Old v Miniter

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] In May 2010 the appellant, Mr Brian Old, sustained an injury in a motorcycle accident, which involved a displaced fracture of the fibula in his right ankle. The respondent, Dr Paul Miniter, an orthopaedic surgeon, undertook the reconstruction of the broken fibula on 10 May 2010. In May 2017, the appellant suffered an infection, osteomyelitis, which was said to have resulted from a failure by the respondent to remove surgical components from the appellant's ankle. This infection caused severe ankle pain and required a further operation. The appellant brought proceedings in the District Court, claiming that the respondent had breached his duty of care, failed to exercise reasonable care and skill, and failed to comply with the consumer guarantee as to due care and skill. He claimed that the infection in his ankle was caused by the respondent's decision to leave surgical cords and EndoButtons inside his ankle on the medial side, of which he had no knowledge and which was not properly recorded by the respondent. On 31 July 2020 the trial judge dismissed the claim, finding that, although the respondent had failed to exercise reasonable care and skill, the breach of duty had not caused the subsequent infection. No finding was made with respect to the consumer law claim. A contingent of assessment of damages was made in the sum of $66,800. On the appeal, the appellant challenged the primary judge's findings on causation, and damages, including a failure to award interest. The respondent filed a notice of contention, challenging the finding on breach of duty and contending that he had exercised reasonable care and skill. The principal issues before this Court were: (1) whether the respondent had breached his duty of care to the appellant; (2) whether the alleged breach of duty was causative of the infection in 2017; and (3) whether the judge's contingent finding on damages, including failure to award interest, was correct. Held (by Basten JA, Macfarlan and Meagher JJA agreeing) dismissing the appeal: Issue (1) - whether the respondent had breached his duty of care to the appellant 1 It was not unreasonable to leave the medial hardware in situ at the time the lateral hardware was removed, and taking steps to remove the medial hardware at a later time could have caused further complications. The orthopaedic expert evidence did not provide an adequate basis for concluding that the respondent had breached his legal duty of care to the appellant: [44]-[45], [51]-[58], [60], [79], [87]-[88], [90], [127], [128]. 2 The "alternative case", which was not pleaded, was that it was reasonable to leave the medical hardware in situ, but that steps should have been taken at an appropriate later time to remove the hardware. The evidence of the infectious diseases experts, who alone considered this alternative, was not considered by the trial judge in making this finding, nor was the case ever put to Dr Miniter. This finding should therefore not have been upheld by the trial judge: [67]; [87]-[89]. Issue (2) - whether the alleged breach of duty was causative of the infections later diagnosed 3 The risk which materialised would probably not have materialised in the absence of the foreign material, therefore causation would have been established: [92], [97]-[98], [110], [115]-[116], [127], [128]. Issue (3) - whether the judge's contingent finding on damages, including failure to award interest, was correct 4 The challenges to the judge's assessment of general damages, future domestic assistance and future treatment expenses should be rejected. With respect to the claim for economic loss, any diminution of earnings by the family business which employed Mr Old was not reflected in his tax returns. It followed that on the evidence he had not proved the loss asserted. Absent an award of damages, there is no need to consider interest: [120]-[123], [127], [128].

Judgment

1. BASTEN JA: In May 2010 the appellant, Brian Lennard Old, sustained an injury in a motorcycle accident, involving a displaced fracture of the fibula in his right ankle. On 10 May 2010 the respondent, Dr Paul Miniter, an orthopaedic surgeon, undertook the reconstruction and stabilisation of the broken fibula.
2. In September 2018 Mr Old commenced proceedings against Dr Miniter in the District Court seeking damages for negligence under the general law and for failure to exercise proper skill and care under s 60 of the Australian Consumer Law. Mr Old made no complaint about the initial surgery: his complaint was that after the ankle had fully healed, Dr Miniter was negligent in failing to remove cords by which the broken fibula and the plate inserted by the surgeon had been anchored to the tibia. He alleged that the failure to remove the cords led to an infection some seven years later in May 2017. The infection caused severe pain in the ankle and necessitated a further operation.
3. The trial proceeded over nine days before Judge Levy SC, between October 2019 and 7 July 2020. On 31 July 2020 judgment was delivered dismissing the proceedings. [1] Although satisfied that Dr Miniter had failed to exercise reasonable skill and care, the judge was not satisfied that the breach of duty caused the subsequent osteomyelitis detected in May 2017. Accordingly, the proceedings were dismissed with costs.
4. Against the possibility that he had been wrong in his finding on liability, the judge made a contingent assessment of damages in an amount of some $66,800.
5. On 30 October 2020 Mr Old filed an appeal in this Court. There is no appeal as of right unless the amount in dispute is at least $100,000. [2] The appeal included a challenge to the contingent assessment of damages, Mr Old contending that, if he were to succeed on liability, the amount of the damages would exceed $100,000, thus avoiding the need for leave to appeal. As no objection was taken by the respondent to the competence of the appeal, the appellant's submissions in that respect should be accepted. That is to say, it should be accepted that the amount in dispute exceeds the statutory floor of $100,000.
6. Whilst defending the judge's finding as to the failure to establish a causal connection between the breach of duty and the harm suffered, the respondent also challenged the judge's finding of breach of duty and challenged the failure of the judge to uphold a defence of contributory negligence on the part of Mr Old in failing to obtain medical treatment when the symptoms of the osteomyelitis first arose in 2017. These issues were raised by a notice of contention: however, because logically the issue as to breach of duty should be determined before causation, it will be convenient to deal with that issue first.
7. For reasons explained below, the respondent's contention that he was not in breach of his duty of care in his treatment of the appellant should be accepted. It follows that the appeal must be dismissed.
8. Before considering the factual circumstances said to give rise to a breach of duty, it is convenient to identify the relevant legal principles.

Legal principles

1. In his statement of claim Mr Old alleged that, as the recipient of health care services provided by Dr Miniter, he was a "consumer" within "s 3(1)(a) Australian Consumer Law". [3] Section 3(1) deals with acquisition of goods and s 3(3) deals with acquisition of services: accordingly the intended reference was to s 3(3)(a). Reliance was placed upon s 60 of the Australian Consumer Law which provides as follows: 60 Guarantee as to due care and skill If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
2. Mr Old also alleged that he had the benefit of a "common law duty of care" as Dr Miniter's patient. [4] Mr Old complained that Dr Miniter had failed, in August 2010, to remove all of the "surgical hardware" inserted in May 2010 and that the failure was "in breach of s 60 ACL and/or negligent". [5] Particulars were provided in the following terms: "Particulars of Breach of s 60 ACL and Negligence (a) Failure in August 2010 or thereafter to remove all infected or infective hardware including the sutures and buttons; (b) 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; (c) Failure to devise implement or maintain an effective treatment plan for the Plaintiff's post-operative infection; (d) Failure to refer the Plaintiff for investigation by an infectious diseases specialist;"
3. Section 60 of the Australian Consumer Law is commonly understood as imposing a guarantee in terms reflecting general law principles. However, apart from a complaint about the use of "and/or" in a pleading, there was no other reference to s 60 in the judgment. [6] The trial judge noted that the statement of claim had been pleaded without reference to relevant statutory provisions governing claims for negligent delivery of services, whilst the defence had relied on provisions in the Civil Liability Act 2002 (NSW). The judge noted that, the relevant conduct having occurred in the ACT, the Civil Liability Act was not engaged, but that the error had been accepted in the course of the proceedings and he accordingly applied relevant provisions of the Civil Law (Wrongs) Act 2002 (ACT).
4. With respect to duty and breach of duty, the Civil Law (Wrongs) Act 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. 43 Precautions against risk - general principles (1) A person is not negligent in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things): (a) the probability that the harm would happen if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity creating the risk of harm.
5. The relationship between common law principles applicable under s 60 of the Australian Consumer Law and the relevant provisions of the Civil Law (Wrongs) Act were not addressed, because the trial judge did not apply s 60. No complaint is made in this Court as to that omission and the s 60 cause of action need not be further addressed. Rather, the judge assessed the claim of negligence according to the provisions of the Civil Law (Wrongs) Act. [7] On the other hand, in discussing the elements of the claim the judge appeared to make a finding as to negligence under the common law, which he then subjected to the slightly more demanding rigour of the legislation. [8] It will be necessary to return to this analysis in considering the challenge to breach of duty.
6. As noted above, the trial judge was not satisfied that the causal element had been made out. That analysis turned on the application of s 45 of the Civil Law (Wrongs) Act which provides: 45 General principles (1) A decision that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the happening of the harm ('factual causation'); (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (the scope of liability). (2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to 1 or more of them - (a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but (b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability. (3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.

