Morrison v Wong & Anor - [2001] NSWSC 304 - NSWSC 2001 case summary — Zoe

NSWNSWSC

Morrison v Wong & Anor

[2001] NSWSC 304

Supreme Court of NSW|2001-01-31|Before: Sperling J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2001-01-31

Before

Sperling J

Catchwords

2. Plaintiff to pay the defendants' costs.

Source

Original judgment source is linked above.

Catchwords

2. Plaintiff to pay the defendants' costs.

Judgment (54 paragraphs)

[1]

CITATION : Morrison v Wong & Anor [2001] NSWSC 304 revised - 4/05/2001 FILE NUMBER(S) : SC 13488/93 29 - 31 January 2001 HEARING DATE(S) : 1, 2, 5 - 8, 12 - 16, 19 - 23 & 26 February 2001 19 & 20 March 2001 JUDGMENT DATE : 4 May 2001

[2]

Derek Morrison PARTIES : Wai Wong Southern Sydney Area Health Service JUDGMENT OF : Sperling J at 1

[3]

COUNSEL : Mr John Graves SC with Mr Ian Butcher for the Plaintiff Mr David Higgs SC with Mr Brett Shields for the Defendants SOLICITORS : Carbone Anderson Property & Litigation Lawyers for the Plaintiff Lynn Boyd Solicitor for the Defendants CATCHWORDS : Negligence - medical practitioner and hospital - whether failure to inform or warn of risks - role of practice in relation to breach of duty - whether damage causally related to any breach of duty Ainsworth v Levi (Court of Appeal, 30 August 1995, unreported) Chappel v Hart (1998) 195 CLR 232 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 F v R (1983) 33 SASR 189 Green v Chenoweth [1998] 2 Qd R 572 Hotson v East Berkshire Area Health Authority [1987] AC 750 CASES CITED : Jones v Dunkel (1959) 101 CLR 298 March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 Rogers v Whitaker (1992) 175 CLR 479 Rosenberg v Percival [2001] HCA 18 Sellars v Adelaide Petroleum N.L. (1992-1993) 179 CLR 332 Shead v Hooley [2000] NSWCA 362 Stapley v Gypsum Mines Ltd [1953] AC 663 Tran v Lam (Supreme Court, 20 June 1997, unreported) DECISION : 1. Entry of a verdict for the defendants directed; 2. Plaintiff to pay the defendants' costs.

[5]

Events prior to 3 May 1977 3 Events prior to 3 May 1977 are, broadly speaking, common ground. 4 The plaintiff was born on 3 February 1949, in England, where he completed primary school and attended secondary school. He left to complete an apprenticeship as a butcher in 1964. After working for two years, he migrated to Australia in 1966 where he was employed in a number of different jobs before returning to England in 1968. In that year he married Judith Biggs. Their son Paul and daughter Meachelle were born in 1970 and 1971 respectively. During this time and until 1974, the plaintiff worked variously as a milkman, delivery driver, off-licence manager and yardman. He was also a volunteer fireman. 5 In 1974, Mr and Mrs Morrison emigrated to Australia with their children, travelling by ship. While traversing the Great Australian Bight, the ship struck bad weather and keeled over to one side. The plaintiff, who was in the middle of the lower deck at the time, lost his footing, sliding down across the ship along with other passengers who landed on top of him. The plaintiff received injury to his back. From that time on, until 1977, the plaintiff had spasmodic soreness in his back but was fit enough to manage physically demanding work. After settling in Engadine, a suburb of Sydney, he worked as a laboratory technician in the carbon black section of Phillips Chemicals Pty Ltd and, part-time, as a cleaner in his own cleaning business. 6 In 1977, the plaintiff entered Kareena Private Hospital for a period of traction and for manipulation under general anaesthetic. He was under the care of an orthopaedic surgeon, Dr James Vote. On 30 March 1977, Dr Vote advised the plaintiff of the possible need for excision of an L4-5 disc lesion, being an operation to remove part of the intervertebral disc lying between the fourth and fifth lumbar vertebrae of the spine. 7 Three weeks later, on 21 April 1977, the plaintiff ceased employment with Phillips Chemicals in order to pursue his cleaning business on a full-time basis. He had the opportunity of extensive further work. Another cleaner in his area intended to retire and had offered the plaintiff his client list. The plaintiff intended to take on employees and expand his business. At this time, the plaintiff was experiencing some soreness but was reasonably comfortable. 8 On the evening of 23 April 1977, the plaintiff was camping with his family at the Colo River. When he woke the next morning, 24 April 1977, he found that he was in excruciating pain. He could not walk and had to be taken by ambulance from the camp site to Hawkesbury District Hospital. In the ambulance and at the hospital, he was given medication to relieve the pain. Later that day, 24 April 1977, he was transferred to Sutherland Hospital. Four days later, on 28 April 1977, Dr Vote came to examine him and ordered a myelogram of his lumbar spine. 9 The plaintiff signed a consent form for the myelogram, dated 2 May 1977. It was witnessed by a Dr Sonnabend, who was a registrar employed by the hospital. The form acknowledges that the effect and nature of the procedure were purportedly explained to the plaintiff. It does not suggest that the plaintiff was told of any possible complications or sequelae. The myelogram procedure itself was performed at the hospital by Dr Wong.

[7]

The relevant anatomy 13 The relevant anatomy, as appears from the evidence, is as follows. The spinal column, through which the spinal cord passes, is composed of bones called vertebrae (single: vertebra). Vertebrae are classed depending on where in the spinal column they are situated. Those in the neck are the cervical vertebrae (C1-7); below these, at the chest level, are the thoracic vertebrae (T1-12); below these, at around waist level, are the lumbar vertebrae (L1-5); below these is the sacrum, consisting of one bony mass of five fused vertebrae, with the coccyx at its base. 14 Each vertebra consists of a solid bony body, at the front (or anterior) and a spinous process at the back (or posterior). Between these two parts of each vertebra lies the spinal canal, an aperture in the vertebrae through which the spinal cord passes. The bodies of adjacent vertebrae are separated by an intervertebral disc, which consists of a tough fibrous membrane (the "annulus fibrosis") on the outside and a softer nucleus inside. The nucleus is composed of material of semi-solid consistency. 15 The spinal cord lies within layers of tough membrane called the meninges, which also encircle the brain. The meninges are composed of three layers: the dura mater or dura is a tough outer fibrous membrane; inside and immediately applied to it is the finer arachnoid membrane or arachna mater. Beneath the arachnoid lies the subarachnoid space. This space contains the cerebrospinal fluid (CSF) and the spinal cord. From the arachnoid membrane, fine filaments project through the CSF to the surface of the spinal cord, which is covered by a membrane called the pia mater. 16 "Dural sac" and "thecal sac" are other terms used to denote the dura and the structures it encloses. 17 The spinal cord stops at the lower margin of the body of the first lumbar vertebra (L1). Below this level the descending nerve fibres within the dural sac separate and form a structure termed the cauda equina (so called because the fibres have the appearance of a horse's tail). 18 At various points along the spinal cord and the cauda equina, rootlets emerge post laterally, front and back, on each side, the front ones being for motor functions and the back ones being sensory. At the point where a nerve leaves the dural sac, the dura follows the nerve for a short distance. It then fuses onto what becomes the fibrous sheath of the nerve itself at about the point where the nerve emerges from the spinal canal. 19 Generally, nerve roots emerge from the spinal canal posteriorly below the spinous process of each vertebra. The roots are named by reference to the vertebra at which they emerge. Hence, for example, nerve roots leaving the spinal canal below the spinous process of the L5 vertebra are termed the L5 nerve roots. 20 When a disc prolapse, such as experienced by the plaintiff, occurs, the disc protrudes posteriorly into the spinal canal, compressing the dura and the structures within. In the case of a severe disc rupture (also described as herniation of the disc) such as that experienced by the plaintiff at the time of his admission to Sutherland Hospital, the annulus fibrosis bursts and the semi-solid nucleus is expelled backwards into the spinal canal, causing severe compression of the dura and the structures within it. In this manner, a disc prolapse or rupture can impinge upon the nerve roots, and may also impinge upon the spinal cord and the nerve fibres within (if above the L1 vertebra) or upon the nerves of the cauda equina (if below the L1 vertebra). The result of this, from the standpoint of a patient suffering from either a prolapse or a more serious rupture, may be pain and / or numbness and / or weakness, of varying degrees, in a part or parts of the body served by nerves which emerge from the spinal canal below the level of the disc prolapse.

