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[2011] NSWCA 196
Court of Appeal (NSW)
2011-04-13
Beazley JA, McColl JA, Macfarlan JA, McCallum J, Coll JA
Original judgment source is linked above.
Judgment 1BEAZLEY JA : I agree with Macfarlan JA. 2McCOLL JA : I agree with Macfarlan JA's reasons and the orders his Honour proposes. 3MACFARLAN JA : In 1979 the appellant, Mr Paul Harris, injured his right leg in a motor bike accident. He was then aged about 12. He suffered a further injury to that leg when he was involved in a motor vehicle accident in 1981. As a result of these accidents he underwent surgery to his legs, including a procedure designed to shorten his left leg to render his legs of equal length. However he was left with a right leg that was approximately three centimetres shorter than his left leg and his overall height was reduced, leaving him approximately ten centimetres shorter than his twin brother. 4On 9 August 1996 the appellant consulted the respondent, Dr Michael Bellemore, an orthopaedic surgeon specialising in the use of the Ilizarov technique, with a view to not only eliminating the discrepancy between the length of his legs but having both of his legs lengthened to increase his height so that it equalled that of his twin brother. 5The primary judge described the Ilizarov technique as follows: "The Ilizarov technique of limb lengthening involves a surgical procedure during which a large steel frame is fitted externally around the limb. Internally, the frame is fixed to the bone with steel pins. The surgeon then performs an osteotomy (dissection of the bone). The frame is kept on the limb for a period of some months, during which the surgical fracture is gradually pulled apart by daily adjustments to the frame. The process of increasing the distance between the parts of the bone is called distraction. As the fracture is distracted, new bone forms to fill the gap, resulting in a lengthened limb" (Judgment [3]). 6On 4 November 1996 the respondent undertook an osteotomy of the appellant's right femur and fixed an Ilizarov frame to his right leg. The respondent intended to take similar steps with respect to the appellant's left leg at a later time, as it is not practicable to undertake the procedure in respect of both legs at the same time. On 10 March 1997 the respondent undertook a further operation on the appellant's right leg. On this occasion he inserted two half pins and a wire. 7The respondent's notes of two subsequent consultations recorded that the appellant had procurvatum and varus deformities in his right leg. As the primary judge noted, "[a] varus deformity is a variation from the normal alignment of the limbs as viewed from front to back, such that the lower limb is at an angle (like a pendulum) instead of being straight" (Judgment [6]). A procurvatum deformity of the femur is a bowing of the bone from the front to the back of the body, that is, in the antereo-posterior or sagittal plane (see Professor Saleh's Report of 29 January 2009 at [17(a)]). 8On 5 May 1997 the respondent performed a further osteotomy on the appellant's right femur (referred to in the appeal as the "second osteotomy") mainly, if not wholly, for the purpose of correcting the varus deformity. In doing so he cut the appellant's femoral artery, with serious consequences. A further consequence of the second osteotomy was that following the surgery the appellant's femur did not align properly at the osteotomy site, resulting in a step in the bone at that point. 9By a fourth operation, undertaken on 28 July 1997, the respondent removed the Ilizarov frame that was fixed to the appellant's right femur. 10Early in 1998 the respondent ceased treating the appellant, who later in 1998 travelled to Russia to have leg lengthening surgery performed on his left femur. 11On 3 November 1999 the appellant commenced the present proceedings against the respondent claiming damages for negligence. The appellant's Statement of Claim was subsequently amended on a number of occasions. In its final form the Statement of Claim alleged that the respondent breached his professional duties to the appellant in a number of respects which included advising the appellant that he was a suitable candidate for the leg lengthening treatment, failing to give the appellant appropriate warnings concerning the risk of the treatment and committing errors in relation to the treatment itself. 12The appellant alleged that the consequences of the respondent's negligence included continuing pain, discomfort and disability in his right leg and an incapacitating psychiatric disability. 13Following a hearing of approximately six weeks in length that took place in the period February to July 2009, McCallum J, sitting in the Common Law Division of the Court, found that the respondent had in some respects been negligent and awarded the appellant damages against him ( Harris v Bellemore [2010] NSWSC 176). 14By the present appeal the appellant contends that the judgment in his favour was inadequate as a result of the primary judge erring in: (a) Concluding that the appellant had not pleaded a claim for damages relating to his procurvatum deformity, with the result that the appellant was not entitled to damages related to that deformity, and finding that in any event the appellant's procurvatum deformity did "not appear to have any functional significance for [the appellant]" (Judgment [267]). (b) Rejecting the appellant's tender of a report dated 25 May 2009 of Mr Simonis, an orthopaedic surgeon, concerning the appellant's current condition; and (c) Rejecting the appellant's claim for damages based upon his alleged psychiatric condition. 15I shall consider these matters in turn.
THE PROCURVATUM ISSUE 16To deal with this issue it is necessary to refer to the following evidence adduced, and events that occurred, in the course of the trial.
The appellant's opening 17In his opening Mr T Kelly, solicitor, who appeared with Mr G Watson, solicitor, for the appellant, referred to the appellant having a procurvatum deformity in his right leg, caused by the lengthening procedure (Transcript p 15). He said that the procurvatum could have been prevented by the use of hinges in the course of the distraction process (p 21).
The appellant's evidence 18The appellant gave evidence that problems that he had as a result of the respondent's treatment included a "[d]eformed right lower femur". He said that "[t]his results in my right leg perpetually dragging behind my left leg" (Statement dated 5 February 2009 at [173]).
The respondent's evidence 19The respondent said that upon his initial examination of the appellant he observed "a mild varus deformity of the right knee" (Statement dated 12 February 2009 at [29]). He did not suggest that the appellant had a procurvatum deformity at that stage. The respondent said that prior to the second osteotomy of 5 May 1997 he observed that the appellant had a varus deformity in his right leg, together with "slight anterior bowing" of the right femur (that is, a procurvatum deformity) (Statement dated 12 February 2009 at [95] - [96]) and that his main concern in performing the second osteotomy was to correct the varus deformity but he may also have intended to address the procurvatum deformity (Transcript p 355). 20The respondent accepted in cross-examination that "both the varus and the procurvatum could have been dealt with by the use of hinges on the frame", that "the use of hinges would have been one method by which both the varus and the procurvatum could have been corrected" and that the "use of hinges is definitely a recogni[s]ed method of correcting angularity deformity, whether it be varus or procurvatum or both" (pp 355 - 6). He also accepted that the development of procurvatum commonly occurred in femoral lengthenings and "to that extent" the appellant's development of procurvatum in the leg lengthening procedure was foreseeable (p 366). He agreed that the use of conical washers or hinges were methods by which procurvatum could be corrected but did not accept that it was "substandard practice" not to use either of them (p 367).
Professor Saleh's evidence 21The appellant adduced evidence from Professor Saleh, an expert in Ilizarov treatment resident in the United Kingdom. Professor Saleh did not at any stage examine the appellant. The views that he expressed in relation to the respondent's treatment of the appellant were based upon x-rays and other documentary material. 22Based upon x-rays taken shortly prior to the second osteotomy in May 1997, Professor Saleh in his report of 25 April 2005 said that the appellant had a "sagittal plane deformity with posterior angulation of 20 [degrees]". This was a reference to a procurvatum deformity. Professor Saleh indicated that it was important to correct this (p 23). 23In his report of 26 January 2009 Professor Saleh said that an x-ray of 9 May 1997 showed that the appellant's procurvatum deformity had "distinctly improved" following the second osteotomy. He opined that "had a frame been designed with hinges both varus and procurvatum could have been corrected during the period of distraction without the need for a further osteotomy", that the use of hinges "should have taken place" and that it was "substandard practice not to have used hinges" (Report pp 9 - 10).
Mr Simonis' evidence 24The appellant also called evidence from Mr Simonis, an Ilizarov surgeon resident in the United Kingdom. He did not examine the appellant until May 2009. 25Based upon the material with which he was provided, Mr Simonis said the following in his report dated 29 December 2008: "Mr Harris' thigh muscles became under tension as the length of bone increased, pulling the distal femur and knee into varus and procurvatum. This complication should have been foreseen by a surgeon experienced in lengthening adult legs. At the [very least] they should have picked up the angular deformity earlier, and corrected it by altering the design of the frame" (at [11.4]).