Factual background

1. The initial injury occurred on 1 May 2010 when the appellant was riding a motorcycle. The injury to the right ankle was described by the trial judge as "a displaced fracture of the right fibula and a high ankle sprain involving tearing of the associated medial ligament of that ankle, with disruption and diastasis of the right inferior tibio-fibular syndesmosis, an anatomical structure that comprised the stabilising ligaments of that ankle." [9] On 6 May 2010 the appellant's general practitioner referred him to Dr Miniter in Canberra for assessment and treatment. Dr Miniter arranged for him to be admitted to hospital and, on 10 May 2010, undertook an open reduction and internal fixation of the fractured fibula. The broken bone was held in place by a plate and screws and by a syndesmosis TightRope. The judge described the stabilising system as follows: "[5] The syndesmosis reconstruction component of that surgery involved a process of laterally drilling two tunnel tracks through the fibula and tibia and associated soft tissues in the right ankle. Two coated and braided high molecular polymer fibre tightropes were then threaded and passed through the ankle via each of those holes. Those tightropes were then anchored, secured and knotted, to maintain them under tension by the use of four anchoring metal discs, called EndoButtons, placed surgically at the medial and the lateral sides of the right ankle, on the tibia and fibula, beneath the skin. [6] The tightrope system used to treat the plaintiff was designed to keep the tibia and fibula in a position that would assist in creating an advantageous environment for the syndesmosis ligaments to heal."
2. A significant issue in the case turned on the use of the terms "lateral" and "medial", the lateral being the outer side of the ankle and the medial being the inside, closest to the medial line of the body. Thus when the surgeon operated "laterally" he made an incision on the outer side of the ankle, in this case of the right leg. The surgery to insert the stabilising system only required incisions on the lateral side of the right ankle. On the medial side there was a small needle puncture mark, the needle being used to "capsize the EndoButton onto the medial aspect of the tibia". [10]
3. Mr Old was discharged from hospital following his operation on 10 May and had a follow-up consultation on 24 May 2010. [11] The plaster was removed and the wound inspected; significant swelling was noted. Dr Miniter saw Mr Old again on 1 June 2010. [12] Mr Old was readmitted to hospital for between three and four days. [13] The purpose of the hospitalisation was rest and elevation of the limb; he was not given antibiotics at that stage. [14] Dr Miniter was asked in evidence if he recalled examining the stitches and lateral aspect of the wound; he said that he did and that "[t]he wound was intact and there was no evidence of infection." [15] He recalled that he reviewed Mr Old after his three or four days in hospital and found that he had "improved substantially." [16]
4. On 17 June 2010 Dr Miniter saw Mr Old again and noted, in his report to the general practitioner, that he had "progressed very well since last review." Further pathology tests were undertaken in mid-June as a result of a consultation with Mr Old's general practitioner who noted that the wound was improving but continued with antibiotic medication in the expectation of a further review in two weeks with Dr Miniter.
5. On 30 June 2010 Mr Old's general practitioner referred him to Dr Miniter for further review. He was seen that day. On inspecting the wound, Dr Miniter decided that the wound was not healing on the surface and that it needed surgical attention. He described his action in the following terms: [17] "I removed the sutures from the outside wound and I inspected the wound itself. There was clear evidence that the wound was infected. I took swabs. Sent the swabs and sent cultural material and I then washed the wound out. In the depths of the wound were [where?] the two TightRope anchors are[,] the sutures are quite prominent in those older style anchors so I snipped away at the sutures because I felt that they were a problem and I took away the discs which were associated with them." The wound was then closed and Mr Old was, in effect, placed in the hands of the infectious diseases consultant at the hospital, Dr Sanjaya Senanayake. [18]
6. At that stage the fibula was not fully healed and, although Dr Miniter removed the knots and the EndoButtons on the lateral end of the TightRopes, the other surgical hardware remained in place, the intention being to remove the screws and plate in late July or early August. [19] The only other remaining hardware was the two fibre tightropes and the two EndoButtons on the medial side. There was no claim of negligence up to this point.
7. The material sent for culture by Dr Miniter on 30 June produced responses to staphylococcus aureus and pseudomonas aeruginosa. "Light growth" was recorded in each case. The results also reported medication to which each was sensitive. Mr Old was treated by the infectious disease physicians at the hospital and was discharged on 7 July 2010.
8. Mr Old was reviewed by Dr Miniter on 30 July 2010 and booked in for a further washout of the lateral wound on his right ankle, to be undertaken on 4 August 2010. The allegation of negligence turned upon his decision not to make a further incision on the medial side to remove the TightRope and the EndoButtons situated on the medial side of the tibia by which the fractured fibula had been stabilised. Those formed the remaining surgical hardware in the ankle.
9. The next stage in the history was critical to the appellant's claim in negligence. On 4 August 2010 Mr Old was readmitted to hospital and Dr Miniter determined that the bone had healed. A third operation was undertaken by Dr Miniter in the course of which he removed the screws and the plate from the lateral side of the ankle. The operation record contained the following: "FINDINGS United fracture right ankle no evidence of deep sepsis wound healing and much improved since patient put [back] onto the planned antibiotics [treatment] deep swabs taken and screws all sent TECHNIQUE Lateral approach right ankle removal of all remaining hardware laterally closure after swabs taken and plate and screws sent for MCS [20] closure skin only dressings POST-OP ORDERS home Friday rest in bed analgesia antibiotics"
10. 4 August 2010 was a Wednesday: it was initially anticipated that Mr Old would return home two days later. However, the pathology report was positive for Corynebacterium jeikeium and staphylococcus capitis, for which he was initially given intravenous antibiotics. Mr Old was kept in hospital for a further week, and discharged on Friday, 13 August.
11. In his evidence in chief, Dr Miniter explained the operation on 4 August 2010 in the following terms, referring to its location as the lateral side of the right ankle: [21] "Having identified the area where the original incision was, reopened the incision, sometimes remove the scarring itself, which I think I did, and then basically explore directly the bone, identify the plate and screws, remove all the plate and screws, and then take specimens because we're almost sure that there are going to be organisms around these plates. … We have a special swab stick, and we also send fresh specimens to the microbiologist, who will put it on plates and attempt to grow organisms from it. … So there are screws in the plate, and there is a screw … that we use to reduce the fracture into place. That needs to be removed as well, so we took that out as well."
12. The result was explored further: [22] "Q. Now looking at … your operation report, 'lateral approach, right ankle, and removal of all remaining hardware laterally'. In describing what you did during the procedure, at the time did you think that you had removed all remaining hardware laterally? A. Laterally, yes. Q. Did that leave any hardware in Mr Old's leg? A. It did. Q. What hardware was that? A. It was the medial EndoButton constructs for the two TightRope anchors. … Q. Why did you leave those in? A. At no stage had that side of the wound been involved, at no stage was there redness on that side, and I thought that it was inappropriate to open an area that was uninfected. Q. … when you say at no time was that side of the wound involved, what side are you talking about? A. The medial side, the inside of the ankle. Q. Why not just remove the buttons from the lateral side? A. Because you can't. They're inaccessible. Q. So if you had thought that you wanted to remove those buttons, how would you have done it? A. I would have made an incision over the medial side and used an, an X-ray machine to find them, and then taken them out."
13. In cross-examination of Dr Miniter, no reference was made to any action of the surgeon prior to 30 June 2010. His evidence as to the situation on 30 July was that, in consultation with the infectious diseases team, it was agreed that the best approach was to remove the plates and screws, being the step taken on 4 August. He was cross-examined as to the operation report for that procedure: [23] "Q. Indeed, when you went in, you did remove the hardware laterally? That is, you took it out of the lateral side? Correct? A. Correct. Q. If I could take you to … the operation record … You say under 'Technique' in the second line 'removal of all remaining hardware laterally'. So could I just break that down a bit. What did you mean by 'remaining hardware'? A. The plates and screws - plate and screws. Q. What did you mean by 'all'? A. All the screws and the plates. Occasionally we leave screws in if they're hard to get out. Q. Sure. A. They can be very difficult to access. Q. When you say removal laterally, is that a description of how you removed all of the hardware? … A. No, it's the, the, the area that we approached, so on the lateral side of the ankle."
14. Counsel moved on to a question as to what Mr Old had been told about the operation, but the judge intervened: [24] "HIS HONOUR Q. The claim that's made against you, … is 'failure in August 2010 or thereafter to remove all infected or infective hardware, including the sutures and buttons'. I think what Mr Campbell is putting to you is that the entry under the heading 'Technique' … must mean 10 that you failed to remove the sutures and EndoButtons. I think that's a matter that requires comment from you. … A. Well, I, I made the decision not to proceed medially, for the reasons I've already given. And when I say I removed the remaining hardware laterally, I refer to the lateral portion of the wound. That's, that's what surgical shorthand would indicate. Q. So by choice of that expression, you don't accept that the leaving in situ of the sutures and buttons was a failure on your part? A. For the reasons I've already given, I believe I made a conscious decision not to explore that area. … And I think I was correct, because the organisms which grew from the medial - from the lateral side were significant, and I could have contaminated the other side of the wound, which remained uncontaminated until the future. Q. So if I then go to the second element of the claim …, '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', as I understand your evidence, your explanation for not recording the leaving of the EndoButtons in place is that this is explained by the fact that you have referred to the lateral approach? A. Correct."
15. The cross-examination then diverted to a separate issue. There was in evidence a letter written by Dr Senanayake on 18 August 2010 which referred to "removal of all of the hardware" during the operation on 4 August. The significance of that document was unclear. Indeed, the judge noted at the time that it gave rise to a possible inference that Dr Senanayake had "either misread or didn't understand fully the significance of what Dr Miniter had written." [25] It was suggested to Dr Miniter that the presence of some foreign material in the ankle would have had relevance to the infectious diseases team, to which he responded: "A possible relevance, yes." [26] The matter was followed up by the judge in the following exchange: [27] "Q. Yes but my question is this; once you wrote of the removal of all remaining hardware laterally, I understand your explanation for the choice of those words, was there any other relevant clinical information that you needed to convey to the infectious diseases team to ensure that the patient was appropriately managed? A. I don't think so, your Honour, and, in fact, that's borne out by his post-operative progress because he had complete recovery."
16. Dr Miniter was also cross-examined about his decision not to open the ankle medially to recover the remaining EndoButtons and TightRope: [28] "Q. So I want to suggest to you - and I need to put this to you - that in August 2010 you had the opportunity to remove the TightRope wires and the EndoButton and it would have been safe to do so. A. And I would have infected that medial wound. Is that what you're asking me? Q. No, I'm saying that it would have been safe to do so. A. I disagree, for the reasons that I've already given. HIS HONOUR Q. Just so I can understand your answer completely, I think your reason for that view is that had you done what was suggested, you would have infected the medial wound? A. Potentially so and then he may well then ended up with tibial osteomyelitis, your Honour. Q. In terms of seriousness-- A. Very serious. So you go from a single portion of this wound construct being involved to both sides being involved and deep infection in bone is difficult to manage. This is why I didn't do it. CAMPBELL Q. By this stage the plaintiff had been on a significant amount of antibiotic cover, correct, by the time he got back to see you in August 2010? A. Yes. … Q. As I understand your evidence, there wasn't any active signs of infection when you went inside in August 2010? A. Correct. … Q. There would have been no risk, then, over and above the risk - going into the lateral side, there would have been no additional risk to go into the medial side? A. Completely disagree. That shows an ignorance of medical practice, really. … Q. The risk of taking out the EndoButton in August 2010 was less than the risk of leaving it in and the TightRope wire through the bone and weighing up the risk between that and perhaps the infection that you might get, it was safer to take out the EndoButtons at that time? A. I disagree."
17. This evidence dealt squarely with the issue of breach of duty of care on the part of Dr Miniter. The case turned on a deliberate decision by an orthopaedic surgeon not to carry out an operative procedure for reasons which were clearly expressed and appeared to be plausible. A finding of lack of reasonable care depended upon either rejection of Dr Miniter's evidence as to his reasoning process, or expert evidence that the choice made did not reflect competent orthopaedic practice at the time. The judge did not reject Dr Miniter's evidence; it followed that the plaintiff's claim turned on acceptance of expert evidence that the decision not to enter the ankle medially would not have been made by a reasonably competent and careful surgeon.