[8]

Myelography 21 A myelogram is an x-ray examination, performed by a radiologist, in which a contrast medium is injected into the subarachnoid space within the spinal column. Its purpose is the detection and definition of abnormalities of the spine, spinal cord, or surrounding structures. Until recently, myelograms were widely used for this purpose. Recent advances in other, non-invasive methods (for example, MRI) have now greatly reduced the need for myelograms. 22 Myelograms were first performed in the early years of the twentieth century. Radiologists searched for a suitable contrast medium. The earliest myelograms were performed using air, but the level of contrast was poor. A variety of media were tested in the 1940s and 1950s with varying degrees of success. By the 1970s and in 1977, the most widely used contrast medium in the United Kingdom, the United States of America and Australia was an iodised oil-based compound, ethyl iodophenyl undecylate (or iophendylate), marketed as "Pantopaque" in the USA, and as "Myodil" in the UK and here. 23 In general terms, a Myodil myelogram, of the type performed on the plaintiff, proceeds as follows. The radiologist asks the patient to lie on his or her side or prone (on his or her front) on the x-ray table. The area in which the Myodil is to be injected is disinfected. (Practice appears to have varied as to whether a local anaesthetic was given.) The radiologist inserts the lumbar puncture needle between two of the lumbar vertebrae and into the subarachnoid space. A small amount of CSF is drawn off for analysis. Then the contrast dye is injected into the subarachnoid space. (Practice varied as to whether the needle was removed at this stage or left in place for aspiration or attempted aspiration of the Myodil at the end of the procedure.) The x-ray table is then tilted at various angles to allow the dye to flow up and down the subarachnoid space. The radiologist takes x-rays at appropriate angles. Where the practice was to leave the needle in place, the dye is then aspirated, or an attempt is made to do so (with varying expectations of success, according to the evidence). 24 An information sheet included with the ampoules of Myodil by the manufacturer, as from November 1973 and in 1977, contained the following passages: " Administration and dosage Myelography: In general, sufficient Myodil is introduced into the spinal subarachnoid space to allow all the structures under suspicion to be outlined by simple posturing of the patient. Usually 6 to 9 mL are ample… Occasionally up to 18 mL are necessary if the subarachnoid space is wide. . . . . . Contra-indications … Myodil should not be used when there is a history of reaction to iophendylate or iodine. The examination should be postponed if there is blood or bilirubin in the spinal fluid. . . . . . Precautions … As much Myodil as possible should be removed after the procedure, but when only small amounts are involved, most consider it reasonable not to aspirate if this requires another lumbar puncture. . . . . . Adverse Reactions Myodil is usually well tolerated, and… serious side effects are rare. … Post-myelography arachnoiditis, which may be severe, occurs in some patients. This has not been associated with a specific disease or technique of investigation. The literature contains reference to adhesions and fibrous exudate being found on operation in patients who had at some time undergone myelography with iophendylate. The sporadic nature of these reports, and sometimes the sparseness of information about the patient's condition prior to myelography, make it difficult to evaluate the role of iophendylate. However, these reports emphasise the importance of removing as much Myodil as possible at the time of investigation."

[11]

The events of 3 May 1977 that are common ground 28 The events of 3 May 1977 itself are, to some extent, not in dispute. The myelogram procedure carried out on that date included the following features which are common ground. 29 Dr Wong visited the patient in the ward shortly before the myelogram procedure was due to take place. The plaintiff was then taken from the ward to the myelography room. Dr Wong placed the plaintiff on the myelography table, inserted a needle into his lumbar spine and withdrew a small quantity of the plaintiff's CSF, which he sent to the laboratory for analysis. (Whether a local anaesthetic was given is in dispute.) Dr Wong then instilled eight millilitres of Myodil into the plaintiff's subarachnoid space. A number of x-rays were then taken of the plaintiff's spine from various viewpoints and at various angles of tilt, some or all of which were tendered as evidence in the trial. The films confirmed a substantial disc prolapse at the L4-5 disc level. 30 During the procedure but before taking the myelogram films, Dr Wong removed the myelography needle from the plaintiff's back. The fact that this occurred before taking the myelogram films is confirmed by the films which do not show the needle. Had the needle been left in situ, it would be visible on the films. 31 The Myodil remained in the plaintiff's subarachnoid space after the conclusion of the procedure. Dr Wong made no note of this in the plaintiff's records or in his radiology report. Nor did he inform the plaintiff or the plaintiff's surgeon, Dr Vote, of this fact. 32 The following report was made by Dr Wong in relation to the procedure. It is dated 4 May 1977. " LUMBAR MYELOGRAM 8 ml of Myodil were introduced into the lumbar subarachnoid space via a lumbar puncture. The films show that there is gross indentation of the Myodil column at the level of L4 - L5 disc space. The Myodil column is displaced towards the right of the mid line. Part of the disc appear [sic] to be sequestrated as the anterior margin of the Myodil column at the level of the lumbar vertebral body of L5 is pushed back. There is free flow of contrast up to the upper dorsal spine. IMPRESSION Large disc lesion at the L4 - L5 disc space mainly on he [sic] left side and which appears also to have sequestrated."

[12]