The respondent's admissions 26In a statement forwarded to the appellant on 2 April 2009, the respondent accepted that he did not use either conical washers or hinges on the frame that he attached to the appellant's right leg. The respondent had previously denied this to be the case, asserting that he had applied conical washers to the frame. 27By letter of 7 April 2009 the respondent further admitted that: (a) "the failure to use conical washers or hinges on the Ilizarov frame fitted to the [appellant] constituted a breach of his duty of care; and (b) as a result of this breach of duty the second osteotomy on 5 May 1997 was required" (Exhibit 29). 28In response the appellant's solicitors sought further admissions, including that the respondent was liable to the appellant for the effects upon the appellant of the second osteotomy of 5 May 1997. They asserted that these effects included: (a) "the damage done to his femoral artery in that operation; and (b) the posterior translation in the [appellant's] right femur" (Letter of 9 April 2009, Exhibit AP). 29The appellant's solicitors said that unless these further admissions were forthcoming, the appellant would "be obliged to proceed with the remainder of his claims in negligence" (Exhibit AP). The reference to "the posterior translation" was to a disconformity or "step" in the bone at the site of the osteotomy (that is, where the bone had been severed) and was not a reference to procurvatum. There was thus no reference to procurvatum in the letter. On 14 April 2009 the respondent provided some, but not all, of the admissions sought. The respondent admitted that as a result of the second osteotomy, the appellant suffered the effects set out in [28] (a) and (b) above (Blue Appeal Book p 978). 30By separate letter of 14 April 2009 the respondent asserted that, as a result of the admissions that the respondent had made, a number of the questions that the parties had proposed to have the experts on liability address in a forthcoming concurrent evidence session "were no longer relevant". The questions that they asserted should be deleted included the following: "35. Had such hinges been fitted either at the time of the initial surgery in November 1996 or subsequently prior to any planned correction of the varus/procurvatum would they on the probabilities have corrected the [appellant's] varus and procurvatum conditions?"(Blue Appeal Book p 986). 31An assumption which appears to have been implicit in the view that question 35 should be deleted was that the appellant's claim related only to the consequences of the second osteotomy and did not extend to any continuing disabilities (such as procurvatum) which may have resulted from the distraction process (and in particular the failure to use hinges in the course of that process), rather than the second osteotomy.
Experts on liability - concurrent evidence 32On 26 May 2009 evidence concerning liability was taken concurrently from five medical experts. The experts who gave presently relevant evidence were Professor Saleh, Mr Simonis and orthopaedic surgeons called by the respondent, Dr Kevin Tetsworth and Dr Ian Torode. Professor Saleh was in the United Kingdom at that time and participated in the session by way of video link. 33Professor Saleh said that the expression "flexion deformity" encompassed three possible components: "posterior angulation" (that is, procurvatum), "contracture in the knee joint" and "posterior translation" (that is, a step at the osteotomy site) (p 1067). He said that the appellant had an angulation deformity of approximately 15 to 20 degrees (Transcript p 1067). Although it is difficult to reconcile with other evidence before the primary judge (such as that of Mr Kossmann referred to at [47] below), it appears that by this Professor Saleh was referring to the combined effect of procurvatum and "contracture in the knee joint itself", as he later said that the "bony angulation" was eight degrees and the "contracture within the knee" was 10 degrees, making "a total of 18 degrees" (Transcript p 1067, 1073.46; compare p 1075.35). He said that the effect of the angulation deformity was that "there may be as much as 12 [centimetres] of translation of the centre of the ankle with respect to the centre of the knee" (p 1075). He said that this was "not trivial" (p 1070). He gave his opinions on the basis that the appellant was not able to straighten his knee (p 1070). As I noted above, Professor Saleh had not examined the appellant. 34Mr Simonis expressed the view that the "bony angular deformity" was 20 degrees and that that was not an angle that he "would accept" (p 1071). 35The following evidence was given by Professor Saleh and Dr Tetsworth: "WITNESS SALEH: ... The situation as I see it is that posterior angulation deformities do occur in limb lengthening. Now it is not an ideal situation but if the knee is elastic enough, to allow some stretch of the posterior capsule so that the ankle lines up in the [sagittal plane?] through the middle of the knee and through the hip then the patient will have normal biomechanical balance. If he has a residual deformity where the ankle is behind the knee then there will have to be a continuing muscle [movement?] just simply to [remain?] standing. So, I feel that this is a really important issue and having not examined the patient, I am not in a position to say that this is the case, but what I would like to emphasise is that it is a significant factor in his quality of life, not a trivial event as some experts have suggested. HER HONOUR: All right. Did you want to respond to that Dr Tetsworth? WITNESS TETSWORTH: Yes. I am not saying at all that it would be trivial. If that is true. If there is 12cm of posterior displacement that would be a very significant deformity and I would agree would cause early fatiguing of his quadriceps, uses muscles more to maintain standing and during single leg phase of gait et cetera, so I would agree that- WITNESS SALEH: How much would you accept, sorry, beg your pardon your Honour, how much would you accept? How much posterior translation would you think not affect him physiologically? WITNESS TETSWORTH: Of the ankle? Relative to the- WITNESS SALEH: Knee. WITNESS TETSWORTH: Very little. Several centimetres at most. WITNESS SALEH: Very little, sorry two to three centimetres? WITNESS TETSWORTH: Yes. WITNESS SALEH: Thank you. WITNESS TETSWORTH: At most. None of us except for Mr Simonis have had an opportunity to examine the patient so we really don't know. My point was not that that would be trivial, just that 6 - 7 mm of posterior translation at the site of his osteotomy in the surgery that is done would be contributing only about five percent, of that total deformity, if it was 12cm. WITNESS SALEH: Yeah. WITNESS TETSWORTH: But I would agree it would be a significant deformity [if] in fact that is present" (pp 1077 - 8).
