight considerations" (see at [334]). His Honour considered that an earlier diagnosis could only have arisen if two essential conditions had prevailed: first, that the respondent had been made aware of the relevant symptom that had necessitated investigation of the thoracic spine some two years later (see at [336]-[337] of the primary judgment); and, second, the advent of an emergent clinical discordance between the appellant's symptoms and imaging results when considered in terms of whether it was reasonable to infer a lumbar cause for the appellant's sensory symptoms to the extent that he had disclosed them (see at [33]). As to the latter, at [339] his Honour said that there was a concordance, not discordance as explained by Professor Sheridan and that:
[i]n those circumstances, Dr Pope's pursuit of a concordant lumbar diagnosis and the consequential recommendation for lumbar surgery was not only reasonable, but it accorded with widely held peer professional opinion amongst peers practising in Australia. More than that, Professor Sheridan described Dr Pope's clinical management as exemplary.
Accordingly, the primary judge found that the appellant did not satisfy the pre-requisites required by s 5B(1) of the Civil Liability Act to base a finding of negligence in respect of the alleged failure to investigate the possibility of a thoracic lesion being responsible for the appellant's symptoms (see at [340]). His Honour said (at [341]) in that regard that, in light of the absence of a report by the appellant of relevant symptoms that might suggest a thoracic cause, although the respondent foresaw the possibility thereof, the respondent reasonably dismissed it as insignificant; and therefore the investigatory precautions for which the appellant contended in relation to a thoracic cause did not relevantly arise on account of the non-disclosure.
Thus, his Honour concluded that the appellant had not made good his claim that the respondent was negligent in any of the manners alleged (see at [342]).
As to Issue 6, causation of harm, which his Honour again approached in the event that he were found to be wrong in respect of the s 5O defence and also against the possibility that he be found to be wrong on the question of negligence, this was considered from [344] of his Honour's reasons. His Honour did so assuming, for the sake of argument, that the requirements for factual causation had been satisfied notwithstanding his findings to the contrary and noted that the remaining causation question concerned the scope of liability for any causally related damages incurred by the appellant (see at [345]-[346]).
The primary judge concluded that the appellant was unable to extend the scope of the argued liability to damages for the effects of the back surgery, including the additional localised pain which flowed from that surgery, in view of the clinical finding of a lumbar disc herniation in 2013 which demonstrated an impingement warranting surgery and the respondent's conclusion (reasonable at the time) that the appellant's symptoms were due to denervation (see at [347]-[349]).
As to the effects of a two year delay in the appellant having the thoracic surgery, his Honour noted that Professor Davis had indicated that there was insufficient data to enable this question to be addressed and that the issue was not clarified to the benefit of the appellant by the evidence of Professors Sheridan and Davis, especially where it was common ground that the thoracic tumour was slow growing (see at [351]-[352]). His Honour referred to the evidence of Dr Bentivoglio, a neurologist, and to the reports of Dr Steel and Dr Simon, but concluded that the medical evidence did not permit a reasoned non-speculative differential analysis that identified a level of thoracic related symptoms in 2013 and a different level in 2015 so as to enable a rational discernment of what might be considered to be a layer of symptoms compensable due to an argued delay; and hence the appellant had not satisfactorily discharged his onus of proof (see at [352]-[358]).
His Honour also noted that there were variations in the descriptions as to the effect of the appellant's experience of an exacerbating fall at work in August 2014, and suggested that at least some of the worsening effects of the sensory disturbances suffered by the appellant might be the result of a novus actus interveniens that would limit the scope for assessing damages (and compounded the difficulty of the task of arriving at a reasoned causation analysis (see at [359]-[361]).
As to the appellant's genito-urinary problems, the primary judge considered that discerning the likely cause of these was problematic (see at [362]-[363]) and concluded that the appellant had not discharged the onus of proof in this regard (see at [364]).
As to the cause of what his Honour accepted were the appellant's undoubted ongoing psychological problems, his Honour considered that the cause of those problems was difficult to assess (see at [365]).
Finally, as to Issue 7, the assessment of damages, on the assumption that liability and causation had been established, the primary judge would have assessed damages for: non-economic loss at 30% of a most extreme case (equating to $159,500) (see at [369]-[378]); past economic loss at $130,000 (based on the appellant's submission calculated on an assumed average partial loss of earnings of $400 per week net over 260 weeks to the date of hearing) (see at [379]); past loss of superannuation of $12,350 (following on from the past economic loss calculation) (see at [381]); future loss of earning capacity of $250,000 (as a reasonable buffer), including employer funded superannuation entitlements (see at [387]); for future domestic assistance $40,000 (as a discounted buffer) (see at [390]); and future out of pocket expenses of $20,000 (see at [392]); thus totalling $611,850. His Honour found that the claim for past out of pocket expenses was not proven by the appellant (see at [395]).
In light of the conclusion reached as to liability, the primary judge gave verdict and judgment for the respondent with costs.
The appellant emphasises that there was no evidence from the respondent that he thought that it was possible that chemical irritation was causing the appellant's symptoms that justified the decision to proceed to surgery and that he found no evidence of such irritation intraoperatively. The appellant complains that he was not afforded any detailed analysis of what the respondent thought about the scans and that he was not shown any significant neural compression on the scans or evidence of nerve root chemical irritation. The appellant says that in those circumstances it was not open to his Honour to find (at [327]) that the respondent's 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" (see as extracted below).
In his submissions in response to ground 2, the respondent says that the criticism of the primary judge's conclusion that the decision to provide lumbar surgery was reasonable (on the basis that it was premised upon an assumption not available on the evidence to the effect that the respondent would have considered nerve root irritation by a chemical process as a mechanism of the appellant's presenting symptoms) is unwarranted. The respondent says that he was plainly alive to the potential for the protrusion to irritate the nerve, referring to his evidence and his reference to "inflammation". The respondent points in this context to the fact that he explained that there were signs of "nerve root irritation" in his pre-operative clinical examination, by reference to straight leg raise findings as he recorded them in his 15 October 2013 report to the treating doctor (and that he was not cross examined about that evidence).
It is noted that the material constituting the disc was described variously as "gel-type", "crabmeat" or "plasticine", and the expert evidence was unanimous that if there is a tear in the disc, the material in the centre of the disc, known as "nucleus pulposis", which is "highly irritant" can leak through the disc into the epidural space and cause inflammation and irritation to the nerves of the spinal cord. The respondent points to the explanation by Professor Sheridan that it is "a well-accepted concept that nerve irritation from the irritant nature of the nucleus can certainly contribute to a patient's nerve pain"; and that he thought the concept concorded with the respondent's finding intra-operatively that there was adhesion. The respondent also notes that Professors Sheridan and Davis explained, in answer to a question from the primary judge, that physical contact between the nucleus pulposis (that has leaked through the herniated disc) and the nerve root is sufficient to cause the irritation chemically. The respondent says that there was no basis for doubting that he understood these things by reference to his training.
The respondent accepts that he did not expressly depose in the terms of the impugned sentence in [327] of the judgment (a concession to which the appellant points) but maintains that there was a sound basis in the evidence for the primary judge to find that he considered the potential for nerve root irritation to explain the appellant's symptoms. In reply submissions, the appellant emphasises that the particulars of the s 5O defence make no reference to the possibility that leakage of annular (nucleus) pulposis material could cause nerve root irritation rather than "mechanical pressure" from extruded disc material was something the respondent considered when making the decision to proceed to surgery; and the appellant says that the only evidence about compression given by the respondent was in regard to mechanical compression (and that it was to this evidence that the cross-examination of the respondent was directed).