The plaintiff's account of the myelogram 33 The intensive attention to detail necessarily undertaken at the trial gives a sense of immediacy to the facts of the case. It is important, therefore, to be reminded of how long ago these events occurred. In May 1977 the plaintiff was 28 years of age. His children were about six and seven years of age respectively. The plaintiff is now 52 years of age. His children have passed through childhood and adolescence and are now about 30 years of age. That is a very long time. Memory becomes less resilient with the passage of time. The courts are familiar with the phenomenon of confabulation; we fill in the gaps. There is a natural tendency to fill in the gaps to suit. We are then incapable of distinguishing between true memory and confabulation, between recollection and reconstruction. Certainty in this area of human experience is a measure of conviction but not necessarily of reliability. None of this implies dishonesty. 34 The plaintiff's evidence was that he was told nothing about the risks associated with a Myodil myelogram before undergoing the procedure, either by Dr Wong or Dr Sonnabend. 35 The plaintiff's account of the myelogram itself was as follows. He described a procedure which, on his account, was an extremely traumatic experience. He denied that he was placed on his side during the insertion of the myelography needle. He said he was placed on his back and forcibly pulled into a sitting position with the use of straps, at which point Dr Wong allegedly inserted the myelography needle without administering local anaesthetic. In the plaintiff's own words [Tr 129]: PLAINTIFF. I recall that I was strapped up, like with straps under my legs and under my arms. I was unable to bend, because of my condition, and I was forcibly bent by Dr Wong, and whoever else that may have been assisting, to the extent that I was suffering horrendous tortured pain, screaming and sobbing, to the extent that I didn't pass out but I was in horrific, to the extent when finally my body was bent sufficiently enough for an injection to be carried out, which then took place, I think that's - but I was not laying on my side, sir. HIS HONOUR. How were you lying? PLAINTIFF. Your Honour, it is a long time ago, but I recall being - I can't even do it now - but I was laying flat and I was forcibly bent forward to put the needle in. I was not laying sideways. I was laying-- HIS HONOUR. Are you saying you were on your back? PLAINTIFF. I was on my back and there was, as I said I try not to flower the whole thing. I am just trying to be honest. I remember them doing something with straps, or something under my legs and my arms, and they were forcing me to bend my spine upwards and downwards, and because I couldn't move; that, sir, is why I can remember that period other than everything else I can't recall: no-one that's been put through that would ever, ever forget it. It was nothing but torture. It was barbaric - and I will use those words - barbaric. 36 Counsel for the defendants endeavoured to elicit a more precise description of the apparatus described by the plaintiff. The plaintiff was unable to describe the straps in detail, having, he said, been in too much pain at the time to be able to take note of such details. Counsel persisted in his attempt to obtain a clearer picture of what the plaintiff was describing [Tr 130]: COUNSEL. Where do you say that they were placed, around your legs or under your legs? PLAINTIFF. I remember them going behind my knees and around my shoulders somehow and I said - remembering I am laying flat, I am having these placed on me and then all of a sudden I am wrenched up and the pain was that horrific that I can't recall exactly the step by step of what they did to me, other than they must have been somehow joined to force me upwards into a sitting position, for a better word, from laying flat, remembering only 24 hours earlier I was in postural drainage and I couldn't move. I can't - I can't - you have got no ideas what it did to me, and I cannot stay here - if I stay here for the rest of my life I could not portray to you the torture that I was experiencing on that day. I can recall that, sir, very clear. That was the worst day. That will stay in my memory for life, but exactly how it was done, other than the straps and the bending forward, is what I can recall and then the horrific pain took over and I lost all content of what was going on, except until the needle went in of course, because I wasn't pre-meded, as you would gather there was no pre-meds, so when the needle went in I knew that also. 37 The plaintiff was then asked to explain what he meant by "lost all content" [Tr 130]: "I suppose I lost, I suppose all - I don't want to say faculties, I don't like saying that - I was just in so much pain, so much pain, that I think I can't describe exactly what I mean by that, I mean, unless, sir, you are put into the position I was and suffered the way I did, it is very difficult to come up with a word that suits what you need to hear. All I know is that it was horrendous, sir, horrendous." 38 According to the plaintiff, it was the pain of the needle being inserted which brought him out of this "lost" state, which he later [Tr 132] described as "foggy pain feeling" and "haze". He said that he became more alert, and he recounted what then occurred: COUNSEL. Sorry, after the needle became placed into you? PLAINTIFF. I became more alert, because you have a four and a half inch needle stuck in your back; anyone would become alert. 39 After the needle was inserted, according to the plaintiff, Dr Wong drew off some of his CSF into a bottle and showed it to him. The next step would have been to instil the Myodil. Although the plaintiff admitted he could not see what was happening behind him and, therefore, had no visual evidence that the Myodil was introduced at that stage, he gave evidence about the sensation he felt around the time when he assumed - as would be correct - that the Myodil was being introduced [Tr 21-22]: PLAINTIFF. As soon as the needle was injected, I had a different sensation to that I was experiencing at that time with my back problem. COUNSEL. Pausing there, the needle you were referring to is what? PLAINTIFF. The myelographic needle that was injected. . . . . . COUNSEL. What was the difference once that, once the needle had gone in, what did you notice? PLAINTIFF. The first feeling - there was a burning sensation and a heaviness in between my legs and in my buttock area. The pain, sorry, the burning pain, because it's very different to the physical, the structural pain. COUNSEL. Do your best to describe for us in words what you are feeling, the difference? PLAINTIFF. The burning pain is like the worse case of sunburn you have had, or the hottest curry you have ever had. I think that was my little saying and it has never left me since that day. ... What I'm saying is that I had my physical disc problem, but this was a different set of pain and suffering, there was in addition to what I was experiencing at that time, it was an extra sufferance in the sense of a completely different range of sensations. 40 According to the plaintiff, it was shortly after this that the needle was removed from his back and Dr Wong started taking x-rays of his spine. 41 Counsel for the defendants suggested to the plaintiff that Dr Wong removed the needle because the plaintiff complained of being in pain and asked for the needle to be removed. The plaintiff did not dispute that he made the pain known to Dr Wong but he emphatically denied that he asked for the needle to be removed [Tr 145]: COUNSEL. Until after the needle was removed you were in extreme pain? PLAINTIFF. Yes. COUNSEL. And during the time up until the needle was removed when you say you were in extreme pain, did you do anything to, in order to show or indicate or even tell the people who were in the room with you at the time including Dr Wong that you were in extreme pain? PLAINTIFF. No, I would have been laying very still, sir. COUNSEL. I appreciate that you say that you would have been laying very still but by that answer do you mean to convey to us that you didn't say anything, you didn't tell them that you were in extreme pain? PLAINTIFF. I can't recall telling them but I would have been expressing it in a way that they would have been aware. HIS HONOUR. You have told me I think that the time when you were being moved into this sitting position the pain was so intense that you were screaming and sobbing? PLAINTIFF. As they were bending me forward, your Honour. COUNSEL. I suggest to you that after the needle was inserted but before the films were taken, you made it plain that you were in extreme pain? PLAINTIFF. No, sir. COUNSEL. Didn't you continue to sob and -- PLAINTIFF. Yes. COUNSEL. -- and cry out? PLAINTIFF. Yes, I did. . . . . . [Tr 146] COUNSEL. Did you say to Dr Wong that the needle was causing you more pain when it was inserted or afterwards? PLAINTIFF. I can't recall saying so but I would be honest enough to say to you, sir, that I would have said so. COUNSEL. Did you indicate to him in any way that you wanted the needle removed? PLAINTIFF. No, sir. COUNSEL. I suggest to you that you did indicate to him that you wanted the needle removed because it was causing you pain? PLAINTIFF. That is not correct. 42 Then followed a series of questions from the defendants' counsel about the extent to which the plaintiff was able to keep still during the procedure, given the amount of pain to which he was subjected. The plaintiff's evidence oscillated between managing to keep still and keeping as still as possible [Tr 147]:

[13]

COUNSEL. During that period of time you found it very difficult to remain still because of these problems that you have described, that's so, isn't it? PLAINTIFF. I would have kept as still as possible knowing the needle was being put into my back. COUNSEL. After the needle was put in your back as to the horrific pain, did you find it difficult to remain still? PLAINTIFF. No, sir. COUNSEL. You didn't find any difficulty in remaining still? PLAINTIFF. He was removing the cerebral fluid from the spine, I would have to have been still for him to do it. COUNSEL. You are just reconstructing what you believe happened? PLAINTIFF. I am telling the facts, what I know of them. . . . . . COUNSEL. So, you actually remember there being no problem with you remaining still whilst he was extracting the cerebrospinal fluid? PLAINTIFF. I am quite clear about that period of my life, as if it was yesterday. COUNSEL. And you had no difficulty keeping still? PLAINTIFF. I kept as still as possible till I, in my personal view the less movement I would have made would be less painful to me so I would have been as still as possible. COUNSEL. Even though I don't necessarily accept that, I appreciate it and ask you whether you would make this concession, that even though you remained perfectly still you found it difficult because of the pain and the like to remain still after the needle was inserted? PLAINTIFF. That's not correct, sir. COUNSEL. You had no difficulty in remaining still during that period? PLAINTIFF. I remained as still as I could so I would not experience any more pain that I was going through. COUNSEL. You had difficulty remaining still because of the pain? PLAINTIFF. No. COUNSEL. Didn't you want to return to the straight position? PLAINTIFF. I was following the doctor's advice and one I am sure [sic] if he was going to inject this four and a half inch needle into me to "remain as still as possible, Mr Morrison" and I would have done so whatever the situation was. I would have done the utmost to protect myself and to make things as easy as possible for me to go through this procedure. 43 After the procedure was finished, the plaintiff was returned to the ward. He said that Dr Wong did not inform him that the Myodil remained in his subarachnoid space after the conclusion of the procedure; but that he assumed it had not been removed because he had never been told that it would be.

[14]

Dr Wong's training, experience and usual practice concerning aspiration of Myodil 44 Dr Wong's account of his training and experience in relation to myelography up to May 1977 was as follows. 45 While working as a trainee radiologist in Kuala Lumpur in the late 1960s, Dr Wong observed the techniques of a number of visiting specialist radiologists who came to the newly independent Malaysia under the Columbo program. Among these were British, Australian, American and Canadian radiologists, most of whom performed myelographies. 46 In this period, Dr Wong's usual practice was not to aspirate the Myodil at the end of the myelogram, but to leave it in situ. This was in accordance with his observation of the practice of the visiting specialists. He was also told not to introduce the Myodil in the first place in the case of a bloody tap. He said he did not know then why this was not to be done. He said he was not at that stage aware of any putative link between Myodil, blood and arachnoiditis. 47 While in London during the period from 1970 to 1972, Dr Wong observed the senior radiologists at the Hospital for Nervous Diseases, Queens Square, Maida Vale Hospital and the Hospital for Sick Children perform myelograms. The practice he observed at the former two hospitals was also never to attempt to aspirate the Myodil. However, the Director of Radiology at the Hospital for Sick Children (A) refused to use Myodil on children, preferring instead to use the older technique of air myelography. Dr Wong was curious about this, and asked (A) why he would not use Myodil. (A) told him that Myodil could cause "complications" and he did not consider it safe enough to use on children. Dr Wong then asked the Director of Radiology at Queens Square (B) about the "complications" referred to by (A). (B) told Dr Wong that he did not believe that there was any risk, because Myodil had been in use for a long time in the USA and, if any problems had arisen with its use, there would have been litigation there. Dr Wong then returned to (A) with this information. (A) said that there were journal articles linking the use of Myodil to arachnoiditis. Dr Wong then asked (B) about this, and (B) told him, firstly, that there was probably some further unknown complication that caused the arachnoiditis and, secondly, that such cases must be very rare, or they would not be published in the literature. Dr Wong said that he decided to leave it at that. 48 On returning to Kuala Lumpur in 1972, Dr Wong, by virtue of his position as lecturer at the University of Malaysia, took up the position of staff specialist at the University Hospital. During this time he performed 300 - 400 myelograms, in relation to which his universal practice was never to aspirate the Myodil, but always to leave it in situ. Then, in 1975, he visited Concord Hospital, where he observed, for the first time, the aspiration of Myodil at the end of the myelogram procedure. Although he did not ask the specialists at Concord why they performed this extra step, Dr Wong decided to adopt the practice because Myodil was a foreign substance, and it was, therefore, as well to remove it so far as was practicable. On returning to Malaysia, he added this step to his procedure, and he retained this step as part of his usual practice when he came to Australia in 1976 to take up the position of staff radiologist at Sutherland Hospital. 49 Counsel for the plaintiff asked Dr Wong if he was aware of the link between Myodil and arachnoiditis in the late 1960s, at the time when he was told that instilling Myodil after a bloody tap could be dangerous. Dr Wong's evidence was that at that time he was not aware of the specific problem that could arise in that case, just that it was a dangerous practice which could cause the patient to have spinal problems. Later, in cross-examination, Dr Wong admitted that, by 1976, he was aware of journal articles linking the use of Myodil to arachnoiditis [Tr 807]: COUNSEL. By 1975 when you returned to Kuala Lumpur you had read material in journals such as the journals you have identified for His Honour earlier, in which arguments were being advanced about a connection between Myodil and arachnoiditis; that's right, isn't it? DR WONG. There were articles about a few patients that sought to link myelography with Myodil with inflammation of the arachnoid. 50 Later, the following exchange took place [Tr 817]: COUNSEL. I suppose you were interested in from at least 1976, you were interested to see how the debate, if I can put it that way, ran in relation to Myodil, given that you used the substance; isn't that fair comment? DR WONG. No, not really. I was more interested in technique of doing angiograms. . . . . . COUNSEL. I am not so much thinking about your technique as the debate, the controversy, about the effect, the ill-effects, if any, of Myodil being left in the subarachnoid space. You say to his Honour that in this period of 1976-1977 those issues were not ones that interested you as a radiologist who used Myodil? DR WONG. No. I was going to remove the Myodil anyway. 51 Counsel for the plaintiff next referred to the 1973 Myodil product information sheet (Exhibit G) and asked Dr Wong whether he was aware that the manufacturers recommended aspiration of Myodil at the end of the procedure. Dr Wong replied in the negative, but said again that, as his usual practice was to aspirate the Myodil, it made no difference [Tr 819].