Experts on liability - further concurrent evidence 36Later on 26 May 2009 the liability experts who had previously given concurrent evidence, other than Professor Saleh, gave further concurrent evidence. 37The experts were asked to address three questions as follows: "(1) Assuming that the plaintiff suffers from a flexion deformity due to a procurvatum or flexion angulation, is this a condition which would have been avoided by the use of hinges in the frame? (2) If so, would these have been the same hinges as would have been used to correct the varus deformity? (3) Should a reasonably competent Ilizarov surgeon practising in 1996, and presented with Mr Harris have included these additional hinges into the frame worn by Mr Harris?" (Judgment on admissibility of evidence, 28 May 2009 [3] - [5]). 38In light of an objection by Mr Kelly to questions (2) and (3), the experts' answers to those questions were taken on the voir dire. 39The experts answered the first question in the affirmative subject to the word "would" in the question being treated as "could" (Transcript p 1097). 40The experts' answer to the second question was that, strictly, the hinges were different but "it is possible to rearrange the hinges to simultaneously correct both deformities" (p 1097). 41In response to the third question the experts said that if a significant deformity: "... was recognised early, one could perhaps have adjusted hinges to match. If it was recognised, or occurred later when considerable bone was formed, we are all in agreement that the only way to correct such a deformity would have been a double osteotomy of the femur, which none of us in this group were willing to push as a line of treatment" (p 1099). They added: "So it bore down to what would we have done had we recognised it. One would be, if it was early in the procedure, to add hinges to try and get a slow correction of the deformity, recognising that might not occur; or B, accept the deformity and wait until some later date to correct it with an osteotomy, and perhaps internal fixation at the appropriate site. Because the site of the deformity is well proximal to the site of the second osteotomy that was performed to correct the varus" (p 1099). 42The experts then addressed a question concerning the contribution of different events to disabilities that were listed in the question (see Transcript p 1100 - 1). 43In relation to the disability described as "flexion angulation of the [appellant's] right leg", the experts advised as follows: "Your Honour, we tried to get as precise a terminology for these two questions as possible and the orthopaedic surgeons would call the flexion angulation of the [appellant's] right leg, the procurvated deformity of the femur. Using the terminology in that manner, there is previous evidence of a bony injury and growth plate disturbance. So we cannot say the bone was normal in the first instance, but we feel that was a minor deformity in terms of the procurvated deformity and called that 10 percent or less. Approximately 70 percent of the procurvated deformity we believe is due to the lengthening procedure per se and the remainder due to the subsequent distal femoral osteotomy" (p 1103). 44In relation to the flexion contracture of the appellant's right knee the experts said: "WITNESS TORODE: Your Honour, once again there is an issue of terminology. We are in agreement that there is no evidence of a flexion contracture of the right knee. If we stick strictly to the wording of that question, the answer therefore is; nil. If that terminology in the court's mind, as such, indicates a range of motion, that is a separate issue and we did discuss that. ... WITNESS SIMONIS: All these terms are extremely confusing to orthopaedic surgeons, so I think this is a very good way of describing lack of flexion of the knee, and which has been described in the past as flexion distraction. I think we are describing the same thing and calling it a different thing to try to elucidate it and I was very happy with the way it was described. WITNESS TORODE: In other words, your Honour, a lack of flexion is an inability in the patient to bend the knee, as [opposed?] to having the knee permanently bent. In that regard there was a pre-existing deformity in terms of range of motion of the knee joint and we felt that approximately 15 percent of the loss of motion was pre-existing. Clearly, Mr Harris, now has a more restricted range of motion than that and we felt that approximately 70 percent of that was due to tightness, deformity, et cetera, arising from the lengthening procedure" (pp 1103 - 4). 45By a judgment of 28 May 2009 the primary judge admitted the evidence given in answer to questions (1), (2) and (3) to which I have referred at [37] above. The appellant had submitted that the respondent's contention in his solicitors' letter dated 14 April 2009 (see [30] above) that "question 35 was 'no longer relevant', indicated that the admissions as to liability [made by letter of 7 April 2009] extended to an admission of negligence in failing to use hinges to correct the procurvatum referred to in new question 1 directed to the experts on liability ... " (Judgment [8]). However her Honour accepted the respondent's contention that the further evidence was relevant to an allegation that had been included in the Statement of Claim by an amended version of the Statement of Claim filed on 1 May 2009 (see [7B] quoted in [64] below). Notwithstanding that that further allegation was admitted in the respondent's subsequent Defence, the evidence in response to questions (2) and (3) was, her Honour said, admissible on the basis that the evidence "may well be relevant to qualify [the experts'] evidence in respect of question 1" (Judgment [11]).
Mr Kossmann's evidence: appellant's current condition 46The appellant tendered a report dated 16 April 2009 of Mr Thomas Kossmann, a general orthopaedic surgeon, concerning the appellant's current condition. 47Mr Kossmann found that there was "angular deformity of the [right leg] distal femur of about 20 degrees" and diagnosed "significant impaired knee mobility right side with angular deformity, posterior translation and possible rotational deformity on the distal right femur" (p 5). 48He went on to say: "I share the opinion of Professor Michael Saleh in respect to the flexion deformity causing postural change or arthritis, overactivity in the quadriceps on standing and fatigue in walking. As described in the body of my report Mr Harris is forced to make compensatory movements which will cause stress to different parts of the body in particular on the left leg as well as his spine ..." (p 6). 49In a subsequent report of 28 April 2009, Mr Kossmann said the following: "I estimate that a flexion deformity occurred in part during the initial distraction phase from November 1996 to May 1997, which was aggravated after the second osteotomy. I estimate a share of 40% during the procedures between November 1996 and before the second osteotomy and 60% after the second osteotomy in May 1997 for the causation of the flexion deformity" (p 3). 50In that report Mr Kossman also said that he could not see that the appellant's "pre-existing condition had anything to do with his present flexion deformity in the right leg" and that the appellant requires "[a] walking stick to balance flexion deformities while walking and the effects of the claudicatio [limping] whilst walking. Since he can only bend his knee 90 [degrees] he is severely disabled for example when going up or down steps" (p 4).
Dr Stephen's evidence: appellant's current condition 51The respondent tendered a report dated 19 February 2009 of Dr John Stephen, a general orthopaedic surgeon, concerning the appellant's current condition. 52Dr Stephen said that "[t]here was a hint of recurvatum of the right knee. I could not be sure of this. There was mild anterio-posterior and mild collateral laxity". He also said that there was: " ... no muscle wasting above or below the knee, and [the appellant had] a knee that moved through a good functional range of from 0 - 95 [degrees] and has mild associated instability ... At present I can find no clinical evidence of degenerative change in the right knee particularly in respect of an effusion or muscle wasting" (p 6). Later in the report he said that "[t]here is probably no increase in the mild anterio-posterior and collateral ligamentous laxity that had been present previously" and concluded that the appellant's "functional limitations are largely self-imposed" (pp 7 - 8).
Joint current condition report: Dr Stephen and Mr Kossmann 53The following was recorded in relation to procurvatum: "There was ... disagreement concerning the presence of residual pro-curvatum. Dr Kossmann measured an angulation of 20 . In the opinion of Dr Kossmann the posterior displacement facilitated the pro-curvatum deformity. Dr Stephen considered there was no significant angulation. Both Dr Stephen and Dr Kossmann agreed that the knee came out fully straight which meant that there was full extension of the knee. Dr Stephen pointed out that functionally there was full extension and asked Dr Kossmann that if there were full extension, did any pro-curvatum matter? Dr Kossmann stated that though there was full knee extension he was concerned about residual procurvatum at the osteotomy site. He said that the laxity of the knee ligaments may play a role to that exten[t?] that it allows Mr Harris to extend his knee fully in form of a hyperextension . He said a CT scan or long standing X-rays would be helpful here. No agreement was reached in the mater of procurvatum" (Blue Appeal Book p 1057; emphasis added).
Current condition: concurrent evidence of Dr Stephen and Mr Kossman 54Mr Kossman gave evidence that there was angulation (that is, residual procurvatum) of 19 or 20 degrees in the appellant's right femur. After measuring it on an x-ray, Dr Stephen resiled from his previous view that there was no significant angulation and agreed that there was "angulation of just under 20 degrees" (Transcript p 1179). 55Dr Stephen expressed the view that if, as he considered to be the case, the appellant could straighten his knee, there would be "no particular stress" involved, despite the appellant's procurvatum (p 1180). 56Mr Kossmann agreed that the appellant could straighten his right knee but said: "However, under the consideration of the procurvatum, it is my opinion that the patient actually is doing some kind of hyper-flexion in the knee, which means, despite having a procurvatum, he is able, with the hyper-extension, he is able actually to go over this disability. ... he is able to bring [his right] leg forward and actually mimic the 30 degrees extension. What he has actually ... is the angulation and hyper-extension like this, (Indicated)" (pp 1180 - 1).
The appellant's written submissions 57In written submissions dated 26 June 2009, the appellant submitted that the effect of Professor Saleh's evidence was that the appellant had a significant flexion deformity and that Dr Tetsworth's evidence was that if a deformity existed of the magnitude described by Professor Saleh, that "would be a very significant deformity" (Black Appeal Book p 1266).
The respondent's written submissions 58The respondent said in his written submissions that there was "no doubt" that the appellant had "a procurvatum angulation of approximately 20 degrees in the right femur" (Black Appeal Book p 1312) but that the extent to which that caused any disability was "far from clear". He went on to say: "Neither Dr Kossmann nor Dr Stephen clearly articulated any physical disability caused by this angulation. There was suggestion in the evidence given by the experts on liability (see for example T1077.7-47) that a procurvatum may lead to the ankle being positioned behind the knee which itself might have some impact upon the plaintiff. However, as is noted above the physical examination conducted by Dr Stephen and Dr Kossmann does not seem to have identified this as a problem suffered by the plaintiff. That said, it must be accepted that the plaintiff claims that he is disabled in this way (para 173 of Harris 1). Ultimately, it may be unnecessary to determine this issue as it is not alleged that ... Dr Bellemore failed to identify or correct any procurvatum deformity, an issue which is discussed further below" (at [101]). 59Later the respondent submitted that "[n]o particular of negligence properly alleges a failure on the part of Dr Bellemore to detect or respond appropriately to a procurvatum deformity" and rejected the proposition that the admissions made by the respondent covered responsibility for the procurvatum deformity (at [117]). 60The respondent submitted that in any event the evidence was only that the procurvatum deformity " could have been avoided by the use of hinges" (original emphasis) and that the "agreed position of the joint experts on liability (at T 1099.4-30) [see [41] above] makes abundantly clear that a reasonably competent Ilizarov surgeon practising in 1996 would not necessarily have put these additional hinges on the frame worn by the [appellant]" (at [118]).