It was not incorrect for the primary judge to have noted that the appellant's history of symptoms (as reported to the respondent) was concordant with pathology at the lumbar level and that there was evidence of denervation. The fact that the disc bulge was not large is also consistent with the evidence given by Professors Sheridan and Davis (and is not here challenged). Both Professor Sheridan and Professor Davis gave evidence before the primary judge that even the slightest disc bulge could cause significant inflammation (and that the obverse was also true: a large disc bulge could also cause minimal inflammation), and thus the size of the bulge does not necessarily militate against the conclusion that lumbar surgery was warranted, in light of the appellant's symptomatology.
The complaint here made is that the primary judge erred in making the assumption that the respondent's training would have made him aware of the potential mechanism for disc extrusion to cause nerve root irritation by a chemical process rather than by manual compression. Apart from the irony that Professor Davis himself was seemingly quick to place reliance on assumed knowledge within the profession (insofar as he gave evidence that it was a rare occurrence for lumbar symptoms to proceed from a thoracic cause but the possibility was nevertheless well-known by the neurosurgical community, and thus it should have been investigated), I do not consider that the observation made in the last sentence of [327] of the primary judgment (here criticised by the appellant as being no more than speculation) led his Honour to err as to the reasonableness of the decision to recommend lumbar surgery. What clearly 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) (see at [328] of the primary judgment) and the MRI scan had indicated a disc herniation and associated disc bulge.
The primary judge's reasoning is apparent from [331]:
331. In the absence of the reported sensory losses to the right lower leg as described by the plaintiff, and a suspected denervating cause for those symptoms, Dr Pope was required to balance the potentially damaging risks associated with not operating against the potential risks associated with an operation. These matters were properly canvassed with the plaintiff and consent was given for the operation to proceed.
The subsequent discovery during the operation of the adhesion caused by the "leakage" or extrusion of disc material is, to my mind, a red herring when one is considering whether, as at the time that surgery was recommended, there was a breach of the accepted duty of care. So, too, is whether the respondent would or should have been aware, by reason of his training, of the potential for chemical irritation of the nerve root resulting from such extrusion to cause pain.
What is relevant is that Professor Sheridan (whose evidence, after numerous sessions in which it was actively tested and questioned by the primary judge, was accepted by the primary judge) considered 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 history that the appellant had given and, significantly, having regard to the MRI scan that Professor Sheridan was adamant showed enough "nerve impingement, compression" to justify surgery.
This brings me to sub-ground 2(b). True it is that there were conflicting opinions (both at the time and subsequently) as to what was shown on the MRI scans. Dr Fung and Dr Jones concluded that they showed no nerve root compression. Professor Davis reached the same conclusion. Professor Sheridan was adamantly of the opposite opinion (and, unlike Professor Davis, had considered the "dynamic" images rather than, at least initially, only the stills of the MRI scans with which Professor Davis had initially been provided). Moreover, it is simply not correct to suggest that there was no evidence that the respondent did not consider at the time that there was evidence of compression of the nerve root on the MRI scan. That was what he indicated to the treating doctor on his initial review of the scans (in which he begged to differ from the conclusion reached by Dr Fung). Ironically, Professor Davis was emphatic that it was the surgeon who was required to review the scans and make the decision to operate, irrespective of the radiologist's views.
Therefore, at most, there might be a complaint that alternative causes for the presenting symptoms were not adequately investigated (which is the nub of ground 3 - discussed below). However, in the light of Professor Sheridan's evidence it cannot in my opinion be said that it was not reasonable for the respondent to recommend lumbar surgery having regard to the history of the symptoms (including the absence of symptoms pointing to a thoracic cause) and the fact that the MRI scan showed a disc herniation and associated small disc bulge (and in both the respondent's and Professor Sheridan's views a degree of compression or impingement), notwithstanding that a contrary conclusion was reached by the radiologist at the time.
Thus, ground 2 is not made good.
The respondent says that this non-disclosure deprived the respondent of the "diagnostic opportunity" that such disclosure would have provided, and notes that the neurosurgeon (Dr Steel), from whom the appellant sought a second opinion, also "had no reason" to pursue a thoracic cause.
Further, whether or not the criticism of Professor Davis' opinion as being based on hindsight is justified, the answer to the appellant's complaint in this ground is that, as I read his Honour's reasons, his Honour did not base his conclusion on the issue as to whether the thoracic lesion should have been diagnosed at an earlier stage on the impugned reasoning of Professor Davis. Rather, his Honour made clear that in his opinion there were two essential or necessary conditions that were required for that contention to be made good: first, that the appellant disclose a history of symptoms that necessitated such an investigation (which only occurred later) and, second, that there be an emergent clinical discordance between the appellant's reported symptoms and imaging results (from which it would be reasonable to postulate the existence of a non-lumbar cause for the symptomatology). His Honour found that neither was the case here; and clearly gained comfort from Professor Sheridan's opinion that the respondent's clinical management of the appellant had been exemplary.
The reliance placed by Professor Davis on the academic literature (as to the location of pain (and, on Professor Davis' account, sensory symptoms encapsulated by use of the term "sciatica") relevant to a thoracic cause) was the subject of cogent criticism by Professor Sheridan and, from my review of the transcript, it was well open to the primary judge to conclude that the academic literature was not relevant to the circumstances of the present case; and to accept Professor Sheridan's opinion on that issue. His Honour was entitled to find Professor Davis' evidence unreliable, in light of Professor Davis' failure to view the 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. I do not find the conclusions of the primary judge in this regard to be glaringly improbable, or contrary to compelling inferences, as is required by the not undemanding test in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29] per Gleeson CJ, Gummow and Kirby JJ.
Accordingly, I consider that ground 3 is not made good.
In any event, I am of the view that the appellant's case fails on causation.
As the primary judge correctly noted at [344] of his Honour's reasons, to sustain a finding of negligence that sounds in damages, a plaintiff must demonstrate factual causation (and satisfy the scope of liability requirements) pursuant to s 5D of the Civil Liability Act:
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
Causation in negligence is essentially a question of fact to be answered by reference to common sense and experience - it is an inquiry into which considerations of policy and value judgments also enter. The "but for" test of factual causation (being whether the negligent act was the sine qua non of the harm suffered) has an important role to play in resolving the question of causation, albeit applied as a negative criterion of causation, qualified by the aforementioned requirements of common sense, experience, and policy considerations (see generally March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 especially at 515-516 per Mason CJ).
The test by which causation is to be determined in cases of medical negligence is subjective (see Ellis v Wallsend (1989) 17 NSWLR 553 (Ellis); Gover v South Australia (1985) 39 SASR 543 at 564, 566). Thus, in light of the alternative justification for the lumbar surgery, and the particularisation of the harm as "unnecessary surgery" (which in turn delayed diagnosis of the thoracic lesion, resulting in the exacerbation of neurological damaged caused thereby, and also resulted in adverse sensory sequelae arising from the unnecessary surgery), in order for the appellant to demonstrate that the inadequate pre-operative assessment caused the unnecessary surgery, he must demonstrate that the surgery would not have occurred (at the appellant's direction, or the respondent's direction) were it not for the allegedly negligent pre-operative assessment and the conclusion by the respondent that there was a lumbar cause of the appellant's sensory symptoms. Answering this question involves an exercise in retrospective reasoning, bearing in mind that, however honest the parties may try to be in answering that question, self-interest and hindsight will necessarily colour their response (see Ellis at 560).
In Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42, Kirby J said the following of the causation analysis in an appeal (at [157]):
As Ipp JA correctly pointed out, conclusions on questions of causation demand the drawing of sensible inferences, including on the basis of hypothetical facts that, by definition, have not occurred. Responding to such questions depends very much on the assessment of the character and personality of the plaintiff and what he or she would have done had other and different precautions been taken by the defendant. Trial judges' assessments of such matters are conventionally given considerable respect by appellate courts, called upon to reconsider conclusions reached at trial on nothing more than a transcript and their own assessment of how individuals, whom they have never seen or heard, would react to changed circumstances.
The appellant argues that there was insufficient evidence of nerve root compression to justify the surgery and that, in the absence of evidence of any such nerve root compression, the respondent doctor ought to have performed a more comprehensive assessment, which would have led to his discovery of the bony tumour in the thoracic spine.
While the primary judge (at [327] extracted above) appears to consider the possibility of nerve root irritation caused by the leakage of the nucleus pulposis as a matter relevant to the respondent's breach of his duty of care (as I have discussed above), it also falls for consideration in the causation analysis. It cannot be said that the pre-operative assessment was a necessary condition of the allegedly unnecessary surgery (and any sequelae of that surgery): even if the alternative diagnosis of chemical irritation was not within the knowledge of the respondent, it is likely that the surgery would have occurred even if a more extensive assessment had been conducted, which would have raised the possible diagnosis of chemical irritation. The alternative justification for the lumbar surgery - whether or not it was something of which the respondent was aware, due to his training - justifies the inference that the lumbar surgery would have nevertheless occurred, and that the failure to conduct a more extensive assessment and to consider a thoracic, as opposed to a lumbar, cause of the appellant's symptoms was by no means negligent.
It cannot be said that the respondent's (allegedly) inadequate pre-operative assessment caused the unnecessary surgery where that surgery would not, in any event, have been unnecessary given its alternative justification. In light of this alternative justification, the respondent nonetheless would not have had cause to explore alternative diagnoses, and thus would not have had cause to consider a thoracic cause of the appellant's symptoms. The allegedly inadequate pre-operative assessment thus did not cause any delay in the diagnosis of the thoracic lesion, nor can it be said to have caused an exacerbation in the appellant's sensory symptoms. Furthermore, as the primary judge found, in the absence of a diagnosis of cauda equina, the evidence was insufficient to demonstrate that the lumbar surgery caused the appellant's genito-urinary issues. Thus, factual causation has not been established.
In the circumstances, there was no error in the conclusion that negligence was not established.
The difficulty with the respondent's contention on this issue is that the onus of establishing a defence based on s 5O rested on the respondent and the absence of evidence of a prevailing different standard does not establish that the respondent here acted in accordance with competent professional practice at the time for the purposes of a s 5O defence.
I turn then to the particular sub-grounds raised by the appellant in the amended grounds of appeal.
In response, as to the complaint in ground 1(a), the respondent submits that the respondent's evidence (to the effect that the vast majority of neurosurgeons in Australasia would have acted as he did and performed the surgery) is plainly directly relevant to the s 5O enquiry, and that the primary judge was correct to consider it.
I consider that the complaint in ground 1(a) is well-grounded. The evidence as to the removal of nucleus pulposis content in circumstances where an annular tear is discovered in the course of lumbar surgery is not relevant to the decision as to whether to perform the lumbar surgery in the first place.
The respondent also says that the proposition that there was no contact between the disc bulge and the spinal cord is at odds with the appellant's medico-legal radiology evidence (noting that Dr Bowden interpreted the radiology as showing "contacted non-compressed exiting L5 nerve roots" and he expected that the appellant would have experienced "mild to moderate L5/S1 discogenic pain and/or right S1 nerve distribution radiculopathy [pain, weakness, numbing, tingling]" and that Dr Jones, radiologist, similarly reported that the MRI showed "a right posterolateral L5-S1 annular tear with a small focal protrusion, but no significant neural encroachment", (not that there was no encroachment).
As to ground 1(b), the expert neurosurgeons did indeed agree that lumbar surgery was not indicated in the absence of nerve root compression (as noted above). However, they differed on whether the MRI scan showed sufficient (or any) compression or impingement in order to justify lumbar surgery and it is an overstatement to suggest that the respondent gave no evidence that he thought such compression was found in circumstances where there was at least evidence that in his contemporaneous report he differed from the view that Dr Fung had expressed as to the absence of nerve root compression and he was adamant in his oral evidence that he had observed disc herniation and an associated small bulge on the MRI.
In any event, for the purposes of the s 5O defence it is relevant that Professor Sheridan considered that the MRI scan showed sufficient nerve root compression or impingement to warrant surgery and that competent professionals in the respondent's position would have adopted the same course in light of the presenting symptoms and clinical history. Ground 1(b) is not made good.
As to the ground 1(c) complaint, the primary judge considered in some detail the competing expert evidence from the neurosurgeons; and tested that evidence comprehensively in the concurrent evidence sessions. I do not consider that the primary judge's conclusions have been shown to be affected by error in this regard. True it is that part of the reason that at [300] his Honour said that Professor Davis' suggested different clinical pathway for investigation approach should be rejected was that it was affected by hindsight considerations but his Honour also considered that (although a rational differing clinical approach) it did not displace or negate the validity of Professor Sheridan's opinion (the primary judge saying that Professor Davis' approach was not described as being widely accepted peer professional opinion concerning what constituted competent practice).
As to the opinion of Professor Sheridan, the appellant complains that this was premised on matters that were not in evidence and that his opinion went outside of matters pleaded in the s 5O defence, noting that the relevant allegation in the defence was that:
(b) The MRI scan dated 23 October 2013 demonstrated an L5/S1 disc bulge with right lateral recess narrowing and nerve root irritation which was consistent with the Plaintiff's symptoms and clinical examination findings.
The appellant complains that it was not alleged by the respondent in his evidence or his pleadings that he performed the procedure on the appellant in order to remove the nucleus pulposis material in the context of a tear of the annular fibrosis in the vicinity of an L5 nerve root (the appellant suggesting that his Honour found to the contrary at [296], as discussed above). Further, as noted above, the appellant says that the evidence of the respondent which was cited by his Honour in this context (see at T 271.37-50, T 272.1-25) was evidence about what the respondent did intraoperatively; not evidence about why he recommended the surgery in the first place. The appellant says that there was no criticism of the respondent's surgical technique (a matter to which the primary judge pointed at [296]). The appellant maintains that the evidence cited by his Honour (at T 272.20-25, that "the vast majority of neurosurgeons in Australasia would perform … a local discectomy and remove … the nucleus pulposis content") was not relevant to the s 5O defence.
I do not read his Honour's judgment at [296] as a finding that the respondent made the decision to operate in order to remove nucleus pulposis material. Rather, his Honour was there recording the evidence given by the respondent when he was cross-examined in the concurrent evidence session as to the operation report. However, as noted above, there was evidence from the respondent (not the least in the contemporaneous report to the appellant's treating doctor) that he operated in circumstances where he differed from the view expressed by Dr Fung that the MRI scan showed no nerve root compression.