[15]

Dr Wong's account of the myelogram 52 Dr Wong gave an account of his practice, as at 1977, in relation to performing a myelogram. He stated that, contrary to the plaintiff's evidence, it was his practice to give a warning of possible after-effects. He specified localised bleeding, headache and "meningismus" (which he explained as headaches, neck stiffness and possibly a slight temperature). He stated that he would offer to answer any questions that the patient might have, but that no patient ever asked him a question [Tr 798]. That was the extent of the information he said he gave to his patients. 53 As to the procedure itself, Dr Wong said he would then place the patient on their side, in the foetal position, and introduce the myelography needle into one of the intervertebral spaces in the lumbar region. Contrary to the plaintiff's recollection, Dr Wong stated that he always gave a local anaesthetic before performing the procedure [Tr 841]. 54 He also stated, contrary to the plaintiff's evidence, that he never used straps as described by the plaintiff [Tr 798]. Neither Dr Palmer, the radiologist who gave evidence for the plaintiff, nor Dr Cashman, the radiologist who gave evidence for the defendants, had ever heard of such a use of straps. 55 Dr Wong said he had no recollection of the plaintiff. It was his case, however, that he had a recollection of a case which, by inference, was this case. He said, as I have recounted, that it was his usual practice to leave the needle in place after the introduction of the dye and to aspirate as much of the dye as was reasonably practicable through the needle at the end of the procedure. He said that there was one case - and only one - in his time at Sutherland Hospital when he did remove the needle before taking the x-rays, and that was because the patient was in pain and distressed and asked for the needle to be removed. "I remember there was one patient who was very distressed after I introduced the Myodil. He was on his back, on his side with his back towards me and he was in pain and he said 'Take out the needle'. Fearing a sudden movement of the patient I put in the stylet and took out the needle. There was only this one incident." [Tr 790] 56 Dr Wong mentioned other cases where the needle had been withdrawn because of pain when he was attempting to aspirate the Myodil at the end of the procedure [Tr 797]. They were not cases where the needle was withdrawn during the procedure itself, precluding any attempt to remove the Myodil in the ordinary way at the end of the procedure. 57 Since the plaintiff's myelogram x-rays showed that the needle was not present when the X-rays were taken, it was Dr Wong's case, by inference, that the plaintiff was the one case and that he had removed the needle from the plaintiff's back, after introduction of the Myodil and before the X-rays were taken, because the plaintiff was in pain, distressed and asked for the needle to be removed. This, according to Dr Wong's case, accounted for the Myodil not having been removed in this instance, contrary to his usual practice. 58 In answer to further questions, Dr Wong said that he did not recall if the patient said he was in pain. He said the patient was agitated. Dr Wong said he was concerned the patient might injure himself by knocking the needle [Tr 861]: COUNSEL. Well now, coming back then to this recollection what do you recollect the patient doing or saying that gave rise to the alteration in your usual practice and just take it slowly? DR WONG. In my mind's eye? COUNSEL. In your mind's eye. DR WONG. There was one patient who was very agitated who says, "Doctor, take out the needle, take out the needle" so I took out the needle. COUNSEL. Is that all the patient said or did? DR WONG. I am not sure whether he say, "I am in pain" but he say "take out the needle" [sic] and was very insistent on that. COUNSEL. Well, in your mind's eye is there any body movement of the patient? Please only tell me what you see. DR WONG. I think there was some movement but I don't think he straighten out his body [sic]. . . . . . [Tr 864] COUNSEL. What was the immediate danger? DR WONG. He would turn on his back with this needle on his back. COUNSEL. Did he make any attempt to turn on his back? DR WONG. I thought he was going to do it. . . . . . COUNSEL. The patient up to this point had been totally co-operative; correct? DR WONG. Up to that point, yes. . . . . . [Tr 865] COUNSEL. It was important, from your point of view, that this patient, like every other patient, have the opportunity to have removed the Myodil; correct? DR WONG. At that time my immediate problem was to see that the patient did not injure himself. COUNSEL. But what was the evidence, what was the evidence that the patient was at risk of injuring himself there and then? DR WONG. The patient, if I remember correctly-- COUNSEL. Well, do you? DR WONG. Yes; he did not request, as you have put it, but insisted in a loud voice, practically shout [sic], "Take out the needle. Take out the needle". In fact you could call it hysterical. COUNSEL. You remember all of that, do you? DR WONG. I remember someone shouting. It was not saying "Please take out the needle", you know, is something that it frightens you [sic], I remember. COUNSEL. And doctor, in part of your last answer did you say or did you mean to say, did you, the patient did not say "Take out the needle", rather, the patient was just hysterical? DR WONG. No, he did say "take out the needle". 59 Dr Wong's explanation for the patient's behaviour was that he thought the patient was or might be having an anxiety attack [Tr 881]. When pressed by counsel for the plaintiff, Dr Wong conceded that this was a guess, and he could not remember having thought this at the time of the procedure [Tr 882]. I interpret this evidence as meaning that it is only in retrospect that Dr Wong thinks the plaintiff was having or might have been having an anxiety attack. That was his best explanation for what happened, 24 years after the event.

[16]

The plaintiff's account of new symptoms at and following the myelogram 60 In his evidence-in-chief, the plaintiff said that there was an onset of new symptoms at the instant the Myodil was injected, namely, a burning pain and heaviness in the buttocks and genital area which he described in the following terms [Tr 22]: COUNSEL. What was the difference once that, once the needle had gone in, what did you notice? PLAINTIFF. The first feeling - there was a burning sensation and a heaviness in between my legs and in my buttock area. The pain, sorry, the burning pain, because it's very different to the physical, the structural pain. COUNSEL. Do your best to describe for us in words what you are feeling, the difference. PLAINTIFF. The burning pain is like the worse case of sunburn you have had, or the hottest curry you have ever had. I think that was my little saying and it has never left me since that day. 61 The area described by the plaintiff as "between my legs and in my buttock area" was, as later appeared, a reference to the genitals and the perianal area. The nerves supplying those parts of the anatomy were, as explained by the neurosurgeons, Dr Dorsch and Dr Petty, the lower sacral nerves. This complaint by the plaintiff was therefore to be distinguished from Dr Dorsch's finding of involvement of the S1 and S2 nerve roots following the discectomy. 62 The time of onset of the burning pain described by the plaintiff was, however, put in doubt by subsequent evidence. Dr Dorsch said that, when examined by him on 14 September 1977, the plaintiff had "almost total sensory loss in the S1 to S5 distributions, including the left side of the penis and the scrotum". Dr Dorsch did not think that the sensory loss involving the lower sacral nerves, as distinct from the S1 and S2 nerves, could be attributed to Dr Vote's operation. And he thought the signs of involvement of the lower sacral nerves should be recognised as new because Dr Vote had earlier referred only to the S1 and S2 being involved. This placed the onset of lower sacral nerve involvement as being later than June 1977. 63 In the same vein, the plaintiff told Dr Lethlean in 1995 of a "heavy pressure like pain in the lower back" coming on at about the time of the discectomy. His symptoms at that time, he said, included a burning pain in the back and genital areas. That placed the onset of these symptoms at about 13 May 1977. 64 In 1997, the plaintiff told Dr Petty of "the groin burning feeling" coming on either before or after the discectomy. The context indicates it was at about that time. This was accompanied by "a heavy dragging feeling" and "he [the plaintiff] felt like he was on fire in the buttocks, the scrotum and 'under here'" (apparently a further reference to the perianal region). This is materially the same history as the plaintiff gave to Dr Lethlean. 65 In view of the evidence of later onset of genital and perianal signs and symptoms (to which I shall come), counsel for the plaintiff submitted that the court should reject the plaintiff's evidence that pain in that area first occurred at the myelogram, persisting thereafter. The plaintiff's case, as presented by counsel, was that it came on later, and is attributable to the development of arachnoiditis following the myelogram.

