Old v Miniter

Applicable law

1. During the course of the hearing it became apparent that, in formulating their respective positions in the litigation, the legal advisors for both the plaintiff and Dr Miniter had incorrectly structured their expert evidence in the mistaken belief that the provisions of the Civil Liability Act 2002 (NSW) ("CL Act") governed the proceedings, when as a matter of law, that was plainly not so.
2. After that error was drawn to the attention of the parties (T173.50 - T174.1), they acknowledged that they were required to restructure their approach to the issues in dispute. This was because the proceedings are governed by the lex loci delicti, which in this case, is the substantive law comprising the Civil Law (Wrongs) Act 2002 (ACT) ["CLWA"]; John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, at [100]. Given the stage the evidence had reached at that point, a practical course was taken in the further running of the case in that neither party sought to introduce fresh or amended expert reports to refocus on the newly confined issues.
3. At this point it is relevant to observe that the CLWA contains some materially different provisions when compared to the provisions within Pt 1A of the CL Act (NSW). Foremost amongst those differences, first, is that the CLWA has no equivalent provision of a sheltering defence to professional negligence proceedings as may be afforded by s 5O of the CL Act (NSW) where that latter Act might apply, and secondly, damages for non-economic loss must be assessed on common law principles rather than on the basis of a sliding table of percentage impairment in comparison to a most extreme case, as provided by s 16 of the CL Act (NSW).
4. Therefore, because of the first of those differences concerning the determination of the liability issues, aspects of the expert evidence that formerly influenced the approach taken by the legal representatives of both parties on the issue of what might have constituted competent peer professional practice in Australia, within the meaning of s 5O of the CL Act, were no longer of determinative relevance to the proceedings, contrary to what had been initially assumed by the legal representatives of the parties.
5. The parties then proceeded to reformulate their respective approaches and arguments in accordance with the identified practical course. The cost consequences of those circumstances are a matter to be considered by a Costs Assessor in due course.

Issue 3 - The relevant risk of harm

1. Before considering the question of whether or not Dr Miniter was in breach of the duty of care that he owed to the plaintiff, it is necessary to first identify the relevant risk of harm: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [60], [62]; Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1; [2015] NSWCA 90, at [98].
2. In accordance with authority, I recognise that the relevant risk of harm should not be formulated too precisely or narrowly. Instead, it must be seen to be a generally broad concept that is not confined to the particular hazard that ultimately caused the harm. The formulation of the risk of harm should allow for a range of prospectively foreseeable contingent circumstances that might flow from the activity in question which also encompasses the particular hazard which is the subject of the litigation: Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320, at [118]; Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124].
3. The submissions made on behalf of Dr Miniter in relation to the relevant risk of harm asserted that "Regrettably", the plaintiff's submissions proceeded on the basis of an unpleaded notion of a failure by Dr Miniter to remove redundant hardware shortly after 4 August 2010: Defendant's written submissions, par 32. I do not accept the aptness of that submission as it overlooks the fact that the plaintiff's pleaded case includes an allegation of a failure in August 2010, "or thereafter", to remove hardware.
4. On behalf of the plaintiff it was submitted that the relevant risk of harm was the risk of infection in the right ankle as a result of failure to remove the redundant tightropes and medial EndoButtons, as at 4 August 2010, or shortly thereafter, following the cultivation of a few different types of bacteria in June and August 2010: Plaintiff's written submissions, par 22.
5. It was also submitted on behalf of the plaintiff that the risk of infection in the right ankle following the isolation of four different bacteria from the surgical wounds on 30 June 2010 and 4 August 2010 in the presence of retained hardware was a foreseeable risk that was not insignificant: Plaintiff's written submissions, par 75.
6. I consider that the particular circumstances of this case, which involved a defined surgical procedure that was carried out on 4 August 2010, and which had a range of potential knock-on adverse consequences, including the risk of complications from infection, make it difficult to strike a balance between avoiding undue specificity on the one hand, and undue vagueness or generality in identifying the relevant risk of harm on the other hand. In those circumstances, it must be recognised that there is no "right" formulation: Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320, at [119]; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [59].
7. In this case, recognising the required statutory context, I find that the relevant risk of harm within the meaning of s 43 of the CLWA was that where, on 4 August 2010, an operating orthopaedic surgeon in the position of Dr Miniter made a considered intra-operative decision to intentionally leave selected redundant components of surgical fixation hardware in situ, these being redundant ankle syndesmosis stabilisation components, rather than removing them after they no longer served a purpose, the consequences of such a decision could foreseeably pose additional and "not insignificant" risks for patient infection beyond what might be considered to be the ordinary risks of intra-operatively or post-operatively acquired infection. I also find that such risk of harm arose on 4 August 2010, and it continued to apply thereafter, for so long as the redundant elements of hardware remained in situ.
8. In such circumstances, the materialisation of such an additional risk of infection could foreseeably occur randomly, above and beyond what might be considered to be ordinary risks of infection. This is because, at the time, it was fundamental and well understood in the practise of orthopaedic surgery, that redundant fixation components, if not removed within a reasonable time after no longer serving a purpose, could become a harbinger that enabled harmful infection to accrue, and to develop into osteomyelitis, and spread, with the potential to cause damage to surrounding bodily tissues.
9. In those circumstances, reasonable care required the exercise of due skill, care, and professional consideration, including taking the time to communicate with the patient and with other practitioners having a relevant interest, as to what if any further professional activity ought to be taken in the nature of prudent precautions against such additional risks, whilst also having due regard to the potentially serious and harmful infection consequences for the patient, if such precautions were not taken.