The respondent's oral submissions 61The respondent submitted that the appellant's procurvatum claim was not covered by the respondent's admissions and that the appellant had not put any submission "fairly or squarely" that, if the claim was not covered by those admissions, the evidence supported the claim (Transcript p 1291).
The appellant's oral submissions 62During the course of the appellant's oral submissions the primary judge asked Mr Kelly whether there was any allegation in the pleadings that the respondent's failure to use hinges "caused the damage you allege flows from the failure to correct the procurvatum" (p 1298). Her Honour also asked "what is the difference between what he is left with and what the position was before it is alleged Dr Bellemore failed to treat it by affixing hinges?", to which Mr Kelly responded that the appellant "never had a procurvatum when this treatment was commenced". Mr Kelly then referred her Honour to paragraphs 7A - D of the Second Further Amended Statement of Claim (pp 1298 - 9).
Second Further Amended Statement of Claim 63This version of the Statement of Claim (the "2 FASC") was filed on 1 May 2009 pursuant to leave granted by the primary judge in a judgment of 28 April 2009, to which I refer at [68] - [70] below. Although filed after the first section of the hearing was completed, it was therefore filed well prior to her Honour hearing the concurrent evidence of the experts on liability and on the appellant's current condition, this evidence having commenced on 26 May 2009. 64The 2 FASC was the first version of the Statement of Claim to include the following paragraphs: "7A. The defendant failed then [at the time of the 4 November 1996 surgery] or at any time thereafter to fit hinges or conical washers to the said Ilizarov frame. 7B. Had such hinges been so fitted the plaintiff's varus and procurvatum conditions would have been corrected without the need for further surgery. 7C. That procurvatum condition was a consequence of the limb lengthening surgery that the defendant carried out. 7D. That consequence was foreseeable by the defendant. 7E. The failure by the defendant to fit either hinges or conical washers to the said Ilizarov frame constituted a breach of the defendant's duty of care to the plaintiff. 7F. As a result of the failures referred to in paragraph 7A above the plaintiff in the following surgery on 5 May 1997 (referred to in paragraphs 23 and following poste) suffered: (a) damage to his femoral artery; and (b) a posterior translation in his right femur. 7G. As a result of the failures referred to in paragraph 7A above the defendant is liable to the plaintiff in negligence for the injuries detailed in (a) and (b) of 7F above". 65Paragraphs retained from earlier versions of the Statement of Claim included the following: "29. Following the abovementioned treatment [being the whole of the treatment since the first osteotomy on 4 November 1996] provided by the defendant and as a consequence of that treatment the plaintiff: (a) has pain, discomfort and disability in his right leg; (b) has developed an incapacitating psychiatric disability. ... 31. The aforesaid medical advice, treatment and post-operative care provided by the defendant to the plaintiff was provided and carried out negligently. 32. PARTICULARS OF NEGLIGENCE OF THE DEFENDANT ... 36. By reason of the matters referred to in paragraphs 32 ... above the plaintiff has suffered injury loss and damage. ... 41. By reason of the negligence, failure to advise and warn the plaintiff, trespass, and breaches of contract by the defendant the plaintiff has suffered and will continue to suffer serious injury loss and damage" (original emphasis). 66The particulars of negligence contained in paragraph 32 of the 2 FASC included the following: " 9(a) Failing to fit hinges to the Ilizarov frame, initially and/or throughout the course of the 1996/97 distraction process. 9(a)(i) Failing to fit conical washers to the Ilizarov frame, initially and/or throughout the course of the 1996/97 distraction process. (This particular is put in the alternative. The evidence to be called on behalf of the plaintiff will suggest that conical washers would have been incapable of rectifying the plaintiff's varus and/or procurvatum conditions, but that the use of hinges would have corrected those conditions. Thus the 5 May 1997 surgery and its attendant risks and its outcomes of a cut femoral artery and a posterior displacement step in the right femur would have been avoided. The defendant did not at any stage fit either hinges or conical washers to the plaintiff's Ilizarov frame.) 67The 2 FASC incorporated (by [43]), as particulars of disabilities, particulars dated 6 January 2009. Those particulars included the following: "(aa) The plaintiff suffers from a significant deformity of the right femur causing discomfort to his right leg. (bb) The plaintiff suffers from a fixed flexion deformity of his right femur, which results in him limping, and this abnormal gait will cause arthritis in several involved joints" (Red Appeal Book p 27). These particulars of disabilities had also been included in the previous version of the appellant's particulars of disabilities filed in April 2006.
Judgment granting leave to amend Statement of Claim 68After the hearing of the proceedings was adjourned part-heard on 13 March 2009, the appellant had sought leave to amend the then current version of his Statement of Claim (the Further Amended Statement of Claim). Argument took place on 17 April 2009. By judgment of 28 April 2009 the primary judge granted leave to file what became the Second Further Amended Statement of Claim (to the terms of which I refer at [64] - [67] above), which was the final form of the appellant's Statement of Claim. 69The primary judge noted that one of the purposes of the then proposed amendment was to "consolidate the pleadings, which ... do not entirely reflect the case that has been put on behalf of the [appellant] at trial" (p 1) and that by the proposed amendment the appellant "seeks to rely on additional particulars of negligence but also seeks to add substantially to the narrative of the facts and the pleading of certain aspects of his case on causation" (p 2). Her Honour referred to the admissions that had been made as "limited" and "carefully confined" and that counsel for the respondent indicated that "the [respondent] was reluctant to accept a general broadening up of the statement of claim when it was not clear why that was necessary or what it adds to the [appellant's] claim" (pp 3 - 4). 70Her Honour noted the respondent's complaint that the proposed new paragraphs 7B, 7C and 7D, in their reference to procurvatum, went beyond the admissions contained in the letter dated 14 April 2009. Her Honour took the view that that was "not a sufficient reason to disallow those amendments" (pp 6 - 7). As her Honour could see no prejudice to the respondent in requiring him to plead to those additional allegations, they were allowed.