[17]

Treatment after 3 May 1977 66 The plaintiff was discharged from Sutherland Hospital on 8 May 1977 and went home for five days. He had contracted pneumonia while at Sutherland Hospital which made operating on the disc prolapse inadvisable at that time. 67 He was admitted to Kareena Private Hospital on 13 May 1977. On that date, Dr Vote performed the operation on his L4-5 disc, variously described as a laminectomy and as a discectomy. ("Laminectomy" refers to removal of the bone at the posterior end of the vertebrae - the lamina - to gain access to the disc, which is then removed.) 68 When he operated on the plaintiff, Dr Vote found almost complete herniation of the L4-5 disc, with compression of the dura, without the disc actually breaching the dura. He removed the disc, or a substantial part of it, without incident. He had no memory of having breached the dura himself during the operation. That, he said, would have made the procedure "an extremely difficult operation" [Tr 217], which this was not. 69 On 28 June 1977, Dr Vote wrote in a letter to Dr Jacob, the plaintiff's general practitioner: "[The plaintiff's myelogram] showed almost complete herniation of the total disc mass between L4-5 and subsequently this was removed at Kareena Hospital. His convalescence has been satisfactory, but he still has a minor chest problem. He has lost most of his back pain and all his leg pain already, but still has some numbness over the distribution of S1, S2." 70 At the time, Dr Vote considered that the numbness referred to in his report of 28 June 1977 was due to traction on the S1 and S2 nerve roots. He said that, during the operation, it would have been necessary to hold the dural sac to one side with a pair of retractors in order to completely remove the herniated disc material, and this may have caused slight damage to the nerve roots. Usually this type of damage resolves over time, he said. 71 The neurosurgeons, Dr Dorsch and Dr Petty, specified an area in the leg as being the distribution of the nerves which emerge at S1 and S2. 72 Dr Vote had the plaintiff's back re-screened by x-ray on 22 July 1977. He wrote, in a letter dated 1 September 1977 addressed to Dr Dorsch: "[The films] showed a large collection of Myodil opposite the L5 S1 area. I made arrangements at St. George Hospital to have him screened to try, if possible, to evacuate the material with a needle, but this was unsuccessful."

[18]

It was not disputed that there was such an attempt at removal of the Myodil at that time. 73 In the same letter, Dr Vote asked Dr Dorsch if the Myodil might explain some of the plaintiff's symptoms, and also whether Dr Dorsch would consider attempting further exploration and surgical evacuation of the Myodil. 74 Dr Dorsch saw the plaintiff on 14 September 1977, had him rescreened by x-ray on 20 September 1977 and operated on him on 2 December 1977. According to Dr Dorsch's report to the plaintiff's solicitors, dated 30 December 1993: "[O]n 2/12/77 I re-explored the area, doing a wider bony decompression. Severe extradural and subarachnoid fibrosis was noted. A loculated collection of Myodil was partially removed from the subarachnoid space. Pathological examination of a removed sample of extradural fat showed 'dense fibrosis with focal areas of vascular scar tissue'." (No significance was attached to the extradural pathology, as the plaintiff's case unfolded.) 75 Dr Dorsch explained that the operation had involved "a total laminectomy of L4-5" [Tr 551] which had allowed him to see the fibrosis mentioned above. The following exchange then took place [Tr 551]: COUNSEL. What's involved in that? DR DORSCH. And this, according to this it would be the L4 lamina and the L5 lamina both removed from the back to expose the dural sac over those two segments. If one is planning to do an exploration inside the dura one needs preferably several centimetres exposure of the dura so that one can open it up safely and be able to resuture it afterwards. So I would guess from this that 5 to 6 centimetres of the dural sac was exposed in a vertical sense. COUNSEL. And over what intervertebral disc levels is that five to six centimetres? DR DORSCH. That would in fact involve in the centre of the exposure the L4 / 5 disc space where the previous surgery had taken place, and then above it to the top of the L4 vertebral level close to the L3 / 4 disc space and below to the lower part of the L5 vertebral level close to the lumbosacral disc space. 76 The burden of this evidence was that Dr Dorsch removed the laminae from the L4 and L5 vertebrae (confirmed by later x-rays), exposing the dura over the extent of the two vertebrae. He opened five to six centimetres of dura and saw fibrosis in that expanse of the intradural space.

[27]

Association of arachnoiditis with Myodil 88 I refer again to the packing sheet issued by the manufacturer. It is evidence that post-myelography arachnoiditis has occurred in some patients following Myodil myelography and had so occurred as at 1973 when the sheet was issued. 89 There was reference in evidence to an extensive literature supporting the association between Myodil and post-myelography arachnoiditis. 90 Dr Lethlean's evidence on this topic was as follows. He reviewed a substantial portion of the literature, and was of the view that it demonstrated that around one per cent of patients who have Myodil instilled will contract Myodil-related arachnoiditis. He did concede, however, that some neurologists held the view that the frequency was much less than one per cent, and that this was a reasonable view to take. He himself had diagnosed an estimated 30 cases of Myodil-related arachnoiditis during the 1960s and early 1970s. 91 Professor Palmer's evidence was as follows. According to his report, in which he summarised some of the available literature, studies in the 1940s and 1950s indicated an incidence of clinically significant arachnoiditis following Myodil myelograms of less than one per cent. He also stated that the risk of symptomatic arachnoiditis following a Myodil myelogram increases significantly if blood is also present in the CSF. He did not disagree with a passage quoted from a later article (Long DM (1992) "Chronic Adhesive Spinal Arachnoiditis: Pathogenesis, Prognosis, and Treatment", Neurosurg Q 2(4), 296 - 319; Exhibit 6), which placed the figure of those who contract arachnoiditis after a Myodil myelogram at substantially less than one per cent. 92 Dr Wong's evidence was that he was aware of a putative link between arachnoiditis and Myodil myelography. The circumstances of his having become aware of this have already been discussed. He offered no further evidence on the topic. 93 Dr Petty was of the opinion that a causal association between Myodil and arachnoiditis, even in a small proportion of cases, has not been scientifically established. He has made a review of the literature and believes that all cases and reviews which suggest such an association can be explained, with at least equal consistency, by some other possible cause. His was a lone voice in this regard. 94 Dr Cashman's evidence was that Myodil could have a number of known toxic effects, including arachnoiditis. In his report, he stated that the literature placed the risk of symptomatic arachnoiditis at only a fraction of one per cent, and his opinion was that removal of the Myodil did not necessarily protect the patient from the risk. In cross-examination, he conceded that some of the articles he referred to claimed that the frequency of symptomatic arachnoiditis was much higher than a fraction of one per cent, and agreed that the longer Myodil is left in situ the worse any sequelae such as symptomatic arachnoiditis will get. 95 With regard to the above evidence, I make the following findings: · Myodil myelography resulted in symptomatic arachnoiditis of varying degree in a small proportion of cases, at most one per cent or thereabouts; · The more Myodil that was retained and the longer it was retained, the greater the risk of arachnoiditis; · The risk of arachnoiditis was significantly increased by bleeding into the subarachnoid space; · The risk of arachnoiditis from retained Myodil was therefore increased by a subsequent lumbar puncture which carried a risk of a bloody tap in the order of two to four per cent (see previous section on bloody tap).