Moreover, I do not accept the complaint that Professor Sheridan's evidence went outside the pleaded claim. Reliance was placed by the respondent on s 5O in his pleaded defence and the issue as to what was shown by the MRI scan was a live issue from the outset of the proceeding. What transpired, in the course of considering the MRI scan (and exploring the steps that were taken during the surgery itself) was that the suggestion of chemical irritation as a potential cause of the appellant's pain was raised in the course of the concurrent evidence sessions. There was ample opportunity for Professor Davis to respond to that issue and, ultimately, I do not accept that the finding that there was no negligence requires reliance on that (admittedly hindsight) analysis of an alternative basis on which the lumbar surgery could be justified (as considered above in the context of ground 2).
Against this, the respondent submits (at [11] and [58] of his written submissions) that the "practice point" described in McKenna does not form part of the law of New South Wales. In this regard, the respondent makes two submissions (at [59]): first, that the reasoning in McKenna on this issue was wrong and unfaithful to the plain words of s 5O; and, second, that McKenna was overturned on appeal to the High Court of Australia and accordingly did not establish any binding precedent. The respondent also relies upon the observations of Basten and Simpson JJA in Sparks (set out at [26]-[30]), to which I refer below. However, if that contention be wrong, the respondent says that if the practice point is good law then the primary judge should have found that he conformed to a relevant practice.
The respondent says that the flaw in the appellant's case, premised solely upon the evidence of Professor Davis, is that it is not sufficient, to establish medical negligence, to adduce evidence from another medical practitioner to the effect that he or she would have managed the patient differently. It is noted that reasonable minds may reasonably differ in matters involving the exercise of clinical judgment. The respondent points to the nature of the clinical judgments involved as explained by Professor Sheridan in his oral evidence (at T 344.19- X) to the effect that:
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 subject business
The respondent points out that Professor Davis did not: depose that a reasonable body of his peers would regard the respondent's management as falling short of acceptable standards of care; nor even in his reports responding to those of Professor Sheridan did Professor Davis traverse Professor Sheridan's opinion on the s 5O issue. The respondent argues that although the appellant complains about the primary judge's treatment of Professor Davis' evidence, he does not challenge those findings, nor does he contend that Professor Davis' evidence should have been differently construed.
The respondent says that the primary judge's unchallenged findings as to the matters that informed the respondent's decision to operate on the appellant's lumbar pathology demonstrate that the decision was, in the words used by Mahoney JA in Lowns v Woods (1996) Aust Tort Reports 81-376 "a decision made by a treating doctor not simply as the result of deductions or inferences drawn from general principles; it was a decision made after weighing the circumstances of the [patient's] individual case".
The respondent says that, at its highest, the appellant's case is based on Professor Davis impugning the respondent's decision to operate, and asserting, with the benefit of hindsight, that he would have suspected a thoracic cause, but falling short of suggesting that no reasonable surgeon in the respondent's position could have proceeded as he did.
The respondent maintains his reliance on Professor Sheridan's report of 27 May 2019 in which Professor Sheridan expressed opinions supportive of the competent professional practice defence, which were reiterated in his oral evidence.
Insofar as the complaint by ground 1 is that the upholding of the s 5O defence was "vitiated by error on the question of whether lumbar spine surgery should have been undertaken", the respondent says that this not only invites hindsight considerations but it also ignores that the question thrown up by s 5O, and addressed by the primary judge, is whether there was evidence that satisfied the Court that, in deciding to undertake the surgery, the respondent acted in a manner that peer professional opinion in Australia in 2013-14 regarded as competent professional practice. The appellant, in his submissions in reply, maintains that the decision to proceed to an elective operative procedure, as in this case, does not constitute a "practice" and says that the evidence highlighted in the respondent's submissions (at [62]) might go to the competency of a decision but that if the decision does not constitute a "practice", these matters are of no relevance as s 5O is not engaged.
His Honour noted in McKenna that none of the psychiatric experts in that case had suggested that there was a "then subsisting practice" in accordance with which the doctor had acted in deciding to discharge the deceased (see at [163]); rather, the evidence was as to the reasons for the discharge being reasonable without identifying any relevant practice in existence at the time. Pausing here, it seems clear that what was here an integral part of his Honour's reasoning was the temporal requirement indicated by s 5O (i.e., "in a manner that (at the time the service was provided) was widely accepted …"), and the need to identify "any relevant practice" at that time. His Honour considered that no defence under s 5O was available in that case because the evidence did not identify "a practice" in existence at the time, saying at [165] that:
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.
It may be noted that at [165] his Honour was not eschewing the possibility that there might be "many practices" in the medical profession concerning the manner in which the relevant conduct was performed.
The High Court unanimously allowed an appeal from this decision on the basis that the Hospital and the psychiatrist did not owe a duty of care. Accordingly, the issue of the application of s 5O was not reached (see Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 at [34]-[35]).
Basten JA nevertheless concluded that the evidence relied upon by the anaesthetist in Sparks fell short of establishing a standard, widely accepted in Australia, of competent professional practice (see at [88]).
Macfarlan JA adhered to the views that his Honour had expressed in McKenna, noting (at [211]) that s 5O uses the past tense (in the words "at the relevant time … was widely accepted") to refer to the relevant peer professional opinion; and said that "[t]hus, the opinion about the manner in which the defendant acted must have existed, and been widely accepted, at the time the conduct occurred". Macfarlan JA went on (at [214]) to note that the case did not, so far as the issues of negligence on the appeal were concerned, relate to "any particular point of medical practice, such as the use of a particular drug, surgical technique or item of surgical equipment". Rather, his Honour considered that, as in McKenna, determination of the issue of negligence required reference to a variety of factual considerations including those there stated (at [214]); and concluded that the expert evidence did not point to an established practice but was in effect saying that in the expert's view the appellants acted reasonably and that he considered that a wide range of his professional peers would be likely to take the same view.
Basten JA considered that the Court was not bound to apply McKenna (which he considered too restrictive) and declined to follow that decision (see [35]-[40]) observing that it had been overturned and referring, inter alia, in that context to what was said by Kirby J in Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48 at [56]).
Simpson JA considered that she was obliged to apply McKenna, but doubted the correctness of the decision, saying (at [332]-[333]) that:
332. I consider that I am obliged to accept McKenna (in this Court) as stating the prevailing construction of s 5O: Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 at [277]-[279]. But for that constraint, I would have considered that the language of s 5O makes it plain that "competent professional [here, medical] practice" is intended to denote "the practice of a profession [here, medicine]", and not a specific practice or method of providing the professional services in question. That construction is supported by the absence of the indefinite article in conjunction with "professional practice", and the use instead of the adjective "competent", which to my mind signifies professional practice in a general sense, rather than an identifiable, specific, and discrete aspect of the profession or method of providing the professional service.
333. As construed in McKenna, s 5O can apply only in limited circumstances, where the defendant can, or seeks to, identify a discrete practice to which he or she conformed. It necessarily excludes unusual factual circumstances, such as occurred in McKenna, and such as occurred in the present case. It does not appear to me that s 5O was intended to have such limited application. However, as I have said, I consider myself constrained to follow and apply that decision.
The Panel said at [3.16]:
3.16 The Panel considers that the test set out in paragraph 3.13 is preferable both to the Bolam rule as originally formulated, and to the test suggested by Term of Reference 3(d). 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'.
That led to the insertion of s 5O in the legislation, there framed by reference to widely accepted peer professional opinion as to competent professional practice.
