HILLIER & CARNEY v LUCAS No. SCGRG-94-694 [2000] SASC 331 - SASC 2000 case summary — Zoe

[85]

"Q Were you aware prior to giving evidence, that plain X-rays had been taken in July 1991. A I would have to check with the documents that I was sent if I may? Q You can't answer that question offhand? A Offhand I would say that I was aware that there were films in existence from 10 May, 16 May, 4 June and 12 June and CT scan from August. I don't have a direct recollection of the presence or absence of any films in July. Q Given what you have said earlier about the significance of plain X-rays, do you agree that plain X-rays can cast important light on the position of screws? A Yes, I would agree with that, yes. Q Had you been aware of the existence of plain X-rays in July 1991, prior to giving evidence, would you wish to look at those X-rays prior to venturing an opinion to the court. A Well, as I told you the other day, I understand that the screws were repositioned on a date in - may I refer to this document? HIS HONOUR Q What document are you looking at? A P1. Q What page? A P7. XXN A My understanding is that the fusion devices, the plates and so on had been removed and repositioned on 22 May, so that the later film may not have represented the exact position of the screws. HIS HONOUR Q That's reading the operative details, that is in line with what you been told, is it, I think you said to Mr Black about the repositioning. A I was told by Mr Black that the screws were - that the screws and plates were removed and the screws were placed back in, I believe the word was "the same position" or "approximately the same position". Q They weren't repositioned? A They were removed and repositioned. Q To me "repositioned" means that they were put somewhere else. A No, I don't believe that they were put - Q They were removed and put back. A Correct. Q In the same position. A That's correct. Q That's what you were told. A Correct. XXN Q Were you aware, prior to giving evidence, that it had been suggested by another radiologist that there was material in plain X-rays in July 1991. A I don't recall without reference to Dr Saifuddin's report. Q Would you like to look at that report for the purpose of refreshing your memory. A Yes - yes, there is a reference on p3 to a film of 1 July. Q He's the same gentleman as the Dr Zeef you were referring to the other day. A That is his Christian name. Q Can we therefore take it that prior to giving evidence, before this court, you were aware that there was material in the plain X-rays of the lumbar spine of 1 July 1991 that it was rightly or wrongly considered to be of significance by another radiologist. A In that I had received that document on 3 June and had read it, yes, I must have been aware that that was the case."

[105]

"Certainly it cannot be said that the learned judge gave no reasons; but in my judgment he failed to provide those findings and reasons which enable 'a proper understanding of the basis upon which the verdict entered has been reached'. That point is to my mind sufficiently taken by grounds of appeal which complain that the judge failed 'to give any sufficient or any consideration to', amongst other things, the evidence of Mr Carmody and Mr Dowling and the cause of the fire and 'failed to take into account' a number of aspects of the scientific evidence. By recording only one side of the judicial equation he has deprived this court of the opportunity of assessing the weight to be given to the finding on credit, which might thus be accorded for (sic) greater cogency than in the whole of the context it properly deserves. It is, to my mind, impossible for a judge to make a finding on credit in a vacuum, as it were, without relating the witness' evidence, demeanour and particular circumstances to the other material evidence in the case. In Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193; 54 ALJR 378 at 381 Gibbs J (with whom Stephen, Mason and Wilson JJ agreed) dealing with the deference which an appellate court generally accords to the trial judge's findings on credibility said: 'Gallop J was not entitled to reverse the finding of the tribunal which was based on its view of the credibility of the witnesses unless it was seen clearly to be wrong on grounds which did not depend merely on credibility - for example, on the ground that the evidence which was accepted was inconsistent with established facts, or was so improbable that no reasonable person could accept it, or that the judgment of the tribunal disclosed that its conclusion was affected by some error of law or fact. The evidence of Mrs Hale no doubt was such that it might well have been viewed with suspicion, but it was not inherently improbable and it was not inconsistent with any facts which were indisputable or established by other evidence which the tribunal accepted.' It is important to observe that this passage emphasises that the comparison which an appellant (sic) court may make is between findings made by the judge below, that is to say his or her finding on credibility viewed against findings on other evidence. It is only by this means that the appellant (sic) court can judge whether deference or disagreement is the appropriate response. In the present case we cannot say what view the judge took of the expert and other evidence and because of his failure to consider it to the point of conclusion we cannot review the weight to be given to the finding on credibility."

[197]

"With regard to the right-sided screw, Dr Saifuddin after examining two x-rays, an AP (anterior posterior) view and a lateral view taken on 10 May 1991, expressed the view that the dome and two turns of the screw had gone beyond the mid-line of the sacrum. He was critical of Dr Parker's use of iliopectineal lines to determine rotation, finding it difficult to determine which of the various white lines on the x-ray had to be imposed. In his examination-in-chief, Dr Saifuddin was of the opinion that 'the right-sided S1 screw must have penetrated the anterior cortex of the ala of the sacrum.' As for the left-sided screw Dr Parker expressed the opinion that it did not penetrate the anterior cortex of the sacrum at all (in other words did not come through the front of the sacrum, the bony plate at the base of the spine) in front of which a nerve root passes. Dr Saifuddin on the other hand said that it was not possible to be definite one way or the other on the position of the screw based on the x-rays and scans he had before him. He felt that he could not be sure that the left-sided pedicle screw did not penetrate the anterior cortex of the sacrum. He disagreed with Dr Parker. I prefer the opinion of Dr Saifuddin. Dr Saifuddin when examining an MRI scan made the observation that the 'left pedicle screw is pointing directly at the L5 nerve root'. He explained that if the nerve continued in the direction it was taking that a screw would irritate the nerve even if it penetrated a millimetre of the sacrum. On the radiological material before the Court, it was impossible to track the direction of the nerve root as the MRI scan had only mapped half of the offending screw. Nevertheless, this combined with another observation of Dr Saifuddin seem to indicate that the screws were placed in at an angle which was most likely to injure a nerve. This observation came out in a conversation between myself and Dr Saifuddin: "A My understanding of the situation, and I am now showing you again slide 23 of the CT scan, is that there are two safe, accepted techniques for S1 pedicle screw fixation. The first is with medial angulation in such a fashion and the second is with fairly exaggerated lateral angulation in this fashion here. I am personally not aware of the literature which suggests that to place a screw directly in this direction is acceptable. Q Does it follow from that that what was done here is not acceptable. A That would be my opinion, yes."