Issue 4 - The duty of care owed and its scope and content

1. There is no dispute that in the context of the existing doctor and patient relationship, Dr Miniter owed the plaintiff a duty of care. The standard of care that was required in this case is identified and defined in general terms by s 42 of the CLWA, which provides as follows: 42 Standard of care For deciding whether a person (the defendant ) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
2. Expert evidence will generally provide assistance to guide the determination of what steps a reasonable person, being a specialist orthopaedic surgeon in the position of Dr Miniter, ought to have taken in the circumstances in the discharge of the duty of care that was owed. Although expert evidence is unquestionably relevant to that question, expert evidence is not necessarily determinative of that question, especially in this case, because the ACT CLWA has no equivalent provision to s 5O of the CL Act (NSW).
3. Dr Miniter accepts that he owed the plaintiff a duty to take reasonable care in connection with the operation. In the context of Dr Miniter's specialist medical treatment of the plaintiff, the scope and content of that duty is determined by the specialised knowledge he had or ought to have had on matters concerning the risks of, and the management of, surgically acquired infection, and its causes: Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 ("Stavar"), at [102] - [103].
4. In this case, the determination of the scope and content of Dr Miniter's duty of care is predicated upon first, the foreseeability of harm from the potential for infection to occur following surgery, and secondly, the nature of that possible harm, which could potentially be serious: Stavar, at [103]. Attempts at an exhaustive analysis of the range of potential harms in particular, is an unnecessary exercise: Stavar, at [104].
5. In the context of a doctor and patient relationship, it is long well settled in applicable common law principles that such a relationship gives rise to a duty of care, as has been authoritatively stated in Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58, at [5]: "The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment" ((2) Sidaway v. Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871, per Lord Diplock at p 893); it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case ((3) Gover v. South Australia (1985) 39 SASR 543, at p 551.). It is of course necessary to give content to the duty in the given case."
6. The content of the duty of care owed must be defined in the context of the case at hand: Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18, at [7] and [63]. In this case, plainly, the scope of the duty of care Dr Miniter owed to the plaintiff was to take reasonable precautions against the risk of harm from infection when treating the plaintiff in the context of a decision to leave redundant hardware components in situ on 4 August 2010.
7. In final submissions made on behalf of Dr Miniter it was accepted that the "real question" is what precautions (if any) would a reasonable person have taken in July / August 2010 to guard against the risk of harm, having regard to the expert evidence of the conduct of a competent orthopaedic surgeon in 2010, as well as the factors in s 43(2) of the Wrongs Act": Defendant's written submissions, par 37.
8. Whilst that submission is in large measure correct, in effect, it seeks to rely upon expert evidence as the arbiter of what constitutes reasonable care in the circumstances, whereas the true position in this case is that the function of expert evidence is to guide but not determine the required evaluation.
9. In this case, a significant defining feature of the duty of care owed by Dr Miniter is that as the treating orthopaedic surgeon, after consultation with the infectious diseases team, but absent any informed input from the plaintiff, he was in a position of total control over a decision as to whether or not to remove redundant foreign body hardware from the plaintiff's right ankle when he operated on the plaintiff on 4 August 2010. It was also within his power and control to decide what, if anything, he later told the plaintiff after the event, about that decision and its consequences.
10. On 4 August 2010, according to the expert evidence, Dr Miniter, as a specialist medical practitioner, must have known that to decide to allow redundant hardware to remain in situ could provide a nidus or a focal point for injurious infection to accrue and develop at a later point in time. This was a matter of specialised knowledge within Dr Miniter's particular professional expertise. It was a matter totally outwith the plaintiff's knowledge unless Dr Miniter had chosen to provide the plaintiff with information or advice on such matters so as to make it a shared decision: Stavar, at [103]. There is no evidence of any such communication in this case.
11. Since the evidence shows that on 4 August 2010, Dr Miniter took no pre-operative steps to inform the plaintiff of such matters, or to share with him knowledge of a potential for a nidus of infection to develop if retained redundant hardware components were left in situ, his duty of care to the plaintiff must be seen to extend to a need for him to rationally consider the potential risk of harm from the possible future tracking and spread of infection occurring, for so long as redundant hardware was allowed to remain in situ.
12. The fact that the plaintiff was not beforehand made aware of the possibility of infection occurring or spreading specifically as a consequence of part of the redundant hardware being left in situ after it no longer served a therapeutic purpose, is a matter that must be weighed and taken into account in determining the extent of the duty of care that Dr Miniter owed to the plaintiff.
13. The effect of Dr Miniter's decision, first, to leave redundant elements of the fixation hardware system in place, and secondly, not to post-operatively inform the plaintiff of the consequences of that decision in terms of possible future occurrence of infection that could arise at an indeterminate point in time, effectively precluded the plaintiff from exercising an aspect of the autonomy he might otherwise have had concerning whether or not he should take such a risk: Stavar, at [103]; Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58, at [5].
14. This was in the context where Dr Miniter did not assert the existence of what has been referred to in the decided cases as a "so-called therapeutic privilege" that might have justified him not informing the plaintiff that redundant hardware was left in situ, where, otherwise the plaintiff had autonomy of decision-making on such matters: Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58, at [8], [11] and [16].
15. I conclude from the circumstances of Dr Miniter's ultimate position on 4 August 2010, of total control over the decision of whether or not to leave redundant hardware components in situ, and also because his total control over whether or not, and with whom, to share knowledge and information about his surgical actions and decisions, that his duty of care to the plaintiff not only extended to his surgical actions and his decisions for those actions, but also to matters such as making an accurate and unambiguous record of what was done to the plaintiff at operation, especially where the prevailing circumstances of infection had influenced his intra-operative decisions and actions.
16. This must be so where, having regard to the identified risk of harm, the plaintiff, as a matter of autonomy and interest in his own future wellbeing, was entitled to be sufficiently and accurately informed as to what was done at the operation, or not done, and why that was so, and the potential consequences, in each instance.
17. I therefore find that Dr Miniter's duty of care extended to the need for unambiguously accurate and reliable communication of relevant operative events when discussing the procedure with the plaintiff post-operatively, and when making written entries in the plaintiff's medical records, as well as in his communication with other medical practitioners who might foreseeably be involved in the plaintiff's post-operative care after he had completed his role in the plaintiff's treatment.
18. I also find that Dr Miniter's duty extended to ensuring that the plaintiff and other medical practitioners who were involved in his treatment were appropriately advised as to when it might be considered safe and prudent to make arrangements to undertake further surgery for the removal of the redundant hardware components which he had decided to leave in situ at the time of the operation he performed on 4 August 2010. If it were otherwise, the plaintiff's future medical needs might well have been likely to become lost to follow-up.

