(e) failing to warn the plaintiff of complications with anatomical structures such as arteries, veins, nerves, hamstrings, muscles etc which could be stretched during the distraction procedure causing pain and restriction of movement in the leg and knee joint (paragraph 16(a)e).
102 The parties accepted that it is no longer necessary to consider an additional allegation of failure to warn in respect of the second osteotomy, in light of Dr Bellemore's admission of liability for the consequences of that procedure (T1271.38).
103 As to some of the risks referred to in the particulars, there is no suggestion that the risk in fact materialised (such as the risk of "above knee amputation in the event of complications" and the risk of "bone not forming"). Presumably the basis for those contentions is that, if such additional information had been given, a different choice would have been made (and the injuries thereby avoided). That is inconsistent with the approach to identifying the relevant risk identified by Gummow J in Rosenberg v Percival at [61] (set out above); see also Chappel v Hart [1998] HCA 55; 195 CLR 232 at [66]-[67] (also per Gummow J). A patient is entitled to make the choice whether to undergo particular treatment on the basis of relevant information and advice. However, the notion that the risk against which a doctor has a duty to warn is the risk of a wrong choice was explicitly rejected by Gummow J, as was the proposition that causation of the injury that did occur is established where the patient would have been deterred by a warning as to the possibility of an injury that did not: Rosenberg v Percival at [83].
104 In any event, although those allegations were left to stand on the pleadings, and maintained by Mr Kelly in his closing address (T1330), the case was not conducted on that basis. In particular, no evidence was adduced from Mr Harris as to what he would have done had he been warned of particular possibilities that did not eventuate. Those allegations can therefore safely be put to one side.
105 A separate complexity is that, as to some of the complications that in fact occurred (such as pin breakages) there was no expert evidence as to the nature of the risk or whether it ought to have been known (and therefore considered for inclusion in a warning) by an Ilizarov surgeon in 1996. The allegation was effectively put at the broad level of failure to give a "full and complete warning" of all risks.
106 The evidence reflected that approach. The evidence given by Mr Harris was (Exhibit O, statement dated 9 February 2009 at paragraph 26):
"If I had known that there was a significant risk of the complications that have in fact occurred, it is my belief that I would not have gone ahead with surgery."
107 Similar evidence was given in cross-examination by reference to "the problems that I have got now" (at T121.7). Mr Harris expanded further upon the reasons for that, referring to two operations he had as a child (unrelated to the two motor vehicle accidents) from which he still has problems (T124.12).
108 It is difficult to give any content to that evidence, since there is a substantial factual dispute between the parties as to what complications or problems "have in fact occurred" as a result of Dr Bellemore's treatment of Mr Harris.
109 The experts were asked to list all of the risks of the procedure, but there was no attempt made on behalf of the plaintiff to analyse that evidence by reference to the complications he alleges have in fact occurred. The proper approach was for the plaintiff to identify the relevant risks clearly in the pleadings and in the evidence, in accordance with the principles stated by Gummow J in Rosenberg v Percival. Regrettably, however, I do not think the failure to do so relieves me of that task.
110 The critical issue is whether the evidence identifies any risk inherent in the procedure (that should have been foreseen by Dr Bellemore: Rosenberg v Percival at [63] page 455) that did in fact materialise and as to which there was no warning. If so, it is necessary to consider whether that risk was material. It is against that analysis that questions 2 to 4 must be considered.
Question 2: "Was the plaintiff given any warnings about the risk of leg lengthening procedure prior to undergoing the surgery on 4 November 1996?"
111 Mr Harris stated that Dr Bellemore did not at any stage inform him of any risks or complications that may arise during the leg lengthening procedure. During cross-examination, he gave the following evidence:
"Q. Your evidence, I take it, is that at this consultation and indeed all the consultations prior to that first operation, there was not one single word said about any risk associated with the procedure; is that right?
A. There was a discussion with regard to the consent form and the risk during the third consultation. That's all.
Q. In terms of Dr Bellemore identifying for you specific risks of the procedure, you say, do you, that there was absolutely not one word said?
A. That's right."
112 Notwithstanding those answers, Mr Harris appeared to concede that there was some discussion with Dr Bellemore of the risk of pin site infection (T98.13), although he later asserted that he learned of that risk only from his discussions with the other Ilizarov patient to whom Dr Bellemore referred him (T711.20). He appeared to remember some discussion about soft tissue and the fact that "the rest of the leg grows" (T99.19) and some discussion of the need for physiotherapy. He also accepted that there was discussion regarding the possibility of a blood transfusion (T182.40).
113 Dr Bellemore gave evidence of a detailed conversation during the first consultation in which he says he informed Mr Harris of five categories of risk associated with the procedure.