Orthopaedic expert evidence

1. Mr Old obtained an expert report from Dr Robin Higgs, described as an Orthopaedic Consultant, Biomedical & Forensic Engineer. His first report of 3 December 2018 included the following opinion: [29] "It is now generally expected that treatment of infection should be supervised also by an Infectious Diseases Specialist. The appropriate surgical treatment of any infection usually requires removal of implant devices, along with a meticulous debridement [as necessary]. In the event that all foreign implant materials are not removed, then it is expected that the resulting infection usually persists, until such time as all foreign materials are removed. The presence of foreign fracture fixation device materials is well known to predispose to infection, and if not removed, to the persistence of infection. It is well known that the greatest danger to the success of internal fixation is sepsis. This opinion is derived from a basic understanding of the information that is taught to all students of surgery in general, and to all orthopaedic practitioners in particular."
2. Although answering a question relating to "August 2017 when the plates and the screws were removed", Dr Higgs opined: [30] "My consideration of the evidence has caused me to form the conclusion that, at the time of implant removal, all foreign body material [and implants] should have been removed. It is evident following my review of x-rays that have been taken, that two metallic anchor devices were not initially removed from the medial aspect of the distal right tibia."
3. It may be assumed that Dr Higgs understood the question as referring to the procedure carried out on 4 August 2010, although he did not correct the date. The report contained no further explanation of the basis for his opinions.
4. On 17 July 2019 Dr Higgs provided a further report. That report addressed different opinions expressed by Dr Braslins, an infectious diseases physician, and by Dr Martin Sullivan, a foot and ankle surgeon. Dr Sullivan took a different view from Dr Higgs: Dr Higgs' reply provided little explanation as to why Dr Sullivan's report was wrong in relation to the presence of infection on 4 August 2010 and placed reliance upon what he understood Mr Old to have been told by Dr Miniter both in July and August 2010 as to the removal of hardware.
5. Dr Martin Sullivan was engaged on behalf of Dr Miniter. In a report dated 16 May 2019, Dr Sullivan concluded: "In relation to the surgery on 4 August 2010, in my opinion A/Prof Miniter's decision to remove only the infected hardware and not any uninfected hardware was consistent with widely accepted peer professional opinion as complete competent professional practice in Australia in 2010. There was no indication to make separate incisions and remove hardware where there is no evidence of an infection. Also, the patient's improvement clinically based on clinical factors and bloods and response to treatment is consistent with his competent professional practice." Dr Sullivan also gave reasons for disagreeing both with the assumptions made and the opinions expressed by Dr Higgs.
6. On 18 October 2019 Dr Sullivan and Dr Higgs took part in a conclave which produced a joint report. The first question asked in the conclave related to the surgery on 30 June 2010. Dr Sullivan stated that, given Dr Miniter's concerns about the healing of the fracture, his decision to remove only the lateral anchors was competent practice. Dr Higgs' response suggested, although it reads as somewhat incoherent, that he treated that decision as not acceptable practice and that the whole of the device should have been removed at that stage.
7. Each expressed different opinions on the critical surgery carried out on 4 August 2010. The relevant opinions were based on certain assumptions proposed by the defendant in the following terms: [31] "4 August 2010 surgery 6. Professor Miniter deliberately took a lateral approach and did not explore the medial side of the plaintiff's joint. There was a clear infection in the plate and screws. Therefore, Professor Miniter removed the infected hardware only, being the plate and screws. 7. As the medial devices were at no time involved in any suspected infection, Professor Miniter did not remove them to reduce the chance of contaminating and causing osteomyelitis in an area which had at no time been clinically involved. Further, Professor Miniter considered that removing uninfected hardware would require an additional incision which meant a greater risk of infection. 8. The remaining hardware in the plaintiff's ankle from the May 2010 surgery at this point in time were the metallic endobuttons."
8. Dr Higgs expressed the following view as to the professional competence of the surgery undertaken on 4 August 2010: "Firstly it was not consistent with accepted practice in Australia at the time the surgery was performed to leave part of a device in situ when it was well known to the surgeon that other parts of the device were involved with infection. It should have been the case that the whole device was removed. Professor Miniter certainly didn't inspect the medial parts of the device and he had no reason to say that there was not an infection in that area."
9. The final sentence of this opinion was potentially inconsistent with the assumptions, depending upon what form of inspection Dr Higgs had in mind, and with the evidence. Professor Sullivan expressed the following opinion: "On the basis of assumptions 6, 7 and 8, to take out the infected plates and screws, which is on the lateral side of the ankle, which is where on clinical grounds infection was present, there was no reason to open up the medial side and remove the endobutton on the 4th of August 2010. His decision is consistent with widely accepted peer professional opinion, competent professional practice in Australia in 2010. It is my opinion that if he had opened the medial site at that time, then that is not consistent with widely accepted peer professional opinion as complete competent professional practice in 2010."
10. It is convenient to note the following further views expressed by the orthopaedic experts, being material relevant to the final finding as to causation: "4. If all fracture fixation devices had been removed in August 2010, would the Plaintiff in fact have experienced a better outcome in relation to the treatment and complications? The experts disagree. PROF SULLIVAN: It is my opinion leaving the medial button after the surgery on August 2010 had no impact on the outcome in relation to the plaintiff's treatment complications. Following the surgery on August 2010, the patient recovered without event until 2017. DR HIGGS: It is evident that following the surgery that was performed in August 2010, the plaintiff's condition must have deteriorated to a point where, in July 2017, he was admitted to the Calvary Bruce Hospital Emergency Department with a diagnosis of osteomyelitis. To say that all of the previous treatment had been satisfactory is proven to have been an error of judgment in the view that had the treatment been in accordance with professional peer surgical treatment at the time that the treatment was provided, then the plaintiff's outcome would probably have been a better one in relation to both the treatment and the complications."
11. The orthopaedic experts gave evidence jointly. Dr Higgs repeated his opinion that once infection was found (in June 2010) on the lateral side, the whole of the device should have been removed. In answer to a query from the trial judge as to his statement that Dr Miniter did not inspect the medial side, Dr Higgs effectively said that he had to remove the medial structures in order to determine that were was no infection there. [32] In response, Dr Sullivan noted that it was "not a wise thing to do to remove the plate and screws after they've only been in for six weeks." He referred to a paper published by Berkes et al in April 2010 which concluded: [33] "Deep infection after internal fixation of a fracture can be treated successfully with operative debridement, antibiotic suppression, and retention of hardware until fracture union occurs."
12. Perhaps nothing turned on this particular issue, but it was one of a number of examples of Dr Sullivan providing more precise and comprehensive reasoning to support his responses to questions than did Dr Higgs.
13. Dr Higgs was cross-examined as to the surgery in August 2010 and as to his view that the whole of the stabilising device should have been removed. Counsel for Dr Miniter put the following propositions: [34] "HORVATH: Just two matters arising from that if I might ask. Number 1, it wasn't the usual practice in 2010 to remove devices from the tibia and fibula simply because they were no longer performing a function was it? WITNESS HIGGS: Well there's no reason for them to be there. HORVATH: That wasn't my question. WITNESS HIGGS: Having, having been - having, having seen there'd been infection. HORVATH: But it wasn't the usual practice to simply remove devices from a tibula (as said) and fibula when they were no longer performing a function, was there? WITNESS HIGGS: No, but we're not removing them - we're not removing the device simply because they're not functioning. We're removing the device because there - it had previously been infected and subsequently rendered useless. There was every reason to remove the device. HORVATH: Professor Sullivan - because I'm moving to another topic, Professor Sullivan do you have any comment to make? WITNESS SULLIVAN: Only that the device on the medial side's in a different bone and there was no evidence to remove it, so I wouldn't - if it got infected after you removed it, so I think there's no evidence to remove the medial device. I - it's in a different bone. … CAMPBELL [for plaintiff]: … Dr Sullivan, just in relation to that last answer. One can assume if you're entering into the medial side with a new incision, would that be the way to remove the EndoButton, by entry into the medial side? WITNESS SULLIVAN: To [remove] the EndoButton you make a cut on the medial side of the tibia where the button is. Directly over it. CAMPBELL: Right. I think before you gave some evidence about drilling a larger hole and taking it out the lateral side. WITNESS SULLIVAN: Yes, so there's, there's two bones and two, two bits of metal and a bit of rope in between …. Basically, to get the rope out, if you had to get it out, you would have - you, you just can't - you don't have anything to actually get it out, you have to drill a bigger hole to get something in to grab it all out. So you're actually going to make a big hole between two bones and in this case, risk spreading the infection even more if you did from the lateral side. To get the button out of the medial side, you have to make a cut on the medial side. So it's more that tunnel was in relation to the bits of rope. HIS HONOUR: In relation to that process, when you're evaluating whether or not to take the button off the medial side by opening that end, what weight do you place on the fact that it was mentioned earlier, namely that infection can track along the rope or cable? WITNESS SULLIVAN: You, you basically would be aware of that I'm sure - I wasn't obviously at the surgery and not aware of what Professor Miniter was thinking but certainly if it was me, it would be something I'd be aware of but - and whilst that could happen, doesn't mean that I, would given there was no evidence of that actually occurring at the time. … CAMPBELL: But I mean, 12 weeks after the initial drilling of the hole when the braided cable was inserted if it was weeks or within three months or four months, one would expect it to come out reasonably easily, would you accept - WITNESS SULLIVAN: No. No, you wouldn't. In fact, passing it through, you drill a hole just to - when you actually insert them, it's got to be actually quite tight. It can't be loose otherwise the construct is not stable. So, so whilst - for the purposes of what in reality is, no, it, it's actually the threads - to try - if you try to get them out, it's actually not as easy as it would seem."
14. Although it was not articulated so clearly to Dr Miniter in cross-examination, counsel for Mr Old questioned Dr Sullivan as to why it was appropriate to take out the hardware from the lateral side, but not the medial. The question and answer were as follows: [35] "CAMPBELL: But the very reason why Dr Miniter went back to remove the lateral plate and screw in August 2010 was because he thought that it would give rise to future infection …. It wasn't because he thought the infection had reappeared. In fact, as far as his clinical examinations are concerned, leading up to August 2010, he did not think that the site was infected but he still went back in to remove that hardware … and the reason being is that he didn't want to give risk to - for that to give rise to future infection. That is precisely the reason I want to suggest to you why he should have removed the rest of the construct within the tibial, fibula bones. WITNESS SULLIVAN: And, and the thought process would be by opening up the medial side that you could actually either create an infection. Remember in making cut, every time you cut yourself, there's a risk of infection or that the - spreading the infection. So it's, it's a, it's a decision that, that you have to make at the time and he made a decision not to remove it and I think that's a rationale decision to make at the time."