Consideration of final judgment dated 29 March 2010 - significance of procurvatum 71In her final judgment the primary judge expressed her conclusion as to liability as follows: "I am not satisfied that Dr Bellemore breached his duty of care as alleged by Mr Harris except in respect of the failure to warn of the risk of loss of motion in the knee and the admitted failure to fit hinges or conical washers to the Ilizarov frame so as to enable the varus deformity to be corrected during the period of distraction. As to the failure to warn, I am satisfied that Mr Harris would have proceeded to have the surgery in any event, even if properly warned" (Judgment [176]). 72The primary judge then turned to consider the disabilities "alleged to have resulted from the failure to fit hinges or conical washers to the frame" including the appellant's "flexion deformity condition in the right leg" (Judgment [182]). 73Having referred to Professor Saleh's evidence (see [33] above) and to the fact that the orthopaedic experts on current condition agreed that the appellant has procurvatum in his right femur of approximately 20 degrees (Judgment [231] - [234]), her Honour referred to the evidence given concurrently by the orthopaedic experts on liability, quoted in [43] above (Judgment [239]). Her Honour then said: "240 I understood the experts' evidence on that issue to mean that they would attribute approximately 70% of any flexion deformity (not including contracture in the knee joint itself) to the residual procurvatum (the bow in the bone). They attribute the procurvatum, in turn, to the leg lengthening process itself, and that is admitted by Dr Bellemore on the pleadings. Implicitly, they attribute the remaining 20% of any flexion deformity to the second osteotomy, presumably due to the posterior displacement of the right femur that occurred during that operation. 241 On that basis, it may be accepted that 20% of any flexion deformity is due to the posterior displacement and so falls within the class of consequences for which Dr Bellemore admits liability. The question is, 20% of what? In light of the agreement between the current condition experts that Mr Harris can fully extend his knee, I am not satisfied that the posterior displacement has any functional significance. 242 Separately, it was contended on behalf of Mr Harris that liability for the residual procurvatum (responsible for 70% of the assumed flexion deformity) flows from Dr Bellemore's admission of breach of duty in failing to use hinges to correct the varus deformity. In light of the evidence summarised above, it is doubtful whether the procurvatum has any functional significance either, although it appears to be a matter that is upsetting Mr Harris. In any event, that issue is considered separately below." 74Her Honour's reference to "the posterior displacement" was to the "step in the femur ... where the second osteotomy did not reunite in perfect alignment" (Judgment [233]). This is one of the three components of a "flexion deformity" as described by Professor Saleh (Judgment [232] and see [33] above). Procurvatum, that is, the bowing in the femur, is another of those components. The appellant's challenges to her Honour's judgment relate only to procurvatum. Accordingly what her Honour said about posterior displacement stands. 75In Judgment [242] (see [73] above) her Honour said that "[i]n light of the evidence summarised above, it is doubtful whether the procurvatum has any functional significance either ... In any event, that issue is considered separately below " (emphasis added) but in the later section of the judgment under the heading "THE PROCURVATUM" her Honour said "[ f]or the reasons already explained , the procurvatum does not appear to have any functional significance for Mr Harris" (Judgment [267], emphasis added). Her Honour went on to deal with a pleading question to which I will turn shortly. 76The primary judge thus did not make clear why she thought that the procurvatum did not have any functional significance unless her Honour thought that that conclusion followed from what she had said as follows concerning the posterior displacement: "236 Whether or not that was in fact Dr Kossmann's original assessment, Dr Kossmann later agreed (after conferring with the defendant's orthopaedic expert on current condition, Dr Stephen) that Mr Harris can fully extend his knee. On that basis, he accepted that the posterior displacement itself is of no significance (joint report, Exhibit 40 at pages 2 to 3; see also evidence of Mr Simonis at T1071.16; evidence of Dr Tetsworth at T1069.40)". 77The references that the primary judge gave do not in my view support the proposition that the appellant's procurvatum, as distinct from the posterior displacement, is of no functional significance. 78Her Honour's first reference was to the joint expert report on current condition, in which Mr Kossmann and Dr Stephen agreed that the posterior displacement was of no significance but disagreed about the procurvatum (see [76] above). Whilst Dr Stephen appeared to take the view that if the appellant was able to straighten his knee, his procurvatum did not matter, Mr Kossmann said that even though there was full knee extension he was "concerned about residual procurvatum" on the basis that full extension of the knee would involve "hyper-extension". This reflected what he had said in his report of 16 April 2009 concerning the "stress to different parts of the body" that would occur if the appellant was forced to make compensatory movements (see [48] above). Mr Kossmann said in that context that he shared the opinion of Professor Saleh (p 6). Mr Kossmann appears to have maintained these views in the concurrent evidence session in which he participated with Dr Stephen (pp 1180 - 1) (see [56] above). 79It is not clear to which expression of Professor Saleh's views Mr Kossmann was referring but it appears that Professor Saleh expressed a view to this effect in the experts on liability concurrent evidence session (see [35] above) with which Dr Tetsworth appears to have expressed agreement. Whether the usefulness of these views to the appellant is negated by Professor Saleh's erroneous assumption that the appellant was not able to straighten his right knee is open to argument. 80The second reference that the primary judge gave was to Mr Simonis' evidence at p 1071.16. This evidence supports the view that the posterior displacement (or translation as Mr Simonis calls it) is not of significance but indicates that Mr Simonis thought otherwise in respect of the procurvatum. He is recorded as saying in relation to this that "the angle matters" and that the angle was about 20 degrees "and it is not an angle. That I would accept", presumably meaning "that is not an angle that I would regard as acceptable" (see [34] above). 81Her Honour's third reference was to Dr Tetsworth's evidence at Transcript p 1069.40. However, Dr Tetsworth's evidence at that point appears to refer only to the posterior displacement. 82In these circumstances my view is that either the primary judge should be regarded as not having given reasons for concluding that the appellant's procurvatum is of no functional significance or, if her Honour's reasons should be inferred to be those given in relation to the appellant's posterior displacement condition, those reasons do not support the conclusion that the appellant's procurvatum is of no functional significance. As determination of this issue involves the interpretation of expert evidence adduced before her Honour and the resolution of apparent conflicts in that evidence, this Court is not in my view in a position to resolve the issue of whether the appellant's procurvatum is of any functional significance and, unless there are other reasons not to do so (such as the pleading point to which I will turn), the issue should be remitted to the primary judge for resolution.
Consideration of final judgment of 29 March 2010 - pleading issue 83Her Honour indicated that submissions that Mr Kelly made on behalf of the appellant were to the effect "that an allegation of failure to correct the procurvatum deformity had always been part of the [appellant's] case" (Judgment [268] - [272]). Her Honour then said: "273 The difficulty with those submissions is that there is not now, and was not at the time Dr Bellemore made his admission of liability, any square allegation pleaded against him of negligent failure to correct the procurvatum deformity. ..." (Judgment [273]). 84After referring to the issues for determination having been formulated in advance of the hearing in an unhelpfully general form, her Honour said: "273 ... In those circumstances, I do not accept Mr Kelly's submission that 'procurvatum has been an issue in these proceedings from years ago' (T1296.4). It is not enough, in my view, that it was referred to in expert reports, or in Mr Kelly's opening address. If Dr Bellemore was to face that particular allegation, it should have been pleaded. The fact that Dr Bellemore was asked some questions directed to that issue by Mr Kelly in cross-examination does not cure the prejudice of permitting the allegation to be made against him now. 274 Accordingly, it is neither necessary nor appropriate to consider whether it is established that the procurvatum condition would probably have been corrected by the use of the hinges Dr Bellemore admits he should have fitted to the frame. In those circumstances, question 12C posed in Mr Kelly's additional questions for the trial Judge does not arise" (Judgment [273], [274]). 85I make the following comments about the relevant pleading of the appellant (that is, the Second Further Amended Statement of Claim: the "2 FASC"): (a) The appellant alleged that the respondent failed to use hinges in the distraction process (2 FASC [7A]). The respondent admitted this in the statement that he forwarded to the appellant on 2 April 2009 (see [26] above). (b) The appellant pleaded that this omission constituted a breach of the duty that the respondent owed to the appellant as he alleged that the failure to use the hinges rendered the respondent liable to him in negligence (2 FASC [7E]). The respondent admitted this breach of duty in his letter of 7 April 2009 (see [27] above). (c) The appellant pleaded that if the hinges had been used his procurvatum condition "would have been corrected without the need for further surgery" (2 FASC [7B]). This pleading seems to have involved two assumptions. First the use of the word "corrected" was capable of suggesting that the appellant was contending that his procurvatum was a condition that he had had at the time that he first consulted the respondent and that, in breach of duty, the respondent failed to correct it. In fact the procurvatum was a pre-existing condition only to an insignificant extent (see [43] above). A clearer pleading would have alleged that the procurvatum occurred as a result of the failure to use hinges and, to the extent that it arose during the distraction process, would have been corrected by the use of hinges (so long as that use commenced before the procurvatum had become too advanced) (see the evidence referred to in [41] above). The second assumption seemingly implicit in this pleading is that the second osteotomy was designed to, and perhaps did, correct the appellant's procurvatum, as well as his varus. The respondent's evidence indicated that this was probably not the purpose of the second osteotomy (see [19] above) and it seems clear that this operation did not correct the procurvatum existing at the time when the operation took place. However, despite these criticisms it seems to me that the pleading sufficiently conveyed to the respondent that the appellant was asserting the proposition, which was clearly arguable upon the basis of the evidence he called, that if the relevant hinges had been used in the distraction process he would not have the procurvatum condition. (d) The appellant pleaded that he suffered injuries as a result of the respondent's negligence. This is pleaded in a rolled up fashion in 2 FASC [7G]. It is also pleaded in 2 FASC [36] as that paragraph refers back to the particulars of negligence set out in [32], which include an allegation of a failure to use hinges (see [66] above). (f) 2 FASC [7F] (see [64] above) does not detract from this analysis. On the appellant's case, the respondent's failure to use hinges or conical washers caused his varus condition which in turn necessitated the second osteotomy. That osteotomy resulted in damage to his femoral artery and resulted in the posterior translation. This paragraph is thus concerned with aspects of the appellant's claim other than the procurvatum. There was no reason why the procurvatum claim could not be dealt with separately elsewhere in the 2 FASC, as I consider it was. (g) The disabilities that the appellant alleged resulted from the respondent's negligence included "significant deformity of the right femur causing discomfort to his right leg" and "fixed flexion deformity of his femur" (see [67] above). These particulars were broad enough to encompass the appellant's procurvatum condition. 86In these circumstances I cannot agree with the primary judge's statement that there was not "any square allegation pleaded against [the respondent] of negligent failure to correct the procurvatum deformity" (Judgment [273] quoted in [83] above). As I have sought to demonstrate, each of the elements of a claim of that nature were alleged in the 2 FASC: that the respondent did not use hinges, that he was negligent in not doing so, that the appellant would not have his procurvatum condition if hinges had been used and the procurvatum condition constitutes a disability under which the appellant labours. 87The primary judge recognised that the procurvatum claim had been referred to in the appellant's opening address, expert reports and in the appellant's cross-examination of the respondent (Judgment [273] quoted in [84] above). I add that the issue was also referred to in the following: The concurrent evidence of the experts on liability (see [33] - [35] above).