Issue 5 - Preferred expert evidence on breach of duty of care

1. Professor Higgs and Professor Sullivan essentially agreed on matters of general principle concerning orthopaedic surgical management but they differed on specific matters of opinion on the appropriateness of Dr Miniter's management of the plaintiff's treatment.
2. There is no real dispute between Professor Higgs and Professor Sullivan that the applicable and fundamental orthopaedic principle that should be considered to have been standard practice required the removal of redundant surgical hardware in the presence of infection, unless that hardware continued to serve a purpose, such as continuing to promote bony healing of a fracture that remained un-united at the time of such consideration.
3. Both Professor Higgs and Professor Sullivan were also in agreement that it was appropriate for Dr Miniter to at least remove the lateral fixation plates and screws in the plaintiff's right ankle by 4 August 2010, although Professor Higgs' view was that all hardware should have been removed by that time.
4. As I understand their evidence, there were two compelling reasons for removal of the lateral redundant hardware by that time.
5. The first such reason was that satisfactory bony union of the fractured fibula had already occurred by 4 August 2010, so that no harm would come from removal of devices that had become redundant. The second such reason was that as satisfactory bony union had occurred by that time, it was important to remove redundant devices in the presence of known infection because it was well understood amongst orthopaedic surgeons that such devices could harbour infection, and could become a nidus for infective bacteria to accumulate and to track and spread to nearby bodily tissues that were otherwise healthy.
6. The point at which Professor Higgs and Professor Sullivan commenced to disagree on matters of opinion concerned the removal of redundant medial EndoButtons where there was no visual evidence of any infection on an external intra-operative examination of the medial side of the plaintiff's right ankle. Dr Miniter gave as his reason for not wanting to make an incision on the medial side, the absence of signs of infection. In his oral evidence, his stated concern was the possibility of creating an infection or a cross-infection on the medial side because the lateral side was already known to have been infected.
7. On that point, for what I consider to be a preponderance of compelling reasons, which now follow, and which emerge from the expert medical evidence, I find that the opinions of Professor Higgs should be preferred to those of Professor Sullivan.
8. First, the expert orthopaedic opinions must be evaluated in light of the identified risk of harm and the scope and content of the duty of care owed, and also in light of the general and non-controversial aspects of expert opinion upon which the infectious diseases physicians agree. In that latter regard, the bacteria that can cause osteomyelitis should be viewed as being in a large general group, in which some organisms are more virulent than others, where bacterial osteomyelitis has the capacity to spread to cause harm to adjacent healthy tissues. Such circumstances merited the taking of reasonable precautions against such a risk.
9. Secondly, after 30 June 2010, the redundant medial remnants of the syndesmosis stabilisation system ceased to serve a function after Dr Miniter cut the lateral knots of that system. In those circumstances, because the medial remnant components of the stabilisation system then remained as foreign bodies, they too served as a potential nidus for possible infection that could possibly develop and spread below the skin, where it would not necessarily be observable on an external inspection, either visually or by palpation. Therefore, to leave such redundant components in situ, without a specific plan of management, including for removal at a later time, risked the potential harm that could otherwise have been guarded against by the exercise of reasonable care.
10. Thirdly, in the context of the described circumstances, I do not accept as reasonable, Professor Sullivan's factual argument comprising the theoretical construct to the effect that the fixation plates and screws should be viewed as implants that were separate from the components of the tightrope stabilisation system. That was the point of analysis he relied upon as justification for Dr Miniter not removing the medial redundant hardware on 4 August 2010. Instead, I accept as more reasonable, and more logical, Professor Higgs' view to the effect that the entire array of indwelling hardware that was installed to treat the plaintiff's injury on 10 May 2010 should be viewed as one system from the viewpoint of a consideration of what required removal in the combined presence of redundant hardware and infection. That latter view gives proper recognition to the expert infectious diseases evidence that infection does not recognise boundaries and it is capable of attaching itself to elements of such hardware, and then spreading in an unpredictable way to adjacent tissues.
11. Fourthly, and similarly, I do not accept as either reasonable or appropriate, Professor Sullivan's analytical standpoint that different compartments or sections of the ankle can be viewed separately in terms of a surgical response to infection control as a justification for not surgically removing the medial components on grounds of lack of apparent evidence of infection. In that regard, I prefer Professor Higgs' view that the ankle should be viewed as a whole. I consider this to be so, especially since in this instance Dr Miniter had drilled communicating tunnels through the plaintiff's right fibula and tibia, where tightrope structures had been threaded through those holes, including through adjacent tissues, and where those tightrope structures could serve as what has been described in the evidence as a very good and suitable highway for transmission of infective organisms from one side of the ankle towards the other side. The end point of the other side of such internal tunnels juxtaposed to a point near the underside of the redundant medial EndoButtons, which were themselves, a potential nidus or gathering point for infection. On account of those factors, I prefer and accept Professor Higgs' opinion to the effect that this aspect of Professor Sullivan's opinion was unrealistic. I have also given weight to the unchallenged expert infectious diseases evidence of Professor Guinness that Professor Sullivan's boundary-based concept of compartmentalisation of the ankle into separate infected and uninfected portions for the purpose of analysis, was unscientific.