[28]

Knowledge as at May 1977 concerning association of arachnoiditis with Myodil 96 Again, the packing sheet issued with the product asserted such an association as at 1977. 97 Dr Lethlean's views on this matter were substantially as stated in the previous section. He stated that, in 1977, the literature suggested that the frequency of symptomatic arachnoiditis following Myodil myelograms was in the order of one per cent, although he conceded that it would have been open to a reasonably competent neurologist exercising reasonable care and skill to hold the view that the figure was substantially less than one per cent. 98 Dr Palmer was of the view that a reasonably competent radiologist exercising reasonable care in May 1977 should have been aware of the existence of a link between Myodil myelograms and symptomatic arachnoiditis. According to his recollection, he was unsure whether the level of risk had been accurately quantified at that time. He maintained this view throughout cross-examination, notwithstanding a statement from a 1977 textbook (Murray RO & Jacobson HG, The Radiology of Skeletal Disorders: Exercises in Diagnosis Vol I (2nd Ed.) (Churchill Livingstone: Edinburgh, 1977) at 365; Exhibit 18) which claimed that Myodil was almost non-toxic, with which he strongly disagreed. 99 Dr Wong's views in this matter were as stated in the previous section, and earlier in this judgment. 100 Dr Petty was the sole expert who did not accept that Myodil myelography was causally linked to arachnoiditis. In 1977, his view was that leaving Myodil in the subarachnoid space may have had a minuscule risk to the patient. He did not express a view on what the medical profession thought about the possible link between Myodil myelography and arachnoiditis in 1977. 101 Dr Cashman's views in this matter were substantially as stated in the previous section. In cross-examination, he accepted that the overwhelming weight of medical literature and learning in 1977 was that Myodil inflamed arachnoid tissue and caused, in many patients, radiological arachnoiditis (ie arachnoiditis visible on x-ray examination). He also agreed that it was known that, in some cases, the condition could result in symptoms. 102 I make the following finding: · The risk of contracting arachnoiditis from Myodil myelography were known in 1977 to radiologists of ordinary skill and competence exercising reasonable care to keep themselves informed.

[30]

106 The article shows that the practice, in what was, according to Professor Palmer, a well-regarded English institution, was to use a larger volume of Myodil than he mentioned in his report and not to aspirate it after the procedure. The eight millilitres volume specified in the article is in fact the same amount which Dr Wong habitually used at Sutherland Hospital, and which was used on the occasion in question. 107 Professor Palmer's practice was always to attempt to aspirate the Myodil. In his report he cited literature that stated that it was possible to retrieve 99 to 100 per cent of the Myodil on a regular basis. He claimed for himself total removal in 90 per cent of cases and partial removal in ten per cent. 108 He acknowledged, however, that, notwithstanding his practice and opinion, in 1977 it would not have been unreasonable not to attempt to aspirate the Myodil at the end of the procedure. I was impressed with this concession by a very experienced and highly qualified radiologist, who was frankly critical when he thought criticism was due. I refer to his evidence on this topic in further detail [Tr 530]: DR PALMER. Well as you indicated, my view at the time was obviously that it should be removed, but I do accept that there would be radiologists at that time who would have said the Myodil can presumably be left safely. COUNSEL. And that that would be, in 1977, a point of view that was available to a radiologist, exercising reasonable care and skill; you agree with that? DR PALMER. Yes. And later [Tr 536], he said: "Whether it was reasonable, it's very difficult with the hindsight of so many years to say at the time if somebody put that proposition to me to say yes, that is reasonable, without saying but have you not read the article and so and so? I think reasonable is perhaps a judgment that should be left to your profession and not mine." (Professor Palmer was referring to the passage from the 1977 textbook by Murray & Jacobson (Exhibit 18) previously referred to which stated that Myodil was almost non-toxic.) I do not read this part of Dr Palmer's evidence as a retreat. He was saying he had his own view about the matter but he preferred the court to carry responsibility on the issue. That is understandable. 109 Dr Wong's practice was always to attempt to aspirate the Myodil. The reasons for his adopting this practice have been described above. As previously stated, he held the view that, as Myodil was a foreign substance, it was better to try to remove it than leave it in situ. He claimed a success rate of roughly 50 per cent removal in 50 per cent of cases, 75 per cent removal in 25 per cent of cases, and sometimes none at all. 110 Dr Petty's practice was always to attempt to aspirate the Myodil, but he did not consider it very important to remove all of the dye. In addition to performing Myodil myelograms himself, he observed radiologists performing them in the period from about 1967 to about 1977 and noted a range of techniques; some would aspirate, others would not [Tr 976]. He was aware of a debate amongst radiologists during this period about the pros and cons of aspirating, and was aware that towards the end of that period, more radiologists favoured aspiration than did not. 111 Dr Cashman's practice was always to attempt to aspirate the Myodil. His experience, as outlined in his report, was that total removal was possible in well under half of his patients, perhaps only 25 per cent of them. He estimated that in around a third of his patients, he left "probably a half or more" of the Myodil in [Tr 1059]. 112 I find: · Practice and opinion varied considerably in 1977 as to whether Myodil should be aspirated in the ordinary course at the end of a myelogram procedure; · It was the practice in of a substantial and respectable body of radiologists in 1977 not to aspirate Myodil at the end of the procedure.

[34]

Causation 118 In March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506, Deane J (at 524) quoted with approval the remarks of Lord Reid in Stapley v Gypsum Mines Ltd [1953] AC 663, 681: "The question [of 'what caused an accident from the point of view of legal liability'] must be determined by applying common sense to the facts of each particular case. ... I doubt whether any test can be applied generally." The meaning of "common sense" in this context was elucidated by Deane J (at 522): "[T]he question of causation arises in the context of the attribution of fault or responsibility: whether an identified negligent act or omission of the defendant was so connected with the plaintiff's loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it (cf. Barnes v Hay (1988) 12 NSWLR 337, at p339). The 'but for' (or causa sine qua non') test may well be a useful aid in determining whether something is properly to be seen as an effective cause of something else in that sense". And (at 524): "[T]he question whether conduct is a 'cause' of injury remains to be determined by a value judgment involving ordinary notions of language and common sense." [Emphasis added] 119 The "but for" test is, therefore, not always a necessary or a sufficient test for causation in law. In other words, notwithstanding that the harm would not have eventuated but for the defendant's breach of duty, there may be no causation in legal concept. Similarly, notwithstanding that the harm might have happened anyway, there may be causation in legal concept. "But for" is relevant, but causation in law also involves a normative judgment as to whether it is fair and reasonable to attribute the harm to the breach in the context of a claim for compensatory damages. 120 A failure to warn case always involves a question as to whether the plaintiff would have acted differently if the relevant information had been provided. The prospective mental act of the plaintiff is a necessary link in the chain of causation. That is to be decided on a balance of probabilities. In Sellars v Adelaide Petroleum (1994) 179 CLR 332, the following statement appears (at 353): "The distinction between proof of causation and damages was emphasized in Hotson v East Berkshire Area Health Authority [1987] AC 750. There Lord Ackner stated that the first issue that fell to be determined was that of causation. This was to be determined on the balance of probabilities. Once liability was established, the assessment of the plaintiff's loss could proceed, taking into account any reductions arising from the uncertainty of future events (ibid., at 792-793; see also at 782-783 per Lord Bridge of Harwich). When the issue of causation turns on what the plaintiff would have done, there is no particular reason for departing from proof on the balance of probabilities notwithstanding that the question is hypothetical." 121 That approach has been applied in relation to actions for medical negligence based on failure to warn. In Tran v Lam (Supreme Court, 20 June 1997, unreported) Badgery-Parker J said that "it would be inconceivable that the law should allow a plaintiff to recover merely upon establishing (which would mean no more than asserting) that, given the chance, he, she or it may have acted in a particular way." 122 The same approach was adopted in Green v Chenoweth [1998] 2 Qd R 572, where Pincus JA (at 576), citing Hotson (supra), observed that the approach conforms with the settled law relating to causation of damage in actions for deceit "where there is no liability without proof that the plaintiff acted on the lie". 123 A special problem may arise in relation to evaluation of evidence in a failure to warn case if the issue of causation turns on the reliability of the plaintiff's evidence as to what he or she would or would not have done had the relevant information been provided. The American courts have avoided the problem by adopting an objective test (ie what a reasonable person would or would not have done) but, in Australia, the test is subjective (ie what the particular plaintiff would or would not have done). In Chappel v Hart (1998) 195 CLR 232, Kirby J said(at [93]): "The subjective criterion involves the danger of the 'malleability of the recollection' even of an upright witness (as Mahoney P observed in the Court of Appeal in this case, Chappel v Hart (unreported: NSW Court of Appeal; 24 December 1996) at 7 ; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 560). Once a disaster has occurred, it would be rare, at least where litigation has commenced, that a patient would not be persuaded, in his or her own mind, that a failure to warn had significant consequences for undertaking the medical procedure at all..." Similar observations were made by Samuels JA in Ellis (supra) (at 581). In the same vein, Callinan J said in Rosenberg v Percival [2001] HCA 18 (at [221]): "It is perfectly understandable that a person who has suffered what the respondent suffered would say, and might even come to believe implicitly that she would not have had the operation had she known of the risk which has in fact materialised. That would usually be, and it probably was her honest belief... However, the true position is much more likely to be, no matter what a plaintiff may have honestly come to believe, that she cannot really say, in an absolute way, that she would not have had the operation." 124 It seems, however, that this difficulty is eased somewhat by what was said in Chappel v Hart concerning burden of proof. McHugh J said (at [34]): "[T]he onus of proving that the failure to warn was causally connected with the plaintiff's harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists." Kirby J (at [93]) said: "[T]he realistic appreciation of the imprecision and uncertainty of causation in many cases... has driven courts in this country... to accept that the evidentiary onus may shift during the hearing. Once the plaintiff demonstrates that a breach of duty has occurred which is closely followed by a damage, a prima facie causal connection will have been established. It is then for the defendant to show, by evidence and argument, that the patient should not recover damages." [Emphasis in original] Whether Gaudron J (at [10]) and Gummow J (at [68]) went further does not need to be resolved here. 125 Such a shifting of the evidentiary burden of proof was followed in Shead v Hooley [2000] NSWCA 362, where Davies AJA said (at [69]): "Once it was shown that there was a failure on the part of Dr Shead to warn Ms Hooley of the risk of gastroparesis and that Dr Shead breached his duty of care towards his patient in failing to warn her of the risk, and once it was shown that the risk eventuated, then the law as enunciated in Chappel v Hart is that the breach of the duty should be treated as materially causing or contributing to the injury unless good reason to the contrary is shown." In the present case, no problem arises concerning the reliability of the plaintiff's evidence under the subjective test as to what the plaintiff would or would not have done. Nor is any subtlety required in relation to the evidentiary burden of proof. That is because, in the present case, as will appear, there is no doubt as to what the plaintiff's response would have been to the ultimately relevant information or as to what would then have happened or not happened in relation to his medical treatment.