Conclusion on procurvatum claim 92For the reasons that I have given, the primary judge was in my view in error in rejecting the appellant's procurvatum claim on the basis that it had not been pleaded. 93It cannot in my view be said that on the evidence before her Honour the claim was in any event bound to fail. The respondent admitted that he was negligent in not using hinges and there is arguably a basis in the evidence for concluding that the procurvatum condition would have been avoided or corrected if the respondent had used the hinges. Further, as I have indicated above, there is arguably a basis in the evidence for a finding that the appellant's procurvatum condition constitutes a serious disability. The primary judge's contrary conclusion, that the procurvatum did not appear "to have any functional significance for Mr Harris" (see [75] above) was not supported by any reasons that her Honour gave. 94In these circumstances the procurvatum claim must be remitted to the primary judge for determination. This should be upon the basis that the only issues in respect of the claim not yet resolved in favour of the appellant are the following: (a) Would the appellant's procurvatum condition have been corrected by the fitting of hinges to the appellant's Ilizarov frames? (b) Does the appellant's procurvatum condition constitute a disability of any significance? (c) To what extent was this condition caused by the respondent's treatment of the appellant other than in performing the second osteotomy? (d) If yes to both (a) and (b) and in light of the answer to (c), what further damages, if any, should be awarded to the appellant? 95I have excepted the performance of the second osteotomy in question (c) because the appellant's pleading alleged only two physical consequences of the second osteotomy and neither was the appellant's procurvatum condition. 96It is clear that the answer to question (c) is at least 70 per cent in light of the concurrent oral evidence of the liability experts (see [43] above). On its face that evidence suggested that 20 per cent of the appellant's procurvatum was caused by the second osteotomy (the outstanding 10 per cent representing a pre-existing condition of the appellant). However I suspect that what the experts meant by that evidence was that that 20 per cent was caused by the absence of hinges on the frame used after the second osteotomy. This is suggested by Mr Kossmann's evidence referred to at [49] above. On this basis the appellant would not be precluded by his pleading from claiming in respect of this 20 per cent. 97It will be for the primary judge to decide in her discretion whether the parties should be allowed to call evidence on this or any other questions remitted to her. 98I should also add that the respondent contended that his admission that his failure to use hinges on the Ilizarov frame constituted a breach of duty related only to hinges designed to correct the appellant's varus condition. He submitted that this was so because the admission was made in response to "the claim being advanced by the appellant at the time that it was made", which related only to the varus condition (Respondent's Written Submissions [1] - [4]). 99This is not an accurate description of the claim then being made. It was clear at the time of the admission that the appellant's claim related not only to his varus condition but also to his procurvatum condition: see the appellant's opening at [17] above, the respondent's cross-examination at [20] above, Professor Saleh's evidence at [22] - [23] above and Mr Simonis' evidence at [25] above. 100Further, whilst strictly the hinges to be used to forfend or correct the two conditions were different, the various hinges could, and should, have been applied "slightly obliquely" (Transcript p 1098) once the procurvatum condition had been recognised in order to correct both the varus and procurvatum conditions simultaneously (see the experts' concurrent evidence referred to at [40] - [41] above). 101In these circumstances I do not accept the respondent's contention as to the scope of his admission.
THE REJECTION OF MR SIMONIS' CURRENT CONDITION REPORT 102By his Amended Notice of Appeal the appellant contended that the primary judge erred in rejecting the tender of a report dated 25 May 2009 of Mr Simonis. Mr Simonis is a resident of the United Kingdom and is an orthopaedic surgeon specialising in Ilizarov surgery. In that capacity he provided reports on liability and gave oral evidence on liability concurrently with other liability experts (see [32] - [45] above). After arriving in Sydney for the purpose of giving that concurrent evidence Mr Simonis examined the appellant and prepared a report on his current condition. The primary judge rejected the appellant's tender of that report, giving her reasons in a judgment of 28 May 2009. 103The primary judge refused leave to the appellant to rely on the report because it had not been served within the time required by Uniform Civil Procedure Rules 2005 r 31.28 and that there were no "exceptional circumstances" to justify the Court granting leave to the appellant to use it notwithstanding that it was not served as required. "Exceptional circumstances" is a matter of which the Court is, so far as is relevant to the present case, required to be satisfied before granting such leave (UCPR r 31.28(4)(a)). 104Her Honour's judgment included reference to the following:
THE APPELLANT'S PSYCHIATRIC CONDITION 113The appellant's claims against the respondent included a claim for damages in respect of a psychiatric condition of the appellant that he alleged was caused by the respondent's negligence. The appellant pleaded this claim in [29], [29A] and [29B] of his Second Further Amended Statement of Claim. Paragraphs [29A] and [29B] became part of the Statement of Claim as a result of the leave to amend that her Honour granted on 28 April 2009 (see [68] above). The relevant paragraphs were in the following terms: "29. Following the abovementioned treatment provided by the defendant and as a consequence of that treatment the plaintiff: (a) has pain, discomfort and disability in his right leg; (b) has developed an incapacitating psychiatric disability; 29A. All of the plaintiff's psychological and/or psychiatric condition (insofar as caused or contributed to by the surgery and treatment by the defendant over the period November 1996 to July 1997 inclusive) has been caused by the surgery of 5 May 1997 and the effects upon the plaintiff of that surgery . 29B. None of the prior shocks or complications or mishaps in the plaintiff's prior surgery or treatment between November 1996 and 4 May 1997 or the course of that surgery would in themselves taken singly or together have produced any psychological or psychiatric injury to the plaintiff had the injuries sustained by him in the surgery of 5 May 1997 not occurred [Paragraphs 29A and 29B are inserted as a result of the admissions made by the defendant on 7 April 2009.]" 114The appellant called expert psychiatric evidence from Dr Warwick Williams, the appellant's treating psychiatrist, and from Dr Robert Gertler. The respondent adduced evidence from Dr Lisa Brown. 115These experts agreed that at the time of the hearing the appellant was suffering from "a chronic Major Depressive Disorder". Drs Gertler and Williams described the disorder as "moderately severe" whilst "Dr Brown considered that [the appellant's] symptoms were probably of a milder intensity than [the appellant] reported" (Judgment [285]). The primary judge however considered that the appellant was "now functionally quite impaired by depression" and accepted the evidence that his condition was "moderately severe" (Judgment [288]). 