12. Fifthly, I consider the nature of Dr Miniter's intra-operative examination of the medial side of the plaintiff's right ankle, as a basis for determining there was no infection at that place, to be necessarily limited for the purpose of forming a reliable conclusion to that effect. A visual examination would certainly show whether or not signs of erythema and swelling were present as a possible sign of infection. However, a manual palpation of the medial side would not have elicited a tenderness response from a patient whilst under anaesthesia. Furthermore, as was observed by Professor Guinness, infection can develop from an earlier prodromal stage. In those circumstances, I infer from such evidence that the indicia of infection may not always be visually observable or detectable. Therefore it was of doubtful reliability to conclude from absence of such external signs, that there was no infection developing or accumulating in the deeper structures on the medial side. I also consider that to be so because, the lateral side of the ankle was already affected by deep infection, and because communicating tunnels had been drilled from that location to the medial side.
13. Sixthly, the nature of bacterial osteomyelitis infection is such that it can lay dormant or suppressed, and it could remain and lurk in the glycocalyx to emerge purulently at a later and unpredictable point in time. In those circumstances, when it was safe to do so, early removal of a potential nidus for infection on account of risk reduction would seem to be a more prudent course to take, rather than to leave a potential nidus in place where it no longer served any practical purpose. In that regard, I attach persuasive force to the view that even if Dr Miniter decided that on 4 August 2010 it was not the time to remove the remnant medial hardware, that procedure could have been undertaken a month or so later, as was explained by Professor Guinness (at T248.45), that is, after the lateral infection had been treated and brought under control, instead of leaving those redundant remnants in situ for an indeterminate period without a definite plan having been established for the ultimate removal of those remnants.
14. In arriving at those views, I have not overlooked those portions of the evidence of Dr Miniter and Professor Sullivan to the effect that to operate to cut and open the skin on the apparently uninfected medial side, in order to remove redundant hardware components, risked either infection or cross-infection of otherwise healthy tissues. In my view, on the evidence, the answer to a stated concern along those lines is as follows: 1. First, a risk of that kind must be weighed against the risk of greater harm arising from leaving a potential nidus for infection in place where an already serious infection was present on the lateral side, for which appropriate antibiotics would be given; 2. Secondly, if the potential for resultant cross-infection to occur was a concern, it would be reasonable to assume that the systemic antibiotics given to attack and treat the primary infection on the lateral side would also have had a therapeutic effect if the same organisms became infective on the medial side. Whilst the expert evidence was silent on that subject, it seems to me that the evidence as to the systemic effect of antibiotics gives rise to a commonsense inference along those lines: Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45; at pp 563 - 564; p 569; Seltsam Pty Ltd v Guinness (2000) 49 NSWLR 262; [2000] NSWCA 29, at [87] - [88]; Commissioner of Police v Rea [2008] NSWCA 199, at [8]; 3. Thirdly, if a fresh skin cut made on the medial side led to a fresh infection of the kind discussed by the infectious diseases experts, such as through a possible unavoidable breakdown in aseptic technique in the operating theatre, on the evidence, it seems that such a development would have been a treatable vicissitude for which a hospital infectious diseases physician would have been consulted in order to prescribe a suitable treatment; 4. If the risk/benefit analysis identified by Dr Miniter had been made, the plaintiff and those other practitioners treating him should have been made aware of the consequences of that analysis in terms of possible future infection as this was a relevant consideration given the increased risk of infection where redundant hardware remained in situ.
15. In my view, when Dr Miniter and Professor Sullivan expressed their views for defending the decision of not having made a cut on the medial side, they seem to have given disproportionate weight to such a cut being a possible source of potential infection risk in comparison to what seems to be the need to weigh a potentially greater harm posed by the risk of an internal spread of infection via what has been described in the accident as the highway comprising the connecting tunnels drilled through the ankle bones and tissues.
16. The foregoing analysis has led to me prefer Professor Higgs' opinions to those of Professor Sullivan. That approach will therefore guide my evaluation of the question of whether or not Dr Miniter was in breach of the duty of care that he owed to the plaintiff in this case.