[44]

Was there a breach of duty in failing to inform and / or advise the plaintiff and / or the plaintiff's clinical team as alleged after the myelogram? 135 This issue relates to the situation which had arisen. The needle had been removed, after the Myodil was introduced, because of the plaintiff's pain and distress. What, if anything, should then have been done about the Myodil which was in the thecal sac at the end of the procedure? 136 None of the witnesses said that a second lumbar puncture should have been done there and then. The only option under serious consideration in the proceedings was whether Dr Wong should have brought the situation to the plaintiff's or the plaintiff's physician's attention and advised in the manner alleged in the "Issues" document, paragraph 2(c) (above). 137 The evidence on this issue includes reference to a radiologist of ordinary skill and competence exercising reasonable care in 1977. In the review which now follows, I will refer to such a radiologist as "the hypothetical radiologist". 138 Once again, I refer to the insert sheet which the manufacture included with the product. As mentioned previously and as appears in my quotation from the documents, the sheet states that most considered it reasonable, when only small amounts were involved, not to aspirate if this required another lumbar puncture. What was meant by "small amounts" is not stated. 139 Dr Lethlean was not asked about and gave no evidence on what advice Dr Wong ought to have given the patient or the treating clinician about the Myodil retained in the patient's subarachnoid space or as to any practice in that regard. His view was that it was better to attempt to reaspirate the Myodil for a patient in the plaintiff's situation. However, he agreed that, in the 1970s, it would have been reasonable for the hypothetical radiologist to hold the view that it was better for the patient not to reaspirate Myodil which had been left in situ, although he was not sure whether this would have been so specifically in 1977. 140 Professor Palmer's evidence was that it was his practice always to record that Myodil remained in the patient's subarachnoid space, and to suggest that a further attempt be made to aspirate. 141 What would necessarily have been done by the hypothetical radiologist was addressed in cross-examination. Professor Palmer was of the opinion that such a radiologist would have informed the clinician that the Myodil had not been aspirated by recording that this was the case. [Tr 465, 467]. But his view about whether the hypothetical radiologist would have gone on to advise removal was otherwise. He said, in that connection [Tr 468]: "But at that time in 1977 I would have thought it certainly wasn't mandatory, from the point of view of standard of care." 142 This conformed with the view which Professor Palmer had expressed earlier in cross-examination, that it was not unreasonable in 1977 for the hypothetical radiologist to have held the view that Myodil could be safely left in the subarachnoid space. 143 It is again a matter of considerable significance that this very experienced and highly qualified specialist radiologist did not think it was mandatory to advise retrieval of Myodil left in situ in the circumstances that occurred. His reasons for that view appear in his evidence. No-one really knew whether aspiration of Myodil would help avert the risk of arachnoiditis once it had been introduced [Tr 539]. There was no study demonstrating that aspiration made any difference [Tr 540]. The success rate in aspiration varied [Tr 547], so there was assurance that attempted aspiration at a future date would be successful. Apart from the risk of blood being introduced by a bloody tap at the commencement of an attempt to recover the Myodil (which would require abandonment of the attempt and would enhance the risk of arachnoiditis), there was the risk of bleeding being produced within the thecal sac as a result of manoeuvring the needle during the attempted aspiration [Tr 525, 538]. An additional lumbar puncture increased the risk of infection [Tr 458]. There was also the additional exposure to radiation, because the recovery procedure was carried out under X-ray monitoring [Tr 454]. 144 Whether it was preferable to attempt removal of the Myodil at a later date, where the agent had been left in situ at the original procedure, involved weighing up the doubtful prospect of eliminating or reducing the risk of arachnoiditis against the countervailing considerations which arose in relation to such a later attempt. It is not surprising that Dr Palmer thought professional opinion could vary legitimately as to whether any such attempt should be made. 145 Dr Wong was not of the opinion that he needed to alert the patient's managing clinician to the continuing presence of Myodil in the patient's subarachnoid space. He denied that the hypothetical radiologist would have done so. He would not have. 146 Dr Wong said he would not have advised an attempt to aspirate the dye, if asked for his opinion by the patient and / or his physician, because of the risk of a bloody tap [Tr 875]. It will be necessary to refer to this evidence later in greater detail in relation to causation of damage. At this stage, I note the evidence as a further opinion (implicit in this instance) that the hypothetical radiologist would not have advised aspiration of the Myodil in the circumstances that had arisen. 147 Dr Petty also stated that he would have advised against reaspiration of Myodil in 1977, again because of the risk of a bloody tap, and because the dye may have been needed again for rescreening. He was not asked whether this would have been reasonable practice for the hypothetical radiologist, but I infer from his evidence that this was his opinion. 148 Dr Cashman's practice was not to explicitly note that Myodil had not been removed. His practice and that of his partners was to take a final x-ray after removing the myelography needle, which would show the amount of Myodil remaining in the subarachnoid space [Tr 1059]. He would then write on the film "after attempted aspiration" or "after aspiration" so that the managing clinician would know whether and how much Myodil remained in situ. Dr Cashman's practice was never to advise aspiration, because he believed the risk of a bloody tap outweighed the risk to the patient of leaving the Myodil in. Although Dr Cashman was not asked whether this would have been the view of the hypothetical radiologist, it can be assumed that he thought so. 149 No expert witness expressed an opinion that, in the circumstances that had arisen, the hypothetical radiologist would have informed the plaintiff himself, as distinct from his clinician, that Myodil remained in situ or would have given the plaintiff advice without the involvement of Dr Vote. Dr Wong was a diagnostic consultant brought in by Dr Vote to assist him in the management of the case. It is one thing for Dr Wong having possibly been under a duty to inform the plaintiff of the risk of arachnoiditis before the procedure as an obligation incidental to carrying out the procedure. But once the procedure was completed, the management of any complication that arose was Dr Vote's responsibility, perhaps involving Dr Wong, perhaps not. It was then a matter for Dr Vote what the plaintiff should be told and by whom. In final address, the plaintiff's counsel conceded that no advice would have been given by Dr Wong to the plaintiff without Dr Vote's involvement and, indeed, that Dr Vote would have been Dr Wong's first point of contact if any such advice was to be proffered. 150 I make the following findings: · Dr Wong was not in breach of duty in failing, after the myelogram, to inform the plaintiff himself that Myodil had been left in situ. · The failure of Dr Wong to inform the plaintiff's managing clinician, Dr Vote, by a note in the medical records or in his report, that Myodil had been left in situ was in breach of duty. · Dr Wong was not in breach of his duty to the plaintiff in holding the opinion that the Myodil should be left in situ. · Therefore, Dr Wong was not in breach of his duty to the plaintiff in failing to advise the plaintiff and / or Dr Vote that the Myodil should be aspirated.