114 In broad summary, the matters as to which Dr Bellemore said he provided information to Mr Harris were, first, the risk of infection occurring at some of the pin sites, which he described as a hundred percent chance. Secondly, he referred to a risk relating to muscles, described as the risk that the growth of the muscle may not be as rapid as the growth of the bone, which could result in contractures of the involved muscles and associated stiffness requiring physiotherapy. Thirdly, he described risks associated with nerve damage, where nerves may be injured during the surgery or during the distraction phase of the bone lengthening resulting in weakness or numbness of a transient or permanent nature. Fourthly, he described a risk of suffering a vascular injury, either due to direct trauma during surgery or during the distraction phase, resulting in impaired circulation. Finally, he referred to a risk of bone fracture if the Ilizarov frame is taken off too early, which he said had occurred in some patients of his in the past.
115 There is no contemporaneous record to corroborate Dr Bellemore's evidence on that issue. Dr Bellemore stated that it was not his invariable practice at that time to record details of discussions with patients or advice provided during consultations. He stated, however, that at that time he felt that leg lengthening procedures (including the Ilizarov technique) were amongst the most risky surgical procedures he undertook, having a high complication rate. For that reason, he said, it was his practice to take great care in setting out for a patient the various risks and complications which might be encountered.
116 Dr Bellemore also had a specific recollection of attempting to dissuade Mr Harris from proceeding with the bilateral lengthening and of advising him, in that context, that if he were to have both legs lengthened, he would need more than one year off work due to the physical nature of his employment as an engineer with BHP working on the factory floor. That aspect of the conversation is corroborated to some extent by a note in Dr Bellemore's handwriting, which in fact records an estimate of a total of twenty months to lengthen the right femur by eight centimetres and then the left femur by five centimetres. Dr Bellemore provided that note to Mr Harris during the course of their first consultation (statement of Mr Harris dated 5 February 2009, Exhibit O, paragraph 51).
117 Dr Bellemore stated further that he had "an explicit recollection" of specifically warning Mr Harris of the need to discuss the length of treatment with his employer to determine whether they would be prepared to give him the required amount of time off work. Dr Bellemore's recollection as to that aspect of the conversation is corroborated by a letter he wrote to BHP on Mr Harris' behalf outlining the proposed surgery. The letter stated Dr Bellemore's view that Mr Harris would be unfit for his normal duties for a minimum period of six months and possibly significantly longer if he had surgery to both limbs.
118 It was submitted on behalf of Mr Harris that Dr Bellemore's evidence as to the extensive warnings he said he gave should be rejected. Mr Kelly relied in that context on the submissions as to credit discussed above. He also noted the absence of any note or other contemporaneous record to corroborate Dr Bellemore's evidence on that issue, the fact that the evidence was denied by Mr Harris and the contention that the evidence was inherently improbable.
119 For the reasons already stated, I accept that it is appropriate to approach Dr Bellemore's evidence on this issue paying due heed to the demonstrated unreliability of the evidence he originally gave (with some confidence) in relation to the issue of conical washers. An additional consideration not specifically relied upon by Mr Kelly is the fact that, having regard to the passage of time between the events in question and the time when Dr Bellemore was called upon to provide a statement in the proceedings, it seems likely that his evidence on this issue is, to some extent, a reconstruction as to what he later believed or hoped he would have said, albeit based on his practice and experience.
120 Mr Kelly observed that there was a measure of coincidence between the matters as to which Dr Bellemore said he warned and the bad outcomes complained of by Mr Harris. No doubt, Dr Bellemore had those complaints in mind when he prepared his first statement, and I accept that is likely to have influenced his recollection in some way, especially since he was unaided by any contemporaneous note. It should be noted, however, that Dr Bellemore's first statement setting out the warnings he claims he gave was prepared before Mr Harris had made any allegation against him of failure to warn.
121 To a lawyer's way of thinking, it is extraordinary that Dr Bellemore did not have a practice in 1996 of recording or noting such discussions or a template consent form setting out the risks in writing. I do not, however, accept that the evidence that Dr Bellemore gave on that issue is to be disbelieved on that account, or that it was otherwise inherently improbable, as submitted by Mr Kelly. Mr Kelly relied in particular on the fact that two videos shown to Mr Harris describing the Ilizarov procedure gave "no hint" of any such dangers or risks as Dr Bellemore claims to have warned of. In my view, however, the content of any warnings Dr Bellemore was accustomed to giving is more likely to have been informed by his own education and surgical experience rather than by the content of the promotional videos produced by the marketers of Ilizarov frames. I do not accept that Dr Bellemore's evidence on that issue is inherently improbable on account of its content.