Particulars of negligence as pleaded

1. The plaintiff's case was based upon the following pleaded particulars of negligence: 1. Failure in August 2010 or thereafter to remove all infected or infective hardware including the sutures and buttons; 2. Failure to accurately record and describe the surgery of August 2010 in the Operative Report so as to record that the sutures and buttons remained in situ; 3. Failure to devise implement or maintain an effective treatment plan for the plaintiff's post-operative infection; 4. Failure to refer the plaintiff for investigation by an infectious diseases specialist.
2. In my view, particulars (c) and (d) as set out in the preceding paragraph may in this instance be disregarded as being inapplicable to the factual circumstances of this case. This is because Dr Miniter did in fact arrange for an appropriate and effective treatment plan for the plaintiff's post-operative infection in 2010, in that he appropriately enlisted the services of the hospital infectious diseases team so that an appropriate specialist was engaged to oversee the plaintiff's need for antibiotic treatment for infection, until the infection was considered to have been cured, in November 2010.
3. This then leaves for consideration particular (a), which relates to Dr Miniter's unilateral decision not to remove the redundant hardware, and particular (b), which relates to the adequacy of the clinical record that Dr Miniter made concerning the procedure he carried out on 4 August 2010, knowing it was foreseeable that if infection were to subsequently occur, in the future, other practitioners may be reliant upon the content of his arguably ambiguous clinical record when considering the appropriate measures to be taken for treatment and management of such infection: Elayoubi v Zipser [2008] NSWCA 335, at [65] - [66]; [74] - [76]; [83].