Infectious diseases experts

1. It was an assumption underlying Dr Higgs' opinion that the infection which was discovered in 2017 was a continuation of the infection which was identified in August 2010 on the lateral side and had lain dormant for at least six years. Dr Phillip Braslins, consultant physician in infectious diseases and internal medicine, noted: "It is true that Staphylococcus aureus can lie dormant in a biofilm of a fixation device that has been infected. I do not think this is the case here because the cultures of the fixation devices that were removed on 4 August 2010 grew Corynebacterium jeikeium and Staphylococcus capitis, not Staphylococcus aureus. If the endbutton/Tightrope devices removed on 25 July 2017 had been infected on 4 August 2010 then the endbutton/Tightrope devices should have grown Corynebacterium jeikeium and Staphylococcus capitis when they were eventually removed, not Staphylococcus aureus."
2. It is evident from the foregoing discussion that any obligation to remove residual hardware turned on the risk of infection resulting from the continued presence of the redundant material. That risk was largely a matter for consideration by infectious diseases experts, although their views would not necessarily govern what constituted competent orthopaedic practice in Australia in 2010. Nevertheless, it was inevitable that they were asked to express opinions touching on that topic and did so. Dr Guinness, the infectious diseases expert engaged for the plaintiff, expressed an opinion in his original report as to whether it was "required to remove all hardware, including the tightrope device". He responded: [36] "Conventional wisdom is that in an infected prosthesis, or fracture with hardware inserted, it is desirable that all foreign material should be removed …. This is a controversial area, and fracture stability is always an important consideration. I am not competent to comment further from an orthopaedic perspective."
3. Dr Braslins addressed the following question: [37] "5. Was it appropriate for the defendant to leave the hardware situated medially alone in 2010 to avoid the risk of infection (or cross-infection) from the hardware situated laterally? It is generally recommended that all infected devices should be removed in order to cure a prosthesis related infection. However, the clinical situation and goals of therapy for infections of fracture fixation devices are not exactly the same as those which apply to infection of prosthetic devices like an artificial joint. 'The goals of treating infection associated with internal fixation devices are consolidation of the fracture and prevention of chronic osteomyelitis. Thus, in contrast to prosthetic joint associated infection, complete eradication of infection is not the primary goal, since the device can be removed after consolidation. (Trampuz and Zimmerli 2006)'. Further, 'the nature of the surgical intervention in patients with infected fracture-fixation devices depends on the type of device, the presence or absence of bone union, and the patient's underlying condition …. If the implant is stable, debridement with retention of the fracture-fixation device combined with long-term antibiotic treatment is reasonable.' Mr Old had debridement with removal of grossly infected devices and retention of devices which were at a distance from the site of infection. The endbutton/Tightrope devices were on the opposite side of Mr Old's ankle. It would be reasonable, in my opinion, for a surgeon to form the opinion that these devices could be left in place until there was confirmed fracture union. The decision on whether or not to operate at a later date, to remove the retained devices, would be made with consideration given to the risk of a new infection or disability caused by further surgery. I can fully understand why the endbutton/Tightrope devices were left in place, after a long course of oral antibiotic therapy (from August until November 2010), while there was no clinical or laboratory evidence of infection from December 2010 until May 2017. I think many of my infectious diseases physician colleagues would agree with me."
4. A joint report of the conclave of infectious diseases specialists, held on 8 October 2019, included the following question and answers: [38] "10. What function were the endo-buttons performing in and subsequent to 30.6.10 which would justify their retention when the infected plates and wires were removed? The experts answer this question on the basis that the date is incorrect and are giving an answer with regard to the 4th of August 2010. PROF BRASLINS: We are not orthopaedic surgeons but we cannot see any function for the retained endobutton. PROF GUINNESS: Only one endobutton remained which had no anatomical function. Hardware is frequently retained in uninfected sites. In this case prior infection in the operative zone may have suggested its removal prudent. PROF BRASLINS: I agree that often times hardware is left in place even when it doesn't serve any useful function because removing it causes more trouble than its [sic] worth."
5. In their joint evidence, both Dr Guinness and Dr Braslins were asked questions in relation to the steps taken by Dr Miniter on 4 August 2010. Dr Guinness gave the following evidence: [39] "Well, on 4 August, the wound was deemed to be clean. It was deemed to be uninfected and elective procedure was performed and the plates and screws were removed. As I said earlier, it was a surprise that bacteria were ultimately recovered from that wound and therefore subsequently treated, so if the wound was deemed to be clean at the time, I would have thought that they could have safely excised the medial button. Now we've heard evidence in the Court that there are technical difficulties. We heard yesterday from Professor Sullivan that the removal of the thread is not just a question of pulling it out. You in fact have got to use a drill procedure or a high-pressure flush procedure or whatever. But if there was concern for contamination of the medial site, which had been unopened hitherto, as I'd suggested in my conclave report, then an operation could have been performed a month down the track once the corynebacterium infection had been controlled, to remove this foreign material. I think the decision had been taken in the beginning, it's safe to leave it, and so I don't know …. The two orthopaedic surgeons, one said it's not safe to leave material behind in the place of infection. Professor Sullivan says it is if it's going to be ultimately removed when the fracture is stable, and Professor Braslins and I both agree with Professor Sullivan, that it's safe to leave plates and screws behind and remove them when the fracture is stable. The issue is, was it safe to leave the braided material, the suture material in the cavity, and was it safe to leave the medial button?" The answer continued on the following page of the transcript: [40] "WITNESS GUINNESS: Well, I would feel that all foreign material should be removed in a case where sepsis has been established. In this particular case sepsis has been established not once, but twice. Not with one bacterium but with four, and so I would feel that any retained foreign material is a potential site for harbouring latent bacteria which can cause a recurrence of infection later on. At the time I wrote this report, I was unaware that not only was the medial end button retained but the thread, the suture which went through the tibia and fibula had also been retained. HIS HONOUR: Professor Braslins, any comment? WITNESS BRASLINS: I think it's not unreasonable to leave a device in place if it's unaffected following a long course of antibiotics which, to all appearances, has eradicated the infection. On the balance of probabilities, I think the infection would have been eradicated by that treatment. Now I'm talking specifically about corynebacterium and staph capitis because I've already opined that the staph aureus and pseudomonas infection was previously eradicated. Now we're referring to the different infection of staph capitis and corynebacterium so I think it's not unreasonable to assume that that infection was eradicated following the two-month course of antibiotics - three-month course of antibiotics between August and November 2010 and then it comes down to a risk/benefit analysis, I think, about the risk of performing a procedure versus the potential benefit. As infectious diseases physicians, we recommend removal of all devices because we want a hundred per cent success rate but that has to be balanced in the context of the residual risk versus the risk of any procedure performed to remove those devices and that, at the end of the day, I think, is a clinical decision of the orthopaedic surgeon. HIS HONOUR: When you say it should be presumed that the infection was eradicated, what allowance, if any, do you make in that conclusion, when reaching that conclusion for the prospect that there may have been dormancy of these organisms near this site? WITNESS BRASLINS: Yes, again it comes down to a risk/benefit analysis. Dormancy is possible but uncommon, rare to occur after a prolonged period of antibiotics and I take into account the clinical progress, the absence of any clinical findings, the absence of any symptoms and the normal blood tests that occurred not just in the period of treatment but immediately after the treatment was ceased and then for the next seven years. There was no clinical or laboratory evidence of residual infection."