116The primary judge found that the respondent's negligence did not cause the appellant's psychiatric condition (Judgment [314] and [345]). That finding is challenged on appeal. Whilst individual reports of the psychiatric experts were in evidence, their views on the causation issue were crystallised in their joint report of 7 May 2009 and in the concurrent oral evidence that they gave. The presently relevant question that the experts addressed in their joint report was as follows: "2a During the course of the leg lengthening carried out by Dr Bellemore the plaintiff underwent a second osteotomy which resulted in his femoral artery being severed, claudication symptoms in his right leg after exertion, and a posterior displacement of the right femur. Assuming that the plaintiff did not undergo the second osteotomy and still suffered all of the following outcomes: (a) two pins breaking in February 1997; (b) premature consolidation in early January 1997 resulting in the need to break the callus bone through an increased rate of distraction; (c) scarring of the right thigh; (d) degeneration of the right knee joint with associated arthritic pain; (e) tightness of the soft tissues of the thigh combined with adhesion resulting in discomfort and pain; (f) discolouration of the right foot; and/or (g) the requirement of a stick to ensure stability while walking, would he have suffered from the same psychiatric condition in any event?" (Blue Appeal Book p 1028). 117As can be seen from its terms, this question was directed to the allegation made in [29A] and [29B] of the Statement of Claim (see [113] above) that the appellant's psychiatric condition was caused by the second osteotomy. As noted in that pleading that allegation was in turn based upon the admissions that the respondent made on 7 April 2009 (see [27] above). The admissions were reflected in [7F] of the Statement of Claim. Neither those admissions nor the pleading identified procurvatum as a consequence of the second osteotomy. Other evidence in the proceedings indicated that the procurvatum resulted from the respondent's failure to use hinges in the distraction process and confirmed that the appellant's procurvatum condition was not a consequence of the second osteotomy. 118Although it did not entirely reflect the evidence, the appellant's Statement of Claim (in [7F]) alleged that there were only two physical disabilities that resulted from the second osteotomy: the damage to the femoral artery and the posterior translation. The latter can be disregarded as the primary judge found that it was not of any functional significance (Judgment [241] quoted in [73] above) and there has been no appeal against that finding. Further, the final paragraph of the relevant section of the experts' joint report (see [120] above) indicated that they took the view that the posterior translation (or displacement) of the right femur was not encompassed by the "outcomes" (a) to (g). In my view the result is that, in light of [7F] of the Statement of Claim, it must be assumed that "outcomes" (a) to (g) referred to in question 2a directed to the experts, and in their answers, were not consequences of the second osteotomy. The form of the question, apparently agreed by the parties, in any event assumes that to be so. 119In written submissions dated 15 April 2011 the appellant submitted that [29A] and [29B] of the Statement of Claim were consistent with the appellant's case "that the addition of the negligently performed surgery of 5 May 1997 and its sequelae added to the prior surgery and treatment caused the psychiatric condition from which the appellant now suffers" (at [11]). I do not accept this submission to the extent that it may suggest that the appellant is able, consistently with the pleading, to maintain his claim for damages in respect of his psychiatric condition on the basis that that condition was caused by the respondent's negligence in causing the appellant's procurvatum condition which resulted from the respondent's failure to use hinges in the distraction process. To my mind the pleading in [29A] and [29B] make it clear that an essential ingredient of the appellant's case in this respect is that but for the second osteotomy the appellant would not have the psychiatric condition that he has. This conclusion is consistent with the question that the psychiatric experts were asked to address in their joint report (see [116] above). I add that the appellant's pleading did not allege that the effects of the second osteotomy included the procurvatum condition. 120In their joint report the experts considered that "outcomes" (a) and (b) as specified in the question numbered 2a (see [116] above) would not have played any significant role in causing the appellant's condition. As to the remaining "outcomes" the experts said the following: "With respect to points (c) to (g) all of the experts agreed that these outcomes, because of their persistent nature and the effects on his emotional and physical sense of wellbeing, would have been likely to have contributed to Mr Harris's ongoing depressive complaints. Although Dr Williams considered that Mr Harris had become adjusted to using a stick to ensure stability while walking, Dr Brown considered that this issue continued to be an ongoing stressor for the plaintiff, because of his embarrassment about making use of a stick and him being unhappy about his instability when walking. Dr Brown also relied on information provided by Mr Harris in his clinical assessments of him and in which he referred to being emotionally distressed by his experience of leg scaring, pain in his knee joint, tightness in the thigh and discolouration of the right foot. However, Dr Brown considered that Mr Harris would have developed the same psychiatric condition even had his femoral artery not been severed because of Mr Harris having become distressed by the other adverse outcomes listed in points (c) to (g). Dr Williams considered that had the second osteotomy not been performed the plaintiff would probably have undergone a full remission of mild depressive symptoms which had developed following the first surgery. Dr Williams considered that the issues of (c) to (g) could have contributed to Mr Harris having developed the same condition, however he did not agree that they would have necessarily done so. Dr Gertler agreed that the issues (c) to (g) would have been likely to have caused a psychiatric condition. However, Dr Gertler considered that had Mr Harris not experienced the second osteotomy and severing of the femoral artery the psychiatric condition would not have been as severe in intensity. Dr Brown did not consider that Mr Harris's severity of psychiatric condition would have been significantly different had his femoral artery not been severed All of the experts expressed reluctance to comment on the outcome of a posterior displacement of the right femur, based on a lack of understanding of the relevance of this orthopaedic issue and no clinical information being available to them about its possible psychological effects from their assessments of Mr Harris" (at pp 4 - 5; emphasis added). 121The views of the experts on the causative effect of the second osteotomy thus differed. In the portion of the quote that I have emphasised, Dr Brown expressed a view that, if accepted, was, in light of the terms of the appellant's pleading, fatal to his claim in respect of his psychiatric condition. On the other hand the views of Dr Williams and Dr Gertler were more favourable to the appellant. The experts maintained these views in giving concurrent oral evidence.