Defendant's complaint concerning plaintiff's alternative case

1. Written submissions made on behalf of Dr Miniter raised a complaint over the plaintiff's reliance on an alternative unpleaded case that after the operation on 4 August 2010, and as a separate subsequent procedure, a competent orthopaedic surgeon would have removed the redundant hardware elements so as to reduce the risk of infection: Defendant's written submissions, par 39.
2. The plaintiff's so-called alternate case, had two foundations. First, it was a reflection of the plaintiff's particularised case, as is evident from the particular of negligence (a) cited at paragraph [368] above. Secondly, it was based on unchallenged expert evidence comprising the opinion of Professor Guinness, in the joint expert report that followed his meeting with Professor Braslins: Exhibit "1", Vol 1, pp 207 - 208.
3. The alternate case had therefore been on the table and exposed to the defendant's legal advisors since 8 October 2019, which was the date of that joint report. Absent challenge or contradiction, it was therefore an available argument that was open to be made at trial, at least on the causation issue, if not more: Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666, at p 668. Therefore, it cannot be said reasonably that the argument in question involved ambush.
4. In my view, on the facts of this case, it is of little if any significance that the plaintiff's alternative case was not put to Dr Miniter in cross-examination, as was pointed out in the cited submission made on his behalf.
5. I consider that to be so because, following the operation performed by Dr Miniter on 4 August 2010, the last time Dr Miniter had professional contact with the plaintiff before July 2017, was on 11 August 2010, as is evidenced by an entry in the hospital records relating to antibiotic treatment and changes of surgical dressings: Exhibit "1", Vol 1, p 405. The plaintiff was then apparently discharged from his care in circumstances where there was no evidence to suggest Dr Miniter had made any arrangements to see the plaintiff, his private patient. Nor was there any evidence suggesting the plaintiff had been told by anyone that he should seek a post-operative appointment with Dr Miniter for any reason whatsoever. The evidence is to the effect that the plaintiff's post-operative care was within the remit of the hospital's infectious diseases team.
6. Whilst Dr Senanayake, the infectious diseases physician, wrote to Dr Miniter to keep him informed of the progress of the plaintiff's antibiotic treatment, there is no evidence that Dr Miniter replied to that correspondence or acknowledged it in a way that might suggest that he had retained a supervisory role in the plaintiff's infection management.
7. The compelling inference is that Dr Miniter had discharged the plaintiff from his care by 11 August 2010. There is no hospital record, or patient file note, or correspondence from Dr Miniter to the treating general practitioner to suggest otherwise.
8. In those circumstances, if the alternative case had been put to him in cross-examination, Dr Miniter would not have been able to make a relevant factual comment in response as he was no longer involved in the plaintiff's medical management after 11 August 2010. Any comment he might have been invited to make in those circumstances would have been hypothetical, speculative, not based on facts known to him, and therefore it would have been irrelevant and inadmissible: s 56 of the Evidence Act 1995 (NSW); s 56 of the Evidence Act 2011 (ACT).
9. The way in which the parties conducted the trial, where irrelevant deficiencies were permitted to remain in their respective pleadings, without them having taken the preferable step of making an application for leave to achieve rectification, where ultimately and for obvious pragmatic reasons, the issues which defined the dispute appear to have been defined in the expert evidence, and not in the pleadings. In those circumstances, there is no substance to the defendant's complaint about a so-called alternative case: Indigo Mist Pty Limited v Palmer [2012] NSWCA 239, at [66], following and applying cases such as Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12, at p 497, and Whisprun v Dixon [2003] HCA 48; 200 ALR 447, at [52]-[53].
10. Whilst it is preferable for pleadings to be amended to formalise emergent circumstances, it is not essential for this to occur, and a case may proceed to judgment provided the issue raised was run at trial. That statement applies with full force to the present circumstances. I therefore do not accept the defendant's cited submission. The issue of whether the redundant hardware left in situ on 4 August 2010 should have been removed shortly afterwards, as suggested by Professor Guinness, was sufficiently identified in the evidence for it to be considered at trial.
11. For completeness, in the paragraphs that now follow, I identify the unrectified deficiencies in the pleadings as referred to at paragraph [379] above.
12. Dr Miniter's pleaded defence referred to and relied upon the provisions of the CL Act (NSW) and the Limitation Act 1969 (NSW) when those statutes plainly had no application to this case.
13. Although the plaintiff's case was plainly structured on the basis that the CL Act (NSW) applied, the statement of claim made no reference to the terms or the requirements of any civil liability legislation, whether ACT or NSW, and similarly, it pleaded no reference to any relevant statutory provisions concerning risk of harm, duty of care, and alleged causative breach, as is the expectation of a pleading in such a case: Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320, at [128].
14. The plaintiff's statement of claim relied upon s 3(1)(a) and s 60 of the Australian Consumer Law, which did not feature in either the opening address or in final submissions on behalf of the plaintiff, whereas the plaintiff relied upon an unpleaded case based on the provisions of the CLWA.
15. Furthermore, the plaintiff's statement of claim made reference to "s 60 ACL and/or negligent" (at par 8), and "the Defendant's breach and/or negligence" (at par 9).
16. The expression "and/or", otherwise described in a range of decided cases as the bastard conjunction, does not belong in a pleading because it is an unclear term that is apt to confuse and mislead. I explained that problem in Vaccaro v MLC Limited [2016] NSWDC 85, at [10] as follows: "10. The use of the loosely ambiguous term "and/or" has been authoritatively described elsewhere as the "bastard conjunction" that is to be regarded as being unacceptable in pleadings due to its vagueness and scope for confusion: St Clair v Timtalla Pty Ltd and Anor (No 2) [2010] QSC 480, at [11]; following Bonitto v Fuerst Bros & Co Ltd [1944] AC 75, at p 82. The use of that conjunction could wrongfully lead the reader to assume it involves causation when all it achieves is obscurity: Moage Ltd (in liq) v Jagelman [1998] 153 ALR 711, at p 716. The applicability of the matters raised by that cited portion of the pleaded defence will depend upon an objective construction of what the parties intended by their contract: Toll (FGCT) Pty Limited v Alphapharm Pty Ltd & Ors [2004] HCA 52; (2004) 219 CLR 165. ..."