Assessment of breach of duty

1. Acceptance of Mr Old's case with respect to breach of duty turned on acceptance of Dr Higgs' opinions in preference to those of Dr Sullivan. As noted by counsel for the respondent, there were a number of reasons which favoured acceptance of Dr Sullivan. First, there was the question of relevant experience. Dr Higgs ceased operating in 2001 and had never used the tightrope fixation device. [41] By contrast, Dr Sullivan had specialised in foot and ankle surgery since 1995 and was, at the time of trial, the Director of the North Shore Private Foot and Ankle Clinic, having been the Chief of the Foot and Ankle Unit in the Department of Orthopaedic Surgery at St George Hospital from 1995-2001 and a visiting medical officer in the Department of Orthopaedic Surgery at St Vincent's Private Hospital, Sydney since 1994. [42] He has an extensive record of publications in relation to foot and ankle injuries, especially since 2004. [43]
2. Dr Sullivan was cross-examined with respect to his experience with the tightrope system: [44] "CAMPBELL: So it was perfectly safe, I want to suggest to you, after there was no visible sign of infection in August 2010, to remove the medial EndoButton and the braided cable. Do you accept that or do you not accept it? WITNESS SULLIVAN: No, I don't accept it. CAMPBELL: What risks were there? WITNESS SULLIVAN: Every time you make a cut in any patient risks being infected. In my view, if there's no indication to remove something and make a separate incision on a different bone, then I don't think that's - it's - in my practice, I wouldn't do that. CAMPBELL: Do you have experience in relation to this particular construct? WITNESS SULLIVAN: The TightRope? CAMPBELL: Yes. WITNESS SULLIVAN: In terms of the knotless TightRope I now have experience with over a hundred professional athletes. Just professional athletes, let alone general population. It's something - it's a device - the knotless TightRope that I've used and lectured and spoken at international meetings about extensively. CAMPBELL: That was a device that was - did that become available after 2010? WITNESS SULLIVAN: Yes. So I didn't use the knot - knotted device because there were reports of problems with the knot. So once they developed the knotless device, I used the knotless device once it was developed."
3. Secondly, Dr Sullivan's reasoning addressed the practical issues. Thus, following the passage set out above, Dr Sullivan gave evidence of a case in which he had removed the lateral button, but, in the absence of any infection on the medial side, had not made a further incision. The following exchange took place: [45] "HIS HONOUR: So in that case what evidence did you have before you to indicate that there was no infection on the medial side? WITNESS SULLIVAN: There was no redness on the medial side, no tenderness. Also, you know, you make a decision based on - it's like, it's a spectrum. So … - it was a superficial infection, go in and do - again I could not come - in fact to me it would be negligent to open the medial side."
4. Dr Higgs was given an opportunity to respond and stated: [46] "WITNESS HIGGS: Yes, well, essentially I do disagree with, with the concept of leaving the device in there - that's been my evidence all along in that - in the presence of infection. The fundamental principle is that the entire implant should be removed, and I stand by that evidence."
5. That response did not come to grips with the specific issue of exacerbating the infection; nor did it address the risks of further damage to soft tissue and bone caused by removing the tightrope. Finally, in so far as Dr Higgs thought that the whole of the surgical hardware should have been removed during the 30 June 2010 surgery, he did not address Dr Sullivan's reasoning as to the risk of an adverse outcome because the fracture had not fully healed, nor the underlying support for Dr Sullivan's position in the contemporaneous article by Berkes et al.
6. Thirdly, Dr Sullivan's opinion conceded room for judgment, noting, "you make a decision based on … a spectrum." Dr Braslins' opinion, set out in full at [48] above, also accorded space for judgment, noting that "[t]he decision on whether or not to operate at a later date, to remove the retained devices, would be made with consideration given to the risk of a new infection or disability caused by further surgery." Dr Braslins was able to "fully understand why the endbutton/Tightrope devices were left in place, after a long course of oral antibiotic therapy …, while there was no clinical or laboratory evidence of infection from December 2010 until May 2017." By contrast, Dr Higgs' position was dogmatic and appeared to leave little room for judgment in the specific circumstances of the case.
7. Dr Higgs' evidence does not, in my view, provide an adequate basis to establish a breach of duty by Dr Miniter in failing to remove the medial hardware on 4 August 2010. I would accept that Dr Miniter's decision involved a matter of professional judgment as to which the opinions of professional peers may vary. That does not demonstrate that his decision fell outside the range of competent professional practice. If it were necessary to determine whether the decision was the correct one or not, I would prefer the reasoned justification of Dr Sullivan for considering that it was correct.
8. As noted in the passages cited above, Dr Guinness thought it not unreasonable to leave the medial side of the ankle if there were a concern that the lateral side involved a level of infection, although sepsis was not apparent according to the operation note. His concern that four separate bacteria had been located in the wound could not have arisen until after the pathology results were received for the 4 August 2010 operation. It appears to have been that factor which led Dr Guinness to suggest that the remaining hardware should have been removed subsequently, after it was believed that infection had been either eradicated or suppressed by antibiotics. No doubt because that case had not been pleaded, no question was put to Dr Guinness as to whether it would have been unreasonable for Dr Miniter to fail to advise Mr Old to undergo a further procedure once the pathology results were known. Nor was Dr Miniter asked questions along those lines. Indeed, there was no relevant exploration with Dr Miniter as to his knowledge and response to the pathology results of 4 August 2010.
9. Suffice it to say, the evidence of the infectious diseases experts provided no basis for concluding that Dr Miniter had, on the case pleaded, and to which Dr Miniter had responded, breached his legal duty of care to Mr Old. Both Dr Guinness and Dr Braslins expressed the view that the disclosure of four separate infectious agents in Mr Old's ankle suggested a significant breach of infection control procedures at the hospital. However, it was not suggested that Dr Miniter was responsible for such breaches, nor was the hospital sued.
10. It follows that no breach of duty was established on this analysis of the evidence.