Recognition that there have been differences in judicial opinion as to the proper operation of s 5O was the subject of observation by Macfarlan JA in Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107 (at [64]) and Leeming JA (with whom Basten and Meagher JJA agreed) in South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 (at [114]).
In Liprini v McIntyre [2019] NSWSC 355 at [176], Simpson AJA applied McKenna "[w]ith reservations about the McKenna construction". Academic criticism of McKenna was cited in Frangie v South Western Sydney Local Health District trading as Liverpool Hospital (2019) 29 DCLR(NSW) 346; [2019] NSWDC 42 (Frangie) in a footnote at [23] by Abadee DCJ. Relevantly, the citation was to D Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed, 2018, Thomson Reuters), in which it was stated (at p 246) that:
… the passage at [160] [in McKenna] is an impermissible gloss on the terms of the section. There is no requirement for a defendant to establish the existence of "a practice". What is required is that they establish that their "provision of a professional service" accorded with "competent professional practice". The reference to "practice" is a reference to the carrying on of the profession, not a reference to a customary or habitual manner of providing the particular professional service in question.
In the present case, as evident from the passages cited from his Honour's reasons, the primary judge gave a broad interpretation to the words "professional practice" (cf Jones v Braund (No 2) [2020] NSWDC 54 and Frangie, where identification of a specific practice which accorded with widely accepted peer professional opinion was required). As already observed, it is not necessary here to determine the controversy given the finding no negligence has been made out. Had it been, then it would first be relevant to note that the principles governing the treatment of precedents in cases of statutory construction that were considered by the High Court in Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1; [1987] HCA 19 (see Mason J, as his Honour then was, at 13), particularly that:
… The fundamental responsibility of a court when it interprets a statute is to give effect to the legislative intention as it is expressed in the statute. If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute … It is no part of the Court's function to perpetuate error and to insist on an interpretation which, it is convinced, does not give effect to the legislative intention … The injustice or inconvenience which will result from displacement of a longstanding decision is certainly a very important factor to be considered, but there is no support in principle or authority for the proposition that the court should persist with a manifestly incorrect interpretation on the ground that it will cause injustice or inconvenience. …
This statement of Mason J (as his Honour then was) was endorsed by McHugh, Gummow and Heydon JJ in McNamara (McGrath) v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646; [2005] HCA 55 at [42]. See also Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 at 492 per the Court; and the observations of this Court in Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 at [277] citing Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9 at 268-269 per Dawson, Toohey and McHugh JJ as to the caution to be exercised in this regard.
It is also unnecessary to resolve the issue as to whether an intermediate appellate authority is necessarily dicta because it has been subsequently overturned by the High Court (albeit on other grounds) (see Nationwide News Pty Ltd v Rush (2020) 380 ALR 432; [2020] FCAFC 115 per White, Gleeson and Wheelahan JJ at [507]; Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317; [2019] NSWCA 11 per Leeming JA at [38]).
Had it been necessary to determine, I would have concluded that McKenna should not be understood as requiring in all cases that there be "a" specific practice such as might be set out in a manual or the like but that what is required (consistent with the intent of the legislature for the reinstatement following Rogers v Whittaker of a qualified "Bolam" rule) is that one focuses on the conduct of the practitioner and determines whether that was in accordance with what, at the time of the conduct, was widely accepted by peer professional opinion to be competent professional practice, i.e., that it is not necessary to identify "a" practice as such, but there be identified a widely accepted (as competent professional practice at the relevant time) manner of acting (and in that sense practice) with which the practitioner complied at that time. In other words, I would adopt the formulation by Simpson JA in Sparks as more correctly adhering to the text of s 5O. That accords with the wording of the section, i.e., one is ascertaining whether, at the time of the impugned conduct (this being the temporal requirement emphasised in Sparks) the manner in which the doctor acted was in accordance with what was widely accepted as competent professional practice. Much will turn on how the "manner of acting" or "practice" is framed in the relevant context.
This conclusion that s 5O of the Civil Liability Act does not require the identification of "a" specific practice, accords with the text, context and purpose of that provision.
As to the text of s 5O, I agree with the reasoning of Basten JA and Simpson AJA in Sparks. Notably, the remarks of Basten JA (at [31]) that 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. I agree with his Honour that, where the s 5O defence is raised, it will be supported (or attacked) not by reference to some specific, established practice, but instead by reference to how an assessment of the circumstances (which may be unique) would be undertaken by a knowledgeable and experienced practitioner. This conclusion is only bolstered by the use of the word "manner" in the provision: it is the manner in which the defendant has acted, rather than a practice with which the defendant complied, that is the subject of consideration and the focus of the professional opinion provided (see also the reasons of Basten JA in Sparks at [32]). This conclusion is further bolstered by the absence of the indefinite article in conjunction with the phrase "professional practice". As Simpson AJA opined in Sparks, the language of s 5O makes clear that "competent professional practice" is intended to denote "the practice of a profession" as opposed to a specific practice or method of providing the professional services in question.
As to the purpose of the provision, in light of the recommendations of the Ipp Report (extracted above) I am not of the opinion that it was the intention of the legislature that s 5O operate in such circumscribed circumstances as would be the case if the McKenna interpretation of the provision is preferred. There are compelling arguments of policy that would militate against the McKenna construction of the provision, namely: that the provision would have limited, if any, application to unusual factual circumstances; that it may have a chilling effect on the development of the profession, insofar as practitioners lack incentive to challenge established (but inadequate) practices; and it may encourage the practice of defensive (as opposed to patient-centric) medicine.
In this particular case, Professor Sheridan's evidence established that the respondent, in recommending lumbar surgery, had indeed acted in accordance with the general practice of a significant section of the medical community in that he had taken the appellant's history, had taken account of the appellant's presenting symptoms, had examined the appellant, had obtained radiology scans and, having interpreted them as showing compression of the nerve root at the L4/5 level, had recommended lumbar surgery (with appropriate qualifications as to the likelihood of success of that surgery). Hence, in my view, s 5O was engaged and was satisfied.
The respondent points to the tax returns for the years ending 30 June 2014 to 30 June 2018 which showed gross income increasing annually, and more than doubling the year after the lumbar surgery. The respondent notes that for the year ended June 2017 the appellant's gross earnings were $81,343, notwithstanding that he took a ten week trip to Europe and South America returning in August 2017, and that the appellant earned a similar amount in 2018, during which he toured Spain and Ireland for three weeks.
The respondent complains that the primary judge gave no reasons for his past economic loss allowance, beyond stating that it was "derived from an assumed average partial loss of earnings" (see at [379]). The respondent says that there was no basis for any such assumption in the evidence; noting that there was no evidence of pre-surgery earnings against which to compare the post-surgery position.
On appeal, the appellant conceded that there was some difficulty in reconciling the appellant's pre-injury tax returns in this regard (attributing this to him being new to the country and to his job - T 59).
The respondent says that the reasoning that led to the substantial $250,000 allowance (by way of buffer for future economic loss) was similarly flawed. Complaint is made that there was no consideration as required by s 13 of the Civil Liability Act, of the appellant's "most likely future circumstances but for the injury"; and that, contrary to s 13(5) of the Civil Liability Act, the primary judge did not state the assumptions on which the award was based. The respondent says that nothing in Penrith City Council v Parks [2004] NSWCA 201 and the other authorities cited at [385] of the judgment relieved the Court of that burden.