General consideration of the claim of negligence

1. In my assessment, having regard to conventional common law principles regarding the assessment of whether reasonable care had been exercised, the evidence in support of a finding that Dr Miniter was negligent in the events of 4 August 2010 and thereafter, is compelling.
2. However, a common law analysis is but the first step in the process of determining whether or not Dr Miniter was in breach of the duty he owed to the plaintiff: Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, at [14]. This is because, in addition, and slightly more demandingly, the plaintiff must, amongst other things, satisfy the three statutory pre-conditions for such a finding, as provided by s 43(1) of the CLWA: Shaw v Thomas [2010] NSWCA 169, at [44]. That case was concerned with s 5B(1) of the CL Act, however that provision is in identical terms to s 43(1) of the CLWA.
3. A consideration of those three pre-conditions now follows.

Section 43(2)(d) of the CLWA - no relevant social utility

1. In my view, there was no social utility or any similar benefit to be gained from not taking the identified precautions: s 43(2)(d) of the CLWA. This is not a case where the evidence suggests that on a balanced view there was a risk worth taking. This is because at the time the decision was made, the plaintiff was not relevantly aware of the risk: Waverley Council v Ferreira [2005] NSWCA 418, at [50].

Issue 7 - Consideration of expert evidence on causation

1. The respective evidence of Professor Guinness and Professor Braslins, the infectious diseases experts, was necessarily based on the interpretation of the results of microbiological cultures grown from intra-operative swabs taken at the time of the various surgical procedures that Dr Miniter performed on the plaintiff.
2. The evidence of the manner and extent to which the intra-operative wound swabs were taken was left in an imprecise state and not clarified by other evidence.
3. The microbiological test results as identified in the evidence do not provide sufficiently precise descriptions to clarify the various sites in the surgical field that were swabbed so as to lead to those results. Nor do those results identify the time sequences for the various samplings taken on the respective operation dates.
4. This is in the context of expert evidence which referred to the possibility of different degrees of diligence in intra-operative swab sampling practices, which in turn raised the possibility that single swabs may have been used to cumulatively sample different parts of the surgical wound at different times during the respective operations: T229.24 - T229.41. Those are matters that cannot be assumed as some kind of presumption of regularity. They must be the subject of reliable evidence.
5. The limited nature of the evidentiary descriptions as to the sequences in which such swabs were taken has created doubt concerning the reliability of drawing conclusions as to the timing of emergent infections from the cultures grown from the surgical swabs in terms of recurrence of infection or the occurrence of new infection.
6. This necessarily limits the facility for the infectious diseases experts to draw definitive conclusions from those results as to when, or if, certain organisms were likely to be present or absent at particular times, namely on 7 May 2010, 30 June 2010, 4 August 2010 or 25 July 2017. The facility for an analysis along those lines is also confounded by the fact that the infective organisms in question had the potential to lay "doggo" or lurk undetected in the glycocalyx, notwithstanding that there might have been some negative microbiological cultures that suggested those organisms were not present.
7. The respective analytical opinions of the infectious diseases experts were expressed to be on the balance of probabilities. An opinion arrived at along those lines requires a reasoned identification and consideration of competing possibilities so that such possibilities could be weighed and balanced, including by a process of excluding identifiable improbabilities if reasonably possible, in order to identify the most probable explanatory cause of the harm claimed by the plaintiff: UCPR r 31.27(1)(c); Sch 7 cl 3(e).
8. It is against that background that I am required to wrestle and grapple with the differing aspects of the respective expert opinions in order to identify a reasoned preferred view on disparate aspects of the disputed opinions of Professor Guinness and Professor Braslins: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, at [28]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [66]. That step is a necessary pre-condition to be undertaken before proceeding to make findings on the causation issues that have arisen and which require determination in this case.
9. An aspect of the common ground between Professor Guinness and Professor Braslins was that, on 10 May 2010, the hardware devices comprising the fixation plates and associated screws, the anchors and the sutures connecting the EndoButtons, most likely became inoculated with the organisms Staphylococcus Aureus and Pseudomonas Aeruginosa, and that those organisms were present at the surgery performed on 30 June when the EndoButtons were removed on the lateral side of the plaintiff's right ankle.
10. Whilst it was also generally accepted that the presence of retained surgical fixation devices may increase the risk of infection, it was also generally accepted that a recrudescence of infection might also occur where there were no retained surgical devices: T243.6 - T243.8.
11. Following the operation on 25 July 2017, cultures grown from swabs taken at that time grew Staphylococcus Aureus: Exhibit "1", Vol 1, p 407.95. There were two competing theories for the presence of that organism in the plaintiff's surgical wound on that date.
12. Whereas Professor Braslins believed it was most likely the result of bloodborne seeding of the remnant fixation hardware from a later infection in 2016, that theory must be read in light of the uncontested common ground evidence that such organisms can remain concealed or undetected in the biofilm of a fixation device, and potentially lurk in the glycocalyx: Exhibit "B", p 24; Exhibit "1", Vol 1, p 55, pp 56 - 57.
13. It was plain that in reaching their differing opinions, both Professor Guinness and Professor Braslins, as expert infectious diseases physicians, did their best to apply their knowledge, training, skill and experience to the causation analysis required in this case.
14. Nevertheless, on reviewing their written opinions and considering their explanatory oral evidence with regard to those opinions, I was left with the impression that the causation analysis that arises for determination in this case was necessarily confounded due to significant unknown variable factors in the mix of considerations relevant to that analysis.
15. Foremost amongst those variables was the combination of an absence of particularity of description concerning the precise sites within the surgical wound where all of the various surgical swab samplings were taken, and an absence of a precise identification of the particular stage of the surgical procedures when the respective swabs were taken, that is before or after clearing and cleaning debris from the wound. A further confounding factor was evidence of the possible use of a single swab to take samples from multiple locations within the surgical field of particular operations. That factor was not clarified by factual evidence.
16. A further confounding factor was the limited explanatory detail in Dr Miniter's 4 August 2010 operation note regarding the taking of swabs and the co-relation of the description in the operation note dated 30 June 2010, which made no mention of pus, compared to Dr Miniter's description in his oral evidence, of the presence of abundant pus. This was a matter raised by the expert evidence at the trial, but not further explored: T234.45 - T235.30.
17. Neither party sought to explore or clarify those matters in the evidence of Dr Miniter, either when he gave his evidence, or by way of an application for him to be recalled to give evidence on those matters. He might have been able to throw light on those matters, if not by reference to an actual recollection of what he did at the relevant times, then by reference to his usual surgical practice at the time. This was an issue upon which the plaintiff carried the onus of proof: s 46 of the CLWA.
18. Those confounding factors must necessarily influence the reliability of the range of culture results grown from surgical swab samples taken at the time of the plaintiff's various procedures as a basis for drawing inferences and making findings of fact concerning when the plaintiff's actionable osteomyelitis occurred and why that was so.
19. Without intending any disrespect to the analytical efforts of the infectious disease experts, who as highly qualified medical scientists, without doubt, did their best to proffer reasoned explanations concerning the timing of the plaintiff's various infections, a causation analysis according to law must proceed on a non-speculative and adequately reasoned basis, and which necessarily eschews unwarranted conjecture and speculation. The scientific papers identified in the evidence did not assist that task.
20. The foregoing perspectives arising from the evidence of the infectious diseases physicians will guide my evaluation of the question of whether or not the breach of duty of care as found and explained in paragraphs [366] to [427] above, was the relevant cause of the plaintiff's claim of harm.