The judgment at first instance 122The primary judge's expression of her conclusions as to the cause of the appellant's psychiatric condition commenced as follows: "314 I have not found this issue easy to resolve. In the end, I am not satisfied that Mr Harris' psychiatric disability was caused or materially contributed to by Dr Bellemore's breach of duty in failing to fit hinges or conical washers to the frame. In my view, the opinion expressed by Dr Brown (that Mr Harris would have developed the same psychiatric condition even if his femoral artery had not been severed) accords with common sense and is well sustained by a detailed review of the facts established by the evidence before me. 315 I did not understand it to be suggested on behalf of Mr Harris that Dr Bellemore's failure to use hinges (resulting in the need to correct the varus deformity in surgery) increased the risk of psychiatric injury such as to warrant a finding of the kind referred to by McHugh J in Chappel v Hart at [27]. I do not think that kind of analysis is logical in the present case in any event, having regard to the wide variety of events and decisions that may ultimately have affected Mr Harris' mental state. 316 In my view, a careful consideration of the evidence lends overwhelming support to the view that Mr Harris' present mental state is the result of a complex combination of reactions to many events since childhood, from which Dr Bellemore's negligence cannot be singled out as a necessary condition. Further, I am satisfied that the dysfunctional personality traits described by Dr Brown (of obsessive and avoidant behaviour) and a dysfunctional or exaggerated response to the Ilizarov treatment and the present litigation have substantially contributed to Mr Harris' present condition" (Judgment [314] - [316]). 123I note that her Honour made it clear in Judgment [315] that when she referred in [314] to the respondent's failure to fit hinges or conical washers to the distraction frame she was doing so in the context of the appellant's allegation that that failure resulted in his varus deformity, which in turn required the second osteotomy to be performed. Her Honour did not have in mind the appellant's procurvatum condition, no doubt because of her Honour's view that a claim relating to that condition fell outside the pleadings. 124Following these paragraphs the primary judge undertook a detailed, and in my respectful view, compelling description of circumstances appearing from the evidence that supported her Honour's conclusions. Her Honour's analysis is too lengthy to set out here but can be seen at [2010] NSWSC 176 at [317] - [344]. Some of the points made by her Honour were as follows:
The appellant's challenges 131The first challenge that the appellant made to the primary judge's findings on the psychiatric issue was that "her Honour made no reference to the qualification of Dr Brown's opinion in her report of 18 February 2009" (Appellant's Written Submissions [29]). Dr Brown's view on causation expressed in that report was not as firm as it was in the later joint report of the experts. 132In my view the primary judge's following comments completely answer this complaint: "... To the extent that there are differences between the views Dr Brown has expressed at different times, those differences are completely understandable having regard to the different material available to her at different times, the focus of the questions posed for her consideration and the discussions that took place during the joint conference " (Judgment [313]). 133The appellant then submitted that the primary judge should have analysed the effect of her Honour's finding that the appellant suffered from a more severe psychiatric condition than Dr Brown considered to be the case on her Honour's acceptance of Dr Brown's evidence on causation (Appellant's Written Submissions [32]). I do not consider that any further analysis was required. There was in my view no reason why, having rejected Dr Brown's opinion on the severity of the appellant's condition, her Honour should not have accepted Dr Brown's opinion as to the causation of that condition (whether that condition be described as mild or more severe). In respect of each finding her Honour gave full and in my view persuasive reasons for her conclusion. 134The appellant next submitted that the primary judge was in error in finding that the appellant "was developing symptoms of emotional stress, anxiety and depression probably from at least 1994" (Judgment [290]; Appellant's Written Submissions [33] - [34]). The appellant pointed to the primary judge's reference to the experts having agreed in their joint report that the appellant "may have been suffering from emotional stress or mild anxiety or depressive type symptoms during 1994 to 1995, but not so as to have qualified for a specific diagnosis at that stage" (Judgment [283]). However her Honour's somewhat stronger finding (Judgment [290]) was justified by the view of Dr Brown that was recorded in the joint report when taken in conjunction with her Honour's view of the appellant's evidence of his history. 135The appellant submitted the Dr Brown's stronger view was flawed because it was based upon entries in notes of a general practitioner, Dr Yuen, whom the appellant consulted. The appellant submitted that the evidentiary value of these notes was "so slight as to lack any force" (Appellant's Written Submissions [34]). However in the course of the concurrent oral evidence session, Dr Brown stated why she considered that these notes were in fact of some significance. Nothing was put to Dr Brown by way of cross-examination which suggested that this view was not well-founded. In these circumstances I do not accept the appellant's submission. 136The appellant then submitted that the primary judge: "... was guilty of a serious omission in her failure to refer to any of the substantial body of lay evidence which supported the appellant's case that he was able to conduct a completely normal life with high quality work performance before his surgery, which would tend to invalidate the opinion of Dr Brown and the decision arrived at by her Honour" (Appellant's Written Submissions [35]). The lay evidence to which the appellant referred included the evidence of Mr Paul Cooney who had been the appellant's immediate supervisor at BlueScope Steel from 1993 to 1996, and Mr Peter Corkish, a human resources manager at BlueScope Steel (Appellant's Written Submissions [36] - [37]). 137For reasons given by the respondent, I do not consider that this submission has any substance. First, the primary judge did to some extent refer to Mr Corkish's evidence (Judgment [318] - [320]). Secondly neither of the appellant's psychiatric experts suggested that the evidence of Messrs Cooney and Corkish was of significance. Thirdly the appellant did not suggest to any of the psychiatric experts during the course of their concurrent evidence that the evidence was of any significance. Fourthly Dr Brown took the statements of Messrs Cooney and Corkish into consideration in reaching her conclusions (Report dated 18 February 2009 p 2). 138Fifthly the evidence was in any event not obviously inconsistent with any of her Honour's conclusions. The proposition that the appellant sought to derive from the evidence of Messrs Cooney and Corkish was that the appellant performed his job well until 1996 when he took long leave to enable him to obtain treatment by the respondent. This proposition was not necessarily inconsistent with the primary judge's view that the appellant "was developing symptoms of emotional stress, anxiety and depression probably from at least 1994" (Judgment [290]). To advance his case the appellant at least needed to lead evidence on this topic from one of his experts, but he did not do this. 139The appellant next submitted that the primary judge erred in not drawing a Jones v Dunkel inference against the respondent by reason of his failure to call Dr Bruce Westmore, a consultant psychiatrist engaged by the respondent who had examined the appellant (Appellant's Written Submissions [43]). 140The principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 is capable of applying to a failure to call an expert witness (see for example Packer v Cameron [1989] 54 SASR 246 at 253; Cross on Evidence, 8 th Aust ed (2010) at [1215]). However even if it could be inferred that Dr Westmore supplied a report to the respondent that did not assist the respondent's case, one would not be able to draw an inference about the respect in which it did not do so. It might, for example, have supported the views of Drs Williams and Gertler, rather than those of Dr Brown, concerning the severity of the appellant's psychiatric condition. It would not follow that Dr Westmore necessarily supported Drs Williams and Gertler on the issue of causation presently under consideration and that that was the reason that the respondent did not call Dr Westmore to give evidence. The respondent might not have called Dr Westmore because Dr Westmore supported the appellant on the severity issue (upon which the appellant in fact succeeded). As a result I do not consider that any inference adverse to the respondent on the issue of causation can be drawn against him by reason of his failure to call Dr Westmore. 141Finally, the appellant submitted that the primary judge erred in her consideration of causation of the appellant's psychiatric condition by failing "to deal fully and correctly with the continuing effects on the appellant of the procurvatum injury" (Appellant's Written Submissions [44]). 142I do not accept this submission. As pointed out above (see [119]) it was an essential ingredient of the appellant's pleaded case that but for the second osteotomy he would not have developed his psychiatric condition. He alleged two physical consequences of that surgery. They did not include his procurvatum condition (see [7F] of his Statement of Claim quoted in [64] above). 143Further, the appellant did not allege that his procurvatum condition was a cause of the second osteotomy. Paragraphs 21 and 22 of the 2 FASC contained a clear implication that the second osteotomy was performed to correct the appellant's varus condition. This reflected the evidence indicating that this was so (see [19] above). As a result it was not open to the appellant to contend that his procurvatum condition was one of the causes of his psychiatric condition. Accordingly the primary judge did not err in the approach she took. 144For these reasons I do not consider that the appellant has established that the primary judge erred in the way that she dealt with the appellant's claim for damages based upon his psychiatric condition.
CREDIT AND COSTS 145At the appeal hearing the appellant apparently accepted that the grounds in his Amended Notice of Appeal relating to credit and costs were not pressed as independent grounds of appeal (Appeal Transcript pp 63 - 64, 108 and the appellant's failure to submit to this Court a note of the type to which reference was made at p 108.47). They need not therefore be addressed.
CONCLUSION AND ORDERS 146For the reasons that I have given, the appellant succeeds on the procurvatum issue but not on the issues relating to the rejection of Mr Simonis' report and the appellant's psychiatric condition. As by far the greater part of the appeal hearing was occupied in dealing with the procurvatum issue I see no reason to deprive the appellant of his costs of the appeal. 147I accordingly propose the following orders: (1) Appeal allowed in part. (2) Set aside Orders 3, 4 and 5 made at first instance on 13 August 2010. (3) Remit the proceedings to the primary judge to make such orders as may be considered appropriate in respect of costs of the proceedings at first instance, to determine the following questions and to make such consequential orders as may be considered appropriate: (a) Would the appellant's procurvatum condition have been corrected by the fitting of hinges to the appellant's Ilizarov frames? (b) Does the appellant's procurvatum condition constitute a disability of any significance? (c) To what extent was this condition caused by the respondent's treatment of the appellant other than in performing the second osteotomy? (d) If yes to both (a) and (b) and in light of the answer to (c), what further damages, if any, should be awarded to the appellant? (4) Order the respondent to pay the appellant's costs of the appeal. (5) Direct that the respondent have a certificate under the Suitors' Fund Act 1951, if qualified.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2011
Harris
Bellemore