Further, the respondent complains that, in determining that an award by way of buffer was appropriate, the primary judge did not compare "the economic benefits the appellant derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury..." as the respondent says must be done when "the broad approach of a buffer" is adopted.
Thus, the respondent says that the allowances for past and future economic loss cannot be reconciled with the evidence of the appellant's extensive overseas travel since the 2014 surgery; his qualifications as an estimator and quantity surveyor and his perception that he has the skillset to work in that area; his employment experience, including checking the quality of construction; and his employment, at the time of trial, in Melbourne, as a surveyor.
Reference is also made in this context to the appellant's perception that at the time of trial, some five years post the thoracic surgery, he has achieved an improvement in his physical capacity compared with his pre- surgical condition; to his pursuit of running (including competition in August 2019 in the 14 kilometres City to Surf in 74 minutes and another ten kilometre fun run and the appellant's evidence that he runs "frequently", two or three times per week, three to four kilometres at a time), from which, as the appellant perceives it, he benefits and which he intends to continue to pursue; his regular attendance at a gym which he started in 2019; the history given to a physiotherapist at Bondi in January 2019 to the effect that he rarely has a day with pain, and that his back and hip have been good; the appellant's perception that he is in better shape now than before he saw the respondent in 2013; and aspiration to get back to skiing.
The respondent thus says that the primary judge should have found that the claims for past and future economic loss, and past superannuation benefits were not established.
MEAGHER JA: I agree with Brereton JA.
WHITE JA: The facts giving rise to this appeal are fully expounded in the reasons for judgment of Ward P and Brereton JA which I have had the advantage of reading in draft.
Subject to the observations which follow, I agree with the reasons of both Ward P and Brereton JA and I agree with the orders proposed by the President.
I add the following observations in relation to the questions concerning the proper construction of s 5O of the Civil Liability Act 2002 (NSW). The section is quoted in their Honours' judgments, but for convenience I venture to repeat it below.
"5O Standard of care for professionals
(1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted."
The primary judge did not accept that he was bound by the decision of this Court in McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 at [160] (per Macfarlan JA (Beazley P agreeing)) to conclude that the section operated only if there were first identified a specific practice that was in existence at the time Dr Pope's impugned service was provided (at [279]-[280]). His Honour felt himself at liberty to follow a contrary opinion of Basten JA in Sparks v Hobson; Gray v Hobson [2018] NSWCA 29; (2018) 361 ALR 115 at [31] (J [280]).
In Sparks v Hobson Simpson JA expressed a similar view to that of Basten JA (at [332]) but considered that she was obliged to accept the authority of McKenna as stating the prevailing construction of s 5O, citing Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [277]-[279]. The observations of this Court in Gett v Tabet in relation to the caution to be exercised in declining to follow an earlier decision of the Court did not address the circumstance where that earlier decision had been overturned. 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 so far as the doctrine of precedent is concerned, although such parts of the decision as were not overruled by the High Court remain dicta which may be highly persuasive (Rupert Cross, Precedent in English Law (3rd ed, 1977, Clarendon Press) at 126); Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 410; [1981] HCA 4 (Aickin J); Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48 at [56] (Kirby J); Sutherland Re; French Caledonia Travel Service Pty Ltd (In Liq) (2003) 59 NSWLR 361; NSWSC 1008 at [59] (Campbell J); Sparks v Hobson at [35]-[40] (Basten JA)).
The question of whether the primary judge would be obliged to follow such considered dicta did not arise because contrary persuasive dicta had been enunciated by Basten and Simpson JJA in Sparks v Hobson. With respect, I consider that Simpson JA would have been entitled to give effect to her own opinion on the construction of s 5O in Sparks v Hobson without deferring to the contrary view of Macfarlan JA (Beazley P concurring) in McKenna.
Macfarlan JA rightly observes that the construction of s 5O preferred by Basten and Simpson JJA in Sparks v Hobson and propounded by the respondent in the present appeal, requires reading s 5O(1) as if it provided:
"(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 or would have been widely accepted in Australia by peer professional opinion as competent professional practice."
I agree with Brereton JA for the reasons his Honour gives that, having regard to the genesis of s 5O, the reference to its being established that the professional acted in a manner that "was" widely accepted in Australia by professional opinion as competent professional practice includes a reference to what a significant body of competent professionals "would have done" (at [314]). I agree that the absence of an indefinite article before "competent professional practice" tells against the reference being to a particular identifiable subsisting practice (at [314]). I also agree with his Honour's observation that the reason for the use of the past tense "was" was to preclude the use of the benefit of hindsight (at [314]).
This construction is supported not only by the history leading to the adoption of s 5O but by the text of s 5O(3) and (4). Subsection 5O(1) refers to the professional acting in a manner that was widely accepted in Australia "by peer professional opinion as competent professional practice". The verb "was" applies to the existence of "peer professional opinion". The peer professional opinion referred to in subss (3) and (4) refers to the peer professional opinion referred to in subs (1). Subsections (3) and (4) contemplate that the evidence that can be given in relation to the matters in subs (1) is not confined to evidence of what was existing widely accepted peer professional opinion about a practice existing at the time the service was provided, but can include peer professional opinions offered at trial. Section 5O(3) states that the fact that there "are" (not "were") differing peer professional opinions does not prevent any one or more of them being relied on for the purposes of the section. Subsection (4) provides that peer professional opinion "does not have to be" (not "does not have to have been") universally accepted to be considered widely accepted. This indicates that s 5O(1) need not be interpreted completely literally as requiring the existence, at the time the service was performed, of professional peer opinion as to an existing practice.
For these reasons, in addition to the reasons of Ward P and Brereton JA, I would dismiss the appeal.
The matters raised by the cross-appeal could have been raised by a notice of contention in which event no formal order dealing with the notice of cross-appeal would have been required. Because the appeal is dismissed, the notice of cross-appeal does not arise and should also be dismissed, but the costs of both the appeal and cross-appeal should be paid by the appellant. I agree with the orders proposed by the President.
BRERETON JA: The appellant Mr Paul Dean was referred by his general practitioner to the respondent Dr Raoul Pope, neurosurgeon, in respect of a complaint of abnormal sensory symptoms in his right lower limb. Ultimately Dr Pope, diagnosing a lumbar pathology (specifically, a "recalcitrant L5 radiculopathy due to a L5/S1 disc herniation"), recommended (on 12 November 2013) and performed (on 16 June 2014) lumbar surgery (specifically, an L4/5 decompression, microdiscectomy and nerve root rhizolysis). This surgery did not relieve the appellant's symptoms, and he began to experience additional symptoms, including back pain. Subsequently, in August 2015, MRI and CT scans of the appellant's thoracic spine revealed a large benign bone lesion or tumour compressing his spinal cord at the level T5/6, which was surgically excised the following month, relieving the appellant's lower back pain, though not his sensory symptoms.
The appellant sued Dr Pope, complaining that he was negligent in recommending lumbar surgery in the circumstances. His case was that the symptoms with which he had presented in 2013 were attributable to the thoracic lesion and not to a lumbar source; that Dr Pope had wrongly diagnosed a lumbar cause and proceeded to lumbar surgery without any proper medical or scientific foundation (in the absence of nerve root compression), and without adequate investigation of any alternative cause; that as a result the appellant was subjected to unnecessary lumbar surgery (occasioning significant injuries, including localised back pain, genito-urinary problems and a somatoform disorder, adversely impacting his career and livelihood), and the discovery of the bony lesion in his thoracic spine was delayed (resulting in avoidable neurological degeneration).