Issue 8 - Causation of harm

1. The plaintiff faces the evidentiary challenge of proving, on the balance of probabilities, that Dr Miniter's breach of duty of care, has caused him to suffer harm from an infection that would not otherwise have occurred but for that breach of the duty of care owed: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [18].
2. That challenge involves three elements that have a basis in the legislation which must be applied. The first requirement is that the plaintiff must demonstrate precisely the harm that he has actually incurred, secondly, he must satisfy the but for test for factual causation as required by s 45(1)(a) of the CLWA, and thirdly, he must satisfy the scope of liability test as required by s 45(1)(b) of the CLWA.

[1998] HCA 55

[1999] HCA 22

[1992] HCA 58

[1988] HCA 12

[2003] HCA 48

[2010] QSC 480

(2009) 238 CLR 420

(1940) 64 CLR 538

(1951) 217 ALR 1

(2009) 75 NSWLR 649

(1976) 50 ALJR 666

(1952) 85 CLR 352

(1999) 197 CLR 162

(1965) 114 CLR 164

(2007) 234 CLR 330

(1992) 175 CLR 479

(2001) 205 CLR 434

(2000) 49 NSWLR 262

(2012) 246 CLR 182

(2010) 240 CLR 537

(1991) 174 CLR 64

(2005) 223 CLR 442

(2013) 250 CLR 375

(1988) 180 CLR 491

(1960) 108 CLR 158

(1980) 146 CLR 40

(1985) 39 SASR 543

(2004) 219 CLR 165

[2009] HCA 48

[2015] NSWCA 191

[1952] HCA 19

[2009] NSWCA 110

[2015] NSWCA 320

[2004] HCA 52

[2010] HCA 5

[2008] NSWCA 199

[1977] HCA 45

[2015] NSWCA 90

[1965] HCA 34

[2000] NSWCA 29

[1991] HCA 54

[2016] NSWDC 85

[2013] HCA 19

[1960] HCA 58

[2010] HCA 12

[2001] HCA 18