Parties

Applicant/Plaintiff:

# HILLIER & CARNEY

Respondent/Defendant:

LUCAS No. SCGRG-94-694 \[2000\] SASC 331

Legislation Cited (6)

Safety, Rehabilitation and Compensation Act 1998(Cth)s 50, s

Evidence Act 1929s 45A

Rehabilitation and Compensation Act 1988

Safety, Rehabilitation and Compensation Act 1998(Cth)s 50, s

Evidence Act 1929s 45A

Rehabilitation and Compensation Act 1988

Cases Cited (30)

HILLIER & CARNEY v LUCAS No. SCGRG-94-694 [2000] SASC 331 (24 October 2000)

Evidence Act 1929 s 45A;
Safety, Rehabilitation and Compensation Act 1998 (Cth) s 50, s 51, s 68;
Supreme Court Rules r 38, r 46.15;
Supreme Court Act s 30C, referred to.
Batchelor v Burke [1981] HCA 30; (1981) 148 CLR 448;
Bates v Nelson (1973) 6 SASR 149;
Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541;
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479;
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161;
Hughes v National Trustees Executors and Agency Co of Australiasia Ltd [1978] VicRp 27; [1978] VR 257;
Morres v Papuan Rubber and Trading Co Ltd [1914] NSWStRp 21; (1914) 14 SR (NSW) 141;
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844;
Pond v WorkCover [1999] SASC 362;
Pelestrello E Companhia Ltd v United Paint Co Ltd (1969) 3 All ER 479;
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642;
Ratnam v Cumarasamy (1964) 3 All ER 933;
R v Fowler (1985) 39 SASR 440;
R v Perry (No. 3) (1981) 28 SASR 112;
The Queen v Calabria (1982) 31 SASR 423;
Trade Practices Commission v Arnotts Ltd (No. 5) (1990) 92 ALR 527;
Vestris v Cashman (1998) 72 SASR 449;
Wheeler v Page & Harris (1982) 31 SASR 1, applied.
F v R (1983) 33 SASR 189;
NRMA Insurance Ltd v Tatt (1989) 92 ALR 299;
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479;
Sidaway v Board of Governors of Bethlem Royal Hospital [1985] UKHL 1; [1985] AC 871;
Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523, discussed.

His Honour then discussed Sidaway v Board of Governors of Bethlem Royal Hospital [1985] UKHL 1; [1985] AC 871 and Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479. He then said:

"The operation occurred in 1991 and at this time the Bolam principle was accepted law in Australia. It is worth noting that while the Bolam test was the law at the time, it was not always followed: See A1 Brighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542, F v R (1983) 33 SASR 189, Battersby v Tottman (1985) 37 SASR 524 and E v Australian Red Cross [1991] FCA 20; (1991) 27 FCR 310. This may not have much relevance, as, in my view under either test, Mr Hillier's conduct does not attain the standard of a responsible body of medical opinion. I did not hear from any expert witness, that it was appropriate to place the screws through the anterior cortex of the sacrum so far as to injure nerve structures. For the above reasons I conclude that Mr Hillier was negligent in the performance of the operation by putting the left sacrum screw in so far as to impinge on the nerve root."

It was necessary for the plaintiff, of course, to prove the assumptions upon which Mr Morley's opinion rested: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844.

The factual basis upon which Mr Morley's opinion rested, namely, that the left-sided pedicle screw protruded by 7 mm, or at least far enough so as to cause damage to the nerve, had to be established: Paric v John Holland (Constructions) Pty Ltd (supra), and by admissible evidence. Expert evidence based entirely on inadmissible evidence is inadmissible itself: Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at 649.

(1981) 148 CLR 448

(1973) 6 SASR 149

(1962) 108 CLR 541

(1990) 93 ALR 479

(1977) 139 CLR 161

(1985) 59 ALJR 844

(1961) 108 CLR 642

(1985) 39 SASR 440

(1981) 28 SASR 112

(1982) 31 SASR 423

(1990) 92 ALR 527

(1998) 72 SASR 449

(1982) 31 SASR 1

(1983) 33 SASR 189

(1989) 92 ALR 299

(1992) 175 CLR 479

(1961) 106 CLR 523

(1980) 2 NSWLR 542

(1985) 37 SASR 524

(1991) 27 FCR 310

(1980) 30 ALR 193

(1978) 20 ALR 31

(1985) 58 ALR 423

(1991) 171 CLR 657

HILLIER & CARNEY v LUCAS No. SCGRG-94-694 [2000] SASC 331

At a glance

Court

Decision date

Source

Judgment (446 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (30)

HILLIER & CARNEY v LUCAS No. SCGRG-94-694 [2000] SASC 331 (24 October 2000)