In the District Court, Levy SC DCJ upheld Dr Pope's defence, under Civil Liability Act, s 5O, that he had acted in a manner that was then widely accepted by peer professional opinion as competent professional practice. His Honour proceeded, in the alternative, to reject the allegations of negligence, and contingently to assess the appellant's damages at $611,850.
The facts summarised above are more fully recounted in the judgment of Ward P, which I have had the benefit of reading in draft. As her Honour demonstrates, this appeal can be decided without determining the questions pertaining to the "defence" under Civil Liability Act, s 5O, for the consideration of which an enlarged bench was constituted. However, as Basten JA explained in Sparks v Hobson, [1] s 5O once invoked effectively provides the applicable standard of care:
"[17] Despite the common acceptance of the provision as a "defence", that characterisation gives rise to difficulty. To be a defence carries the implication that the plaintiff must establish breach according to the general requirements of s 5B of the Civil Liability Act, following which the practitioner bears the burden of establishing that his or her conduct amounted to "competent professional practice" in the terms of s 5O(1). The heading of the section ("Standard of care for professionals") indicates its purpose. Although the heading is not part of the Act, it may be taken into account as extrinsic material in construing the provision, in accordance with s 34(1) of the Interpretation Act. In any event, it is tolerably clear that the provision sets a standard. However, if the standard is met, it follows that the conduct was not negligent.
[18] Accordingly, once s 5O is invoked, arguably the general exercise required by s 5B becomes otiose. There can only be one standard against which to judge the conduct of a professional defendant, although that standard may depend upon the resolution of conflicting evidence called by the plaintiff and the defendant. It is only if one takes the plaintiff's evidence in isolation that a two-stage process, involving the assessment of the plaintiff's claim followed by assessment of an affirmative defence, will arise. However, in a practical sense, that is not how the dispute should be determined. Rather, a judgment will be given based on all of the evidence. Nor is the exercise helpfully clarified by speaking of shifting burdens of proof. The question for the trial judge is ultimately whether the plaintiff has established that the conduct of the defendant failed to comply with the relevant standard of care. …"
In my view, therefore, it is preferable to consider the challenge to the s 5O defence first. Such an approach is reinforced by the circumstance that the s 5O defence was dispositive of the case at trial.
Below, I first summarise the critical evidence relevant to this issue, and then address the issues raised by paras (a), (b) and (c) of the Ground, before turning to those raised by para (d).
In addition to Professor Sheridan's evidence, Dr Peter Bentivoglio, neurosurgeon, provided a medicolegal report to solicitors then acting for the appellant, addressing questions directed to establishing breach of duty by Dr Pope; his report was not critical of any aspect of Dr Pope's care.
Dr Ng, occupational physician, saw the appellant in February 2015 and referred him for an MRI of the lumbar spine. In a report dated 6 March 2015, he referred to "chronic discogenic lower back pain and radicular pain to his right leg over L4 and L5 dermatomes from a L4/5 disc protrusion since late 2013 …". He did not refer to any potential for a thoracic contribution. [12]
In March 2015, the appellant sought a further neurosurgical opinion, from Dr Timothy Steel, neurosurgeon. Dr Steel investigated potential lumbar pathology (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. He does not appear to have contemplated a thoracic source for the appellant's complaints, at least until Dr Simon, neurologist, recommended an investigation of the appellant's cervical and thoracic and spine in August 2015.
Only the appellant's expert Professor Davis expressed any criticism of Dr Pope's management of the appellant. [13] He 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 such as he thought appeared from the 23 October 2013 MRI scan in someone who had pain was no indication for lumbar surgery. [14] He accepted that, in cases of "extreme subtlety", an MRI scan might be susceptible to different interpretations by different neurosurgeons, but maintained that absent "gross" nerve root compression, there was no indication for surgery. [15] However, as the respondent points out, Professor Davis did not give evidence that a reasonable body of his peers would regard Dr Pope's management as falling short of acceptable standards of care, nor traverse Professor Sheridan's opinion that the manner in which Dr Pope acted was consistent with what would be accepted by professional peers as competent practice.
Moreover, germane to the s 5O defence, as has been noted Professor Sheridan maintained that the MRI scan showed sufficient nerve root compression or impingement to warrant surgery, and that competent professionals in Dr Pope's position would have adopted the same course in light of the presenting symptoms and clinical history. [18]
As to Ground 1(c), even if Professor Davis' opinion were wrongly rejected on the basis that it was affected by hindsight, that would not undermine the s 5O defence. That is because, absent contradiction of Professor Sheridan's opinion on the issue, the highest Professor Davis' opinion could reach would be to establish - as Professor Sheridan and Dr Pope accepted - that the question of whether or not to recommend surgery in the circumstances was one on which there would be range of views among neurosurgeons. As the trial judge explained:
"[297] The evidence of Professor Davis, which suggested a different clinical pathway for investigation, including investigating whether there was another explanation for the plaintiff's symptoms due to the possibility of a problem located at a higher level in the spine before undertaking lumbar surgery, was based on his personal approach."
There is no explicit challenge to his Honour's acceptance of Professor Sheridan's evidence in this respect. While Professor Davis, enjoying the benefit of hindsight, said that he would have suspected a thoracic cause (although not only Dr Pope, but every other medical professional who saw the appellant before August 2015, did not do so), he did not say that no reasonably competent neurosurgeon in Dr Pope's position could have proceeded as he did. That Professor Davis' personal approach was different does not deny that the evidence, in particular that of Professor Sheridan, established that the manner in which Dr Pope acted was widely accepted by peer professional opinion as competent professional practice.
McKenna was overturned by the High Court on the ground that there was no relevant duty of care; accordingly, no question arose under s 5O. [21] However, in Sparks v Hobson, [22] this Court by majority rejected a submission that McKenna was wrong in holding that it was necessary to demonstrate the existence of an extant "practice". Basten JA, while accepting that McKenna may well sufficiently describe many circumstances in which the defence is invoked, did not consider it to establish a general proposition, and if it did, would not have followed it. His Honour said: [23]
"[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.
[34] Accordingly, although the language used in McKenna may well sufficiently describe many circumstances in which s 5O is invoked, I would not understand it as a general proposition as to the constraints imposed by s 5O(1).
[35] If that understanding is too restrictive and it is necessary to go further, I would not follow McKenna. The decision in McKenna having been overturned in the High Court, the reasoning of the majority in this Court is no longer binding. …"
Macfarlan JA, restating the views his Honour had expressed in McKenna, reasoned from the use in s 5O of the past tense (in the words "at the relevant time … was widely accepted") that the relevant opinion must have been in existence and widely accepted, at the time of the conduct in question (emphasis added): [24]
"[211] Section 5 O uses the past tense ("at the relevant time … was widely accepted") to refer to the relevant peer professional opinion. Thus, the opinion about the manner in which the defendant acted must have existed, and been widely accepted, at the time the conduct occurred. It is not enough that experts called to give evidence consider that the conduct was reasonable and that it would have been so regarded by other professionals if they had been asked about it at the time of the conduct."