Reasoning of trial judge

1. The trial judge came to a contrary view. It is necessary to consider the basis of his reasoning in order to determine whether he enjoyed some advantage which should lead an appeal court to respect his conclusion and not intervene.
2. The trial judge preferred the evidence of Dr Higgs to that of Dr Sullivan. The judge gave six reasons for his preferring the evidence of Dr Higgs. None of these is in my view persuasive, but they must be addressed.
3. The first reason was expressed as follows: "[357] 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."
4. This reason contained two limbs, the first dealt with "the identified risk of harm" and the second with the risk of "bacterial osteomyelitis" On the appeal, the respondent took issue with the formulation of the risk of harm as overly specific. Counsel adopted the warning with respect to formulating a duty of care identified by Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan. [47] "[192] A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach. That inquiry involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk."
5. There is substance in the complaint as to the particularity with which the risk was identified, [48] but the issue is not of immediate concern. There was a risk of infection developing in the right ankle whether or not the remnants of the tightropes were left in situ; there is no doubt that there was a duty to take reasonable precautions against that risk. The first limb provided no basis for preferring one opinion to another.
6. The second reason given by the trial judge was that the redundant medial remnants of the system "served as a potential nidus for possible infection". To leave the components in situ "without a specific plan of management, including for removal at a later time, risked the potential harm". [49]
7. Again, the statement may be accepted: however, it provided no basis for preferring the opinion of Dr Higgs to that of Dr Sullivan. Further, it will be necessary to return to the possibility that removal might have taken place at a later time. That approach was neither pleaded, put to Dr Miniter, nor addressed by the orthopaedic experts: it was raised by Dr Guinness. It appears, however, to have been the step which the judge ultimately held to involve a breach of duty, a matter to which it will be convenient to return later.
8. The third reason relied by the trial judge was as follows: "[359] 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."
9. The "theoretical construct" identified by the trial judge appears to have been an inference drawn from the evidence of Dr Sullivan. It is true that Dr Higgs considered that all elements of the surgical hardware should have been removed on 30 June and, if not then, on 4 August. That was not because they were to be viewed as "one system" but because he considered the non-removal of any element constituted an undue risk of infection. It is difficult to identify this reason as doing more than stating the issue on which the experts disagreed. Dr Sullivan was undoubtedly challenged as to the basis of his conclusions, but not by suggesting he had adopted some "theoretical construct" which was not "reasonable". This ground provided no basis for preferring one opinion over another.
10. The fourth ground was in effect an alternative formulation of the third, but identified the conflicting approaches, not as involving separate components of the hardware, but as involving different compartments of the ankle. The passage was completed by the following statement: [50] "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."
11. There are three problems with this analysis. First, it appears to add nothing to the issue identified as whether elements of the surgical hardware should remain. That was the focus of the case, not whether bacterial infection could move from one area to another. Secondly, views of the microbiologist in this respect were not directly relevant to the identification of competent orthopaedic practice. Indeed, Dr Guinness, in answer to a question as to whether Dr Miniter acted in a manner which was widely accepted as competent professional practice stated: [51] "There is a wide variation in orthopaedic practise [sic] in Australia. Two orthopaedic expert witnesses in this case have widely differing opinions. I cannot judge orthopaedic practise [sic], but speak from a clinical microbiologist's perspective. Our advice is frequently ignored by our orthopaedic colleagues."
12. Thirdly, if the infectious diseases evidence were to be taken into account, it would be necessary to consider the extent to which the continued treatment by the infectious diseases experts at the hospital was itself a reasonable and sufficient precaution against the development of future infection. The trial judge accepted the reported view of Dr Senanayake that by November 2010 Mr Old was free of infection: he remained free of infection until late 2016, a period of six years. The later infection of the right ankle was not diagnosed until May 2017.
13. The fifth reason given by the trial judge for preferring Dr Higgs was that he regarded Dr Miniter's visual examination of the medial side of Mr Old's right ankle as an insufficient basis for concluding that no infection was developing on the medial side. [52] This reasoning merely reflected the risk that bacteria remained in or about the surgical hardware. That was not in dispute. The question was how best to limit the possibility of a future attack of bacterial osteomyelitis. Merely to state the problem provided no basis for preferring one solution to another.
14. The sixth reason given by the trial judge was significant and should be stated in full: "[362] 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."
15. This reasoning found no support in the evidence of Dr Higgs, who was of the view that all hardware should have been removed on 30 June 2010. The possibility of a later removal of the medial hardware was not put either to Dr Sullivan or Dr Higgs nor, more importantly, to Dr Miniter. Although it envisaged a further procedure "a month or so later", that was inconsistent with the conclusion reached by the trial judge in considering causation where the judge stated: "[465] In proceeding to the next analytical step in the causation analysis, the operation date of 4 August 2010 should not necessarily be seen to be the starting point of the plaintiff's claimable loss. This is because Dr Miniter's clinical judgment that he did not want to create a cross-infection on the medial side on that date on account of an already established lateral infection, was in effect a clinical judgment acknowledged by Professor Guinness. It was that acknowledgment which based his commentary to the effect that an operation for removal of the redundant medial hardware could have been delayed by a further month or so after 4 August 2010 whilst the lateral infection was treated and brought under control, if not eradicated. At that time, a clean elective procedure could have been undertaken. [466] That said, an eradication of infection within a month or so of 4 August 2010 seemed on the evidence to be an unlikely prospect given it was of a deeply entrenched and septic nature. Absent evidence of the existence of a bright line date for probable eradication of an infection, some further leeway is required beyond 4 August 2010 for establishing a notional starting point for identification of the plaintiff's loss. [467] On the evidence, I consider that a fair starting point for identifying the commencement of harm and loss would be in the range between December 2010 to January 2011. That conclusion has its foundations in Dr Senanayake's letter dated 3 November 2010 to Dr Miniter, in which Dr Senanayake stated that the plaintiff's osteomyelitis infection could be considered as having been cured."
16. In my view, the reasoning of the trial judge provided no persuasive basis for rejecting the opinions of Dr Sullivan. Dr Guinness, in the passage set out above, expressed no view as to which opinion reflected competent orthopaedic practice in 2010. Dr Braslins, whose evidence on this question the trial judge disregarded, thought Dr Miniter's approach reasonable and understandable.
17. It is convenient also to note the following response by the trial judge to that which he understood to be the contrary view: "[363] 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."
18. Although the four numbered responses were said to arise "on the evidence", as is clear from the second one, there was no evidence providing support for the responses. More importantly, the responses invite the question as to why a reasonable orthopaedic surgeon might not have expected antibiotic treatment to deal with any dormant infection on the medial side and why a reasonable orthopaedic surgeon might not have properly made the same assumption that the trial judge did as to treatment of cross-infection caused by an operation.

Breach of duty - conclusion

1. Dr Miniter stated that he made a deliberate choice not to remove the remaining Endobuttons and braided cord from the medial side of the appellant's ankle. The judge accepted that evidence. No question was asked of Dr Miniter as to what an operation on the medial side would have involved: however, Dr Sullivan gave evidence of the difficulty of removing the cord from the lateral side, and the possible need to drill a "bigger hole" in the two bones (the fibula and tibia) through which the cords ran. No consideration was given by Dr Higgs, nor the trial judge, to the significance of the proposed additional procedure.
2. Although the whole of the case turned on the risk of future infection (and the risk of harm should properly have been so identified), the evidence clearly demonstrated that a plan of management had been put in place following the operation on 4 August 2010, involving the infectious diseases team who took over the treatment of Mr Old and considered that, by November 2010, his osteomyelitis had been cured. There was no consideration by Dr Higgs, or the trial judge, as to why that did not constitute a reasonable plan of management for the further treatment of Mr Old. Dr Miniter discussed the management plan with Dr Senanayake.
3. Dealing with the pleaded case, the judge identified and addressed the issues in the following terms: "[368] The plaintiff's case was based upon the following pleaded particulars of negligence: (a) Failure in August 2010 or thereafter to remove all infected or infective hardware including the sutures and buttons; (b) 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; (c) Failure to devise implement or maintain an effective treatment plan for the plaintiff's post-operative infection; (d) Failure to refer the plaintiff for investigation by an infectious diseases specialist. [369] 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. [370] 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]."
4. The trial judge appears to have upheld Mr Old's claim with respect to particulars (a) and (b). As to par (a), the judge concluded at [425] that reasonable care in this instance "meant not leaving elements of redundant surgical hardware in situ". That finding was ultimately based on the preference for the evidence of Dr Higgs which has been discussed above. In my view the evidence did not support such a finding. Indeed, in the application of the three paragraphs of s 43(1) of the Civil Law (Wrongs) Act, the judge also appears to have accepted that view. In considering "precautions required of a reasonable person" the judge noted that "a reasonable person in the position of Dr Miniter had a number of options at his disposal in the nature of available precautions". [53] The first was to obtain Mr Old's consent to the course he took: the failure to take that step was not a pleaded particular of negligence. [54] The reasoning continued: "[401] In my view, since Dr Miniter clearly made the decision to proceed without discussion with the plaintiff, he ought to have taken a series of precautions along the following lines of what a reasonable person in his position, being an orthopaedic surgeon of ordinary skill and competence, should have done in the circumstances, accepting that it was open to him as to whether or not he should make the cut on the medial side, having regard to the reasons he gave for not doing so. [402] First, Dr Miniter could have taken the precaution of making an unambiguous operation note and a related communication notation in the hospital records, and in his communication to other relevant practitioners. That step was indicated so that soundly based future treatment decisions could be made for the plaintiff based on accurate historical information. Instead, he left an ambiguous operation note, as has already been identified. The evidence tendered does not show any note either by him or someone on his behalf in the clinical progress notes, or in the form of a letter to the treating general practitioner, …. [403] Secondly, Dr Miniter could have taken the precaution of informing his patient, the plaintiff, as to what was done and what was not done in the operation on 4 August 2010, and what still needed to be attended to in the future and when, if the preferred decision was to leave redundant hardware in situ. There is no evidence the plaintiff was informed by Dr Miniter that he still had remnant redundant hardware in his ankle that had the potential to form a nidus for possible future infection. [404] Thirdly, since redundant medial hardware had been left in situ on account of the presence of infection on the lateral side, Dr Miniter ought to have taken the precaution of establishing a future management plan for the plaintiff that included informing him of the continued presence of that material, the significance of its continued presence concerning the possibility of future infection, also including a discussion of a plan for a clinical review, with a view to arranging for its removal at a suitable time. There is no evidence that Dr Miniter took any of those precautions. [405] Fourthly, the evidence discloses that on 4 August 2010, and thereafter, it was essential for Dr Miniter to take the precaution of arranging for an infectious diseases specialist to take on the responsibility of managing the plaintiff's then current treatment needs for so long as his osteomyelitis was considered to be active and not cured. Appropriately, Dr Miniter in fact took that latter precaution by ensuring that Dr Senanayake, the hospital's infectious diseases specialist, took responsibility for the management and treatment of the plaintiff's infection issues. [406] In my view, it follows that in only taking the last of those identified precautionary steps, Dr Miniter took insufficient precautions in comparison to the plaintiff's circumstances of risk, and in relation to his need for appropriate information that was relevant to his future care needs: s 43(1)(c) of the CWLA."
5. A number of observations should be made with respect to this reasoning. First, as to the second course, at [403], the failure to inform Mr Old that aspects of the hardware had been left in his ankle formed no part of the case in negligence that the judge was addressing. Nor was it clear that such a breach had any consequential significance. At [404], the judge identified two issues: one was the establishment of a future management plan, the other the provision of information to Mr Old. The latter point has been addressed. As to the former point, that appeared to be covered by the passing of responsibility to the infectious diseases team, noted at [405] and acknowledged at [406]. The finding of "insufficient precautions" at [406] therefore relies upon the failure to inform the patient that elements of the hardware remained in his ankle, which was not a pleaded particular of negligence and appears to have had no practical consequence.
6. What remained in the judge's reasoning appears to have involved an acceptance of particular (b), namely a finding of failure accurately to record and describe the surgery carried out on 4 August 2010. That turned on the statement in the operation record that all hardware had been removed "laterally". However, Dr Miniter refused to accept that there was any ambiguity or lack of clarity in the operation note: no expert evidence was called to contradict that opinion, nor to establish that the note was inadequate according to current orthopaedic practice.
7. An inference was available that Dr Senanayake believed that all the hardware had been removed. That inference could be drawn from a letter which used that language and which was sent to Dr Miniter. What in fact Dr Senanayake believed is not known: he was not called. Nor is it known whether, if in fact he had misunderstood the operation note, but had been corrected, he would have taken any other course in his treatment of Mr Old. The trial judge concluded: "[411] In my view, at or shortly after the operation on 4 August 2010, a reasonable person in the position of Dr Miniter would have made a clear note as to what hardware components had been left in situ on that occasion."
8. That conclusion was not precisely stated in terms relevant to breach, namely that a reasonable person in the position of Dr Miniter would not have failed to make a note of the components left in situ. Even if so stated, there was no expert evidence to support such a finding as to the limits of competent professional practice. Breach of duty on that basis cannot be upheld.
9. It remains to consider the "alternative case", namely that it may not have been unreasonable to leave the medial hardware in situ on 4 August, but that steps should have been taken at an appropriate time, when the infection had been successfully treated, to remove that hardware. While acknowledging that such a case was not pleaded, noting that a subsequent removal procedure had been suggested by Dr Guinness, the judge held that the issue "was sufficiently identified in the evidence for it to be considered at trial."
10. As appears at [75] above, on one view it was this case that the judge upheld. However, he should not have done so. First, the findings of the trial judge (which involved elements of uncertainty as to timing and circumstances) were not put to Dr Miniter. No doubt that was because they were not pleaded and were not identified in the expert reports prepared prior to trial, except belatedly by Dr Guinness.
11. Secondly, no attention was given in considering breach to the joint evidence of the infectious diseases experts cited above, which alone supported the "later procedure" hypothesis and provided no affirmative support for the pleaded case.
12. For these reasons, the proper conclusion is that there was no breach of duty on the part of Dr Miniter in his treatment of Mr Old. The claim should have been dismissed on that basis.

Causation

1. While the judgment below should be upheld on the basis of the first matter raised in the respondent's notice of contention, it is appropriate to address the challenge brought by the appellant to the failure to find that the breach identified by the trial judge caused the harm, namely the osteomyelitis which was diagnosed and treated in May 2017.
2. The appellant submitted that the trial judge erred in failing to find a causal connection established between the retention of the EndoButtons and braided cord on the medial side of the ankle and the osteomyelitis suffered by Mr Old in 2017. For the reasons explained below, in my view the appellant's submissions in that regard should be accepted. As it will not affect the outcome of the case, the reasons may be identified more succinctly than might otherwise have been appropriate.
3. The point on which the infectious diseases experts essentially differed was the likelihood that the infection which was addressed in May 2017 was a recurrence of an infection with staphylococcus aureus which had been present in June 2010, although not identified following the operation on 4 August 2010, or was the result of a fresh infection. Little turned on this dispute, because Mr Old was content to rely upon either hypothesis.
4. The element of "factual causation" identified in s 45(1)(a) of the Civil Law (Wrongs) Act required that "the negligence was a necessary condition of the happening of the harm". This common form of the statutory provision [55] may be formulated in terms of a counterfactual, namely whether the claimant would have suffered the harm absent (or but for) the negligence of the defendant.
5. The relevant conduct of Dr Miniter must, for this purpose, be the failure to remove the hardware on the medial side of the ankle. Mr Old's case was that the evidence supported a negative conclusion to the counterfactual question on either of two bases. The first basis was that the cord in the cavity in the bone, and the EndoButton securing it, provided an environment in which bacteria could lie dormant and undetected for many years before a further outbreak of infection. In the alternative, a fresh injection of bacteria, possibly through a later wound, could readily lodge in the same foreign material, giving rise to a further outbreak of infection in that area. The fact that reinfection (or a new infection) arose in that area suggested one of two occurrences. Because the infection occurred in the right ankle and nowhere else, it could readily be inferred that the source of the infection was either the foreign material or simply the structure of the ankle. Evidence that a recurrence or reinfection was an extremely rare event was relevant to the steps Dr Miniter should have taken in August 2010, but was irrelevant to the question of causation.
6. There was quite limited evidence directed to the critical issue. In the course of the joint evidence, the following exchange occurred between Dr Guinness and counsel for the respondent: [56] "HORVATH: Is there any particular period of time that you would expect staph A to remain dormant? It could be for 30 years or? WITNESS GUINNESS: It can remain dormant for decades. HORVATH: And it can - WITNESS GUINNESS: And individual case - cases have been reported where that has been so. Yes. HORVATH: Yes, and it can remain dormant, I take it, whether there is or is not fixation devices left in an ankle? WITNESS GUINNESS: I believe there's - if - yeah, I think that depends upon the degree of primary damage that was done. So if osteomyelitis had become well established, and such does not appear to be the case here, then in fact it is more likely to reoccur down the track. But yes, you can get recurrence of infection even in the absence of a foreign body, but the presence of a foreign body will increase the likelihood very greatly. HORVATH: Yes. Here, the physicians and the orthopaedic surgeon but the infectious diseases physician treating Mr Old in the second part of 2010, he described him as having had osteomyelitis, you would agree with that wouldn't you? WITNESS GUINNESS: Yes. HORVATH: And once someone has had osteomyelitis with staph A it's possible for the staph A to come back regardless isn't it? Even if there is no fixation devices? WITNESS GUINNESS: Yes."
7. Secondly, the following exchange occurred between the trial judge and Dr Guinness, which started with a discussion as to dormancy but continued as follows: [57] "WITNESS GUINNES: … Even if, however, the staphylococcus causing the infection in 2017 was not the original one and dormancy wasn't the cause of the infection, I believe the presence of a foreign body in the ankle was the prime determining factor for relapse of infection or reinfection at that site. Professor Braslins believes it may - it was most likely to be a blood borne infection. I could accept that. But the blood borne infection wouldn't have settled in that ankle if there hadn't been, I believe, foreign materials still present. That provided the focus of attack, whether it be latent staphylococci or more recent itinerant staphylococci. HIS HONOUR: Do you have a comment on that Professor Braslins? WITNESS BRASLINS: Yes, the presence of any foreign material does increase the risk of infection …."
8. That evidence appeared to support the proposition that it was the foreign material which was the likely source of the infection in 2017. However, the joint evidence ended with the following exchange between counsel for Mr Old and Dr Braslins: [58] "CAMPBELL: Two questions, your Honour. Firstly, as I understand it, your hypothesis said if the staphylococcus entered the body November 2016, it colonised onto the retained hardware, correct? WITNESS BRASLINS: It entered the site of previous surgery and as I indicated earlier, I'm unable to say whether the initial site of the later infection that occurred in 2017, whether it was in the lateral or the medial aspect of the ankle. Yes. As I understand the appearance of the ankle when the surgery occurred in 2017 was that the infection was more florid at the lateral aspect of the ankle or of the surgical site." An inference may have been drawn from that observation that the later infection arose at the site of the procedure undertaken in August 2010, and not on the medial side of the ankle. That evidence would have counted against the proposition that the foreign material was a necessary element in the occurrence of the harm. However, the evidence was somewhat equivocal and Dr Braslins had earlier accepted that the braided tightrope constituted an attractive surface for bacteria: [59] "CAMPBELL: We heard yesterday from Dr Miniter there's about four of these cables that make up the construct, that is the TightRope wire. And that material would be pretty attractive I want to suggest to you, to bacteria. Would you accept that? WITNESS BRASLINS: All foreign bodies can harbour organisms and the greater the surface area, the more risk of harbouring an organism, so in that sense if it's braided and has a larger surface area than a flat un-braided plastic wire, then yes, I agree with your suggestion. HIS HONOUR: Is it just the surface area or is it also the irregularity of the surface area? WITNESS BRASLINS: I'm not sure that that's been specifically scientifically studied, but that would be a reasonable hypothesis, that the irregularity of the surface would also contribute to the increased risk of organisms performing, producing glycocalyx, a slime, if you like, where they can, where they can reside. … CAMPBELL: Do I understand it from your previous answers that the suture of the TightRope is even more likely to harbour infection or be a subsequent nidus for infection? Do you accept that? WITNESS BRASLINS: The degree of increased risk is hard to quantify but there is some increased risk. When you talk about risk ratios, if the underlying risk is very, very, very small, then even a risk ratio of two or three still results in a very low risk."
9. Assuming that Dr Braslins' reference to a risk ratio of two or three referred to what is sometimes described as "relative risk", that observation would involve at least a doubling of the risk and thus suggest that the event which in fact occurred was more likely than not to have been caused by the retained foreign material.
10. Each of the passages set out above involved something of a diversion from the principal topic under discussion. Thus Dr Braslins wished to talk about a "very, very, very small" risk, a matter of considerable importance in relation to the taking of precautions, but of no importance with respect to causation of a risk which has materialised. [60]

Causation - reasoning of trial judge

1. The dispositive reasoning of the trial judge commenced with the following propositions: "[477] The relevant question therefore, is whether the emergence or recurrence of an infection in the plaintiff's right ankle in mid-2017 can reasonably be said to be due to fault on Dr Miniter's part. [478] The plaintiff faces the particular challenge of affirmatively proving beyond conjecture that the facts of this case displace the general proposition identified in the evidence, namely, that it is possible for a Staphylococcus Aureus to recur regardless of whether or not fixation devices remained present: T243.6-T243.8."
2. With respect to [477], identifying the question by reference to "emergence or recurrence of an infection" was correct. The reference to "fault" on Dr Miniter's part must be understood as a failure to remove the foreign elements on the medial side of the ankle.
3. With respect to [478], it is true that Dr Guinness agreed with the proposition that "once someone has had osteomyelitis with staph A it's possible for the staph A to come back regardless … [e]ven if there is no fixation devices?" [61] However, Dr Guinness continued: [62] "One can say that it's more likely that you'll get a relapse of staphylococcal infection if a foreign body has been retained. That's well established in the scientific literature universally; that's an accepted piece of dogma."
4. The judge's reasoning then diverted to considering the difficulty in knowing where particular swabs were taken at the respective operations on the ankle. That issue is only relevant to the question of whether there was a recurrence of a dormant staphylococcus aureus infection, or whether the original infection identified in May 2010 had been destroyed by antibiotics and was therefore no longer present at 4 August 2010, or May 2017. Having decided that it was "not possible to rationally determine" whether the original osteomyelitis was eradicated or just suppressed, the judge then stated "it is not possible to reasonably exclude the hypothesis advanced by Professor Braslins that the plaintiff's cellulitis infection in 2016 caused Staphylococcus Aureus to enter the bloodstream and lodge at the site of the previous surgery". [63] The first proposition is not determinative of causation; the second, apart from being expressed in terms redolent of the criminal burden of proof, bypassed the question of why a new infection might lodge at the site of the previous surgery.
5. The judge then accepted that "it is undoubted that the presence of a foreign body can increase the risk of infection by providing a focus for a blood borne infection, whether of long standing or recent origin" [64] but dismissed that consideration because "the risk of that occurring was described as low". That reasoning ignored the fact that the risk had materialised and thus sidestepped the question of whether, on the probabilities, the risk would not have materialised absent the presence of foreign material.
6. In order to explain the last proposition, it is desirable to set out the whole of the extract relied upon by the trial judge. There were two elements to that passage, the first being a statement by Dr Guinness to the following effect: [65] "Even if, however, the staphylococcus causing the infection in 2017 was not the original one and dormancy wasn't the cause of the infection, I believe the presence of a foreign body in the ankle was the prime determining factor for relapse of infection or reinfection at that site. Professor Braslins believes it may - it was most likely to be a blood borne infection. I could accept that. But the blood borne infection wouldn't have settled in that ankle if there hadn't been, I believe, foreign materials still present. That provided the focus of attack, whether it be latent staphylococci or more recent itinerant staphylococci." That evidence provided unequivocal support for a finding of causation.
7. The second passage relied upon was the immediately following response by Dr Braslins: [66] "Yes, the presence of any foreign material does increase the risk of infection, but I would point to one of the studies that I quoted in my report regarding the risk of infection in the context of retained devices and in this study, the researchers retrospectively reviewed cases of staphylococcus aureus bacterium in their hospital and they found that less than 7% of patients with a fracture fixation device, or I think it might have even been artificial joints included, less than 7% of those became infected. So, although residual devices do increase the risk of infection, on - the risk is low and I think on the balance of probabilities it's less than 50%."
8. I do not understand Dr Braslins to have been assessing relative risk in this passage. The paper to which he appears to have been referring, identified by him in his original report of 29 April 2019 (page 3), involved a study described as follows: [67] "Murdoch et al (2001) studied '53 patients with prosthetic joints and 27 patients with other orthopedic prosthetic devices who developed Staphylococcus aureus bacteremia (SAB). After exclusion of patients with primary postoperative infections, the risk of a prosthesis becoming infected by means of hematogenous seeding after SAB was 34% (15 of 44 patients) for prosthetic joints and 7% (1 of 15 patients) for other orthopedic prostheses.'"
9. In his report, Dr Braslins also referred to the infection rates identified by Trampuz and Zimmerli (2006) stating that about 5% of initially inserted internal fixation devices became infected but that the incidence of infection after internal fixation of closed fractures is generally lower (1%-2%). In a further passage in his report, Dr Braslins stated: [68] "Staphylococcus aureus bacteraemia is a very uncommon clinical event and only 7% of patients who have a blood stream infection go on to develop osteomyelitis. The lifetime risk of anyone developing a Staphylococcus aureus bacteraemia must be much less than 10%. So, the combined risk of both events occurring is <<0.7%. This risk must be balanced against the risk of infection when removing such devices. The risk of post-operative infection is 1-2%. In my opinion, the life-time risk of infection developing when a non-infected fracture fixation device is left in place is approximately equal to the risk of developing infection when removing a non-infected fracture fixation device."
10. Without further exploration (and none took place during the trial) these figures were not capable of supporting a finding that the relative risk of developing osteomyelitis at the site of the operation, in the presence of foreign material, was less than double the likelihood of such an event in the absence of foreign material. Accordingly the passage did not support an adverse conclusion in respect of causation.
11. The trial judge then stated: "[489] On the ultimate question, the true position was aptly summed up by Professor Guinness, where in his joint report with Professor Braslins, in answer to the causation question posed to him, namely what is the most likely cause of the plaintiff's infection which required surgery on 25 July 2017, he replied: 'The answer is only known to God': …. I construe that evidence to mean that the cause is not ascertainable by a reasoned and non-conjectural analysis undertaken on the balance [of] probabilities."
12. The statement relied upon was taken out of context and was not relevant to the issue of causation. The comment must be read in the context of the first aspect of the answer which appeared in the conclave report: [69] "PROF GUINNESS: I agree this is a Staphylococcus aureus infection of a retained fracture fixation device causing delayed infection. The issue is whether the infection occurred as a result of latency of staphylococcal colonisation of the site, which I believe is possible, or whether it's occurred as a result of blood stream seeding, which is also a well-recognised phenomena. PROF BRASLINS: In my opinion the latter is, on the balance of probabilities, the most likely explanation. PROF GUINNESS: I favour primary surgical seeding, but the truth is known only to God."
13. As explained above, and as Dr Guinness himself explained in his oral evidence, the question of whether the foreign material harboured dormant bacteria or attracted a fresh infusion was not the issue: if it did either, causation was established. Dr Guinness was merely stating that he could not definitively know which was the case.
14. The remainder of the judge's reasoning on causation assumed that the source of the bacteria did matter. In this respect the reasoning was flawed.
15. In assessing relative risk, it is no doubt true that Dr Braslins was more constrained in his assessment of the importance of the foreign material