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(c) That the failure to inform the plaintiff's clinical team after the myelogram, as alleged, had the same result as in (b). 154 I have not included the plaintiff's assertion that failure to advise the plaintiff and / or his clinical team to have the Myodil removed as soon as practicable. That issue is resolved against the plaintiff by my finding that there was no breach of duty in failing to advise. 155 As to the causal relationship asserted in (a) above, the plaintiff contends that if he had been informed prior to the myelogram of the risk of arachnoiditis and of the risk in that regard of failing to remove the Myodil at the end of the procedure he would have comported himself differently with the result that Dr Wong would not have been constrained to remove the needle as and when he did. I do not accept that argument. The plaintiff has not satisfied me that, if warned of the need to allow the needle to remain in place in order to avoid or minimise a risk of arachnoiditis, he would have been able to tolerate the pain he suffered more effectively or control the outward expression of such pain or that he would have been less anxious or able to control the outward expression of anxiety. In short, I am not satisfied that, if the plaintiff had been informed before the myelogram, as it is alleged he should have been, that would have avoided removal of the needle as and when that occurred. The chain of causation breaks down at that point. 156 There is another point in a similar vein which I mention here, although not in logical sequence. The plaintiff asserts that when he became distressed by pain, Dr Wong ought to have administered an analgesic and that this would have avoided any need or perceived need to remove the needle as and when that was done. There was no expert evidence that an analgesic should have been administered or that an analgesic would have worked quickly enough to have made a difference. I am not satisfied that it was unreasonable for Dr Wong to have removed the needle as and when he did by reason of any consideration advanced on behalf of the plaintiff. 157 The causal relationship asserted in (b) and (c) above requires, for its consideration, reference to evidence on a theme not yet reviewed. I will deal with that theme and return to the causation issue.

[49]

Dr Vote's prospective role in any decision whether to undergo a further procedure to remove the Myodil. 158 In his witness statement of 21 January 2001 (Exhibit B), the plaintiff said: "11. Had I have been warned that there was a risk that I would suffer arachnoiditis or adhesive arachnoiditis or another condition which would result in chronic pain as a result of the myelography procedure then I would have refused to have had the myelography, until such time as I had been given an opportunity to discuss the need for the procedure with my treating orthopaedic surgeon Dr Vote, who had been treating me in the months previous to my admission to the Sutherland Hospital for a lumbar disc prolapse." 159 As I have mentioned, counsel for the plaintiff made plain in final address that the plaintiff did not press a case that he would not have had the myelogram at all if he had been informed as it was alleged he should have been. However, the passage is evidence that the plaintiff would have looked to Dr Vote for advice about his management. There was more evidence in the same vein. 160 If told that the radiologist might decide it was preferable to remove the needle and leave the dye inside rather than leave the needle in place with a view to removing the dye at a later stage in the procedure, the plaintiff said he would have wanted to discuss that with Dr Vote. If Dr Vote had told him that, notwithstanding the risks of the myelogram, the procedure should be carried out, the plaintiff said he would have followed Dr Vote's "instructions" [Tr 165]. If Dr Wong had told him in advance that he might decide to take out the needle because of pain, leaving the dye in and giving rise to a possibility of arachnoiditis, the plaintiff said he would have spoken to Dr Vote [Tr 165]. There is other evidence that he would have followed Dr Vote's advice in other various hypothetical situations [Tr 165 - 166, 173]. The plaintiff has agreed he had faith in Dr Vote [Tr 195]. 161 There is the following evidence, directly in point [Tr 245]: COUNSEL. Mr Morrison, as I understand it, your evidence has been that in the event of you having been made aware of the possibility of significant symptoms being suffered by you in the event of Myodil being allowed to remain in your spine following the myelogram, you would have gone to see Dr Vote about it? PLAINTIFF. That's correct. COUNSEL. And that because of the faith that you had in Dr Vote, you would have followed his advice? PLAINTIFF. That's correct. COUNSEL. And so had he advised you that you were in good hands by undergoing the myelogram procedure at Sutherland Hospital and that you should, in effect, have faith in the advice that you received from the radiologist, that is something that you would be content with? PLAINTIFF. If I had been given that information, yes. 162 Nothing could be more expected. I do not doubt that, if any question arose concerning his management, the plaintiff would have asked his clinician, Dr Vote, for advice and would have followed that advice. Absent direct evidence, I would have made that finding as a matter of inference. 163 Dr Vote's evidence was, in effect, that he would have advised the plaintiff to rely on Dr Wong's advice in relation to anything to do with the myelogram. The following are extracts from his evidence: [Tr 230] COUNSEL. I take it that you ordered this myelogram knowing that it would be carried out at Sutherland Hospital and the fact is that you had faith in the radiologists that carried out such procedures at that hospital at the time? ... DR VOTE. Yes, I would have had confidence in the X-Ray Department and the Radiological Department. COUNSEL. You would agree with me, wouldn't you, that at the time when you ordered the myelogram of this type in your view the technique in all matters pertaining to the procedure of the myelogram were matters that were the responsibility of and in the hands of the radiologist? DR VOTE. Yes. COUNSEL. And in that regard as to matters of technique and procedures you would defer to the opinion of the radiologist? DR VOTE. Yes, I would have no say. COUNSEL. And that you had faith that the radiologist who would be engaged by the Sutherland Hospital at the time would go about in terms of technique and the like in performing this myelogram that you had ordered for Mr Morrison, that they would go about it in a reasonable and competent way? DR VOTE. They are professionals at their work. . . . . . [Tr 234] COUNSEL. Doctor, if before the myelogram procedure Mr Morrison had come to you expressing some concern about the possibility of Myodil remaining within the subarachnoid space, not being aspirated immediately after the myelogram that you had ordered, or immediately at the conclusion of the myelogram that you had ordered for him at this time, because of the possibility of significant long term problems, would it be correct to say that you would have told him that he was in the hands of a radiologist and that you would be confident that the radiologist at Sutherland Hospital would be able to properly advise him about the best course to pursue or follow in that regard? DR VOTE. If those circumstances arose, I would refer him to the radiologist. . . . . . [Tr 234] COUNSEL. You would in effect say to him, "Look, I can understand your concerns about long term problems about the Myodil being allowed to remain in the subarachnoid space at the completion of the myelogram but the radiologists at Sutherland Hospital are professionals. They know what they are doing. You should go and talk to them about it"? DR VOTE. That would have been my approach, yes. . . . . . [Tr 234] COUNSEL. You certainly wouldn't have told him or warned him about the possibility of any risk of there being a problem of significant long term pain of any type if the Myodil were allowed to remain within the subarachnoid space at the completion of the myelogram? DR VOTE. I was probably not aware of it at the time. . . . . . [Tr 242] COUNSEL. In 1977 did you have a view as to the risk of significant ongoing pain arising out of a Myodil myelogram, particularly where the Myodil had been allowed to remain within the subarachnoid space? DR VOTE. No, not a formed opinion, no. 164 Again, nothing could be more expected. Dr Wong was the relevant expert. Dr Vote would have referred to him any questions concerning the plaintiff's management which fell within the expertise of a specialist radiologist. Again, I would have made that finding by inference in the absence of direct evidence. 165 It is at this point in the analysis that I record Dr Wong's evidence as to what his advice would have been. The evidence is predicated on a meeting with the plaintiff and Dr Vote but that is not the critical factor [Tr 874]: COUNSEL. Doctor, assume that there is a meeting for which there is present Mr Morrison, yourself, and Mr Morrison's treating orthopaedic surgeon? DR WONG. Yes. COUNSEL. And assume that Mr Morrison expresses a view that he would prefer the Myodil to be removed? DR WONG. (Witness nodded). COUNSEL. And assume that Mr Morrison's treating orthopaedic surgeon ultimately left this question to you, from the point of view of a medical practitioner, you being the radiologist? DR WONG. (Witness nodded). COUNSEL. In effect the treating orthopaedic surgeon saying, "Well, look, the best person to advise you is Dr Wong, the radiologist". What, as at 4 May 1977, do you say would have been your recommendation to Mr Morrison against the background of his wish to have the Myodil removed? DR WONG. I would say that - put it this way, I would advise against it. COUNSEL. And if you told him why, what would those reasons be? DR WONG. Because I may do a bloody tap, I may introduce blood into the subarachnoid space. COUNSEL. "I will introduce"? DR WONG. I may. Furthermore, I may not remove all the Myodil, or most of the Myodil, as the case may be. COUNSEL. And having identified those two matters do you say that the advice, the recommendation, you, as a competent radiologist, exercising reasonable care and skill, would have given to Mr Morrison as a patient, who wanted this out of his back, your recommendation would have been to leave it there? DR WONG. Yes. 166 As found earlier in this judgment, such advice would have been consistent with that of a specialist radiologist of ordinary skill and competence exercising reasonable care.

Morrison v Wong & Anor

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Cases Cited (10)

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