His Honour said that expert evidence that says no more than that the expert considers the defendant to have acted reasonably, and in a way that would be widely regarded as acceptable, is insufficient to establish the existence of a "practice" for the purpose of s 5O (emphasis in original): [25]
"[220] My comments concerning Dr Forrest's evidence on this topic are equally applicable to that of Dr Manasiev. Whilst Dr Manasiev gave reasons as to why he thought that the conduct was reasonable, he did not point to any particular practice. Expert evidence that says no more than that the expert considers the defendant to have acted reasonably, and in a way that would be widely regarded as acceptable, is insufficient to establish the existence of a "practice" for the purpose of s 5 O. Accordingly, as the primary judge held, s 5 O does not exempt Dr Sparks from liability for his negligence."
Simpson JA doubted the correctness of McKenna, but considered herself bound by the decision: [26]
"[332] I consider that I am obliged to accept McKenna (in this Court) as stating the prevailing construction of s 5O: Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 at [277]-[279]. But for that constraint, I would have considered that the language of s 5O makes it plain that "competent professional [here, medical] practice" is intended to denote "the practice of a profession [here, medicine]", and not a specific practice or method of providing the professional services in question. That construction is supported by the absence of the indefinite article in conjunction with "professional practice", and the use instead of the adjective "competent", which to my mind signifies professional practice in a general sense, rather than an identifiable, specific, and discrete aspect of the profession or method of providing the professional service.
[333] As construed in McKenna, s 5O can apply only in limited circumstances, where the defendant can, or seeks to, identify a discrete practice to which he or she conformed. It necessarily excludes unusual factual circumstances, such as occurred in McKenna, and such as occurred in the present case. It does not appear to me that s 5O was intended to have such limited application. However, as I have said, I consider myself constrained to follow and apply that decision."
It is in that state of precedent in this Court that the issue now falls for consideration by an enlarged bench.
Then, to clarify for more abundant caution that a court would be justified in not deferring to medical opinion if it was irrational, it proposed the addition of a proviso, "unless the court considers that the opinion was irrational'. [35] Accordingly, the ultimate recommendation was that: [36]
"In the Proposed Act, the test for determining the standard of care in cases in which a medical practitioner is alleged to have been negligent in providing treatment to a patient should be:
(a) 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."
Relevantly for present purposes, in elaborating the advantages of that recommendation, [37] the Panel explained (emphasis added):
[3.22] The recommended rule recognises, first, that there might be more than one opinion widely held by a significant number of respected practitioners in the field. It provides a defence for any medical practitioner whose treatment is supported by any such opinion, provided the court does not consider it irrational. It would not be for the court to adjudicate between the opinions.
Notably, the Panel's recommendation and reasoning did not utilise, or even refer to, the notion of an "accepted practice".
It is true that Parliament did not precisely enact that recommendation, but its substance is reflected in the statute, which relevantly provides: [38]
(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.
While the statute, unlike the recommendation, refers to "competent professional practice", that clarified the requisite content of the relevant opinion; it still required that the professional's "manner of acting" be measured against then current peer professional opinion as to whether it was "competent professional practice". It did not stipulate that the professional must have acted in accordance with an extant practice.
That was not a case where there was any extant particular practice, but one in which there were competing bodies of professional opinion as to whether the conduct of the consultants was, according to the standards of the time, competent. That, as I understand it, is what is contemplated by the reference in Bolam to acting "in accordance with a practice". Similarly, in Ratty v Haringey Health Authority, [45] the Court of Appeal, having endorsed as the relevant test whether the defendant had "taken a decision or adopted a course that no surgeon exercising the proper care and skill appropriate to his expertise and specialist qualifications would have taken or adopted", considered that the evidence of two responsible and respectable experts as to how they would have responded to the same circumstances as confronted the defendant engaged the Bolam test. Kennedy LJ said that it was important "once it was accepted that [the defendants' expert witnesses] represented a responsible and respectable body of colo-rectal opinion, to accept without qualification their [evidence] when evaluating the conduct of the … defendant".
More recently, in Boxell v Peninsula Health, [48] Keogh J adopted the construction which, unconstrained by authority, Simpson JA would have favoured in Sparks:
"[30] Section 59 of the Act was intended to introduce a modification of the Bolam principle [Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, 587], which was stated by Lord Scarman in Sidaway v Governors of Bethlehem Royal Hospital [[1985] AC 871] as follows:
'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 [Ibid 881].'
[31] There are three elements which a defendant must establish to rely on s 59(1). First, that the defendant is a professional. Usually this will not be contentious.
[32] Second, a standard of care, namely competent professional practice in the circumstances. Usually a defendant will call one or more professionals who practice in the field to establish a standard of competent professional practice. It is unlikely to be sufficient that the experts who give evidence themselves subscribe to the standard. The evidence must establish peer professional opinion, that a standard of care is widely accepted by a significant number of respected professionals in the field in Australia as competent professional practice in the circumstances. If established, peer professional opinion determines the standard of care which applies for the purposes of s 59(1) of the Act.
[33] Third, that the defendant acted in a manner which satisfied the standard of competent professional practice. This is a question of fact determined on all of the evidence.
[34] The text of s 59(1) does not speak of 'a practice'. A standard of competent professional practice in the circumstances is not limited to a specific practice, and may cover professional practice in a more general sense [Sparks 187 [332] (Simpson JA)]. However, it remains necessary for a defendant to establish a standard of care which was widely accepted in Australia at the time as competent professional practice responding to the particular circumstances in which the service was provided [Grinham 53 [190]-[191]]. In Grinham, J Forrest J referred to the problems of proof inherent in the application of s 59(1) [Ibid 52 [187]]. Where a defendant has responded to circumstances which involve a variety of factual considerations, or call for a series of subjective judgments, it may be difficult to prove a standard of response which was widely accepted at the time as competent professional practice by a significant number of respected professionals across Australia who do not themselves give evidence."
For the above reasons, and those given by Basten JA and Simpson JA in Sparks, s 5O does not in my opinion require proof of a specific pre-existing practice. It is engaged by evidence that, in the same circumstances, a substantial body of peer professional opinion would have considered the manner in which the defendant acted to be competent professional practice. Evidence that a substantial body of competent professional peers would in the same circumstances have acted in the same way will, at least generally speaking, have that effect.
Ipp Report at [3.11].
Ipp Report at [3.12]-[3.16].
Ipp Report at [3.17]-[3.20].
Ipp Report, Recommendation 3.
Ipp Report at [3.21]-[3.24].
Civil Liability Act 2002 (NSW), s 5O.
(1992) 175 CLR 479 at 484; [1992] HCA 58 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ).
[1985] AC 871; [1985] 1 All ER 643.
Above at [297].
McKenna at [161].
[1985] 1 All ER 635.
[1985] 1 All ER 635 at 638. Cited with approval in Belknap v Meakes (1989) 64 DLR (4th) 452 at 473-475 (BCCA); Ratty v Haringey Health Authority [1994] 5 Med LR 413 at 416 (CA); Dunne v National Maternity Hospital [1989] IR 91 at 109 (SC Ire); Kaban v Sett [1994] 1 WWR 476 at 479-80 (Man, QB), affd [1994] 10 WWR 620 (Man, CA); Heyman v Board of Management of Royal Perth Hospital (1995) 14 SR (WA) 14 at 17 (Jackson DCJ); Smit v Brisbane South Regional Health Authority [2002] QSC 312 at [68]-[69] (Muir J).
[1994] 5 Med LR 413 at 416 (Kennedy LJ; Balcombe and Evans LJJ agreeing).
Grinham v Tabro Meats Pty Ltd; Victorian WorkCover Authority v Murray [2012] VSC 491.
Grinham at [181].
Boxell v Peninsula Health [2019] VSC 830 at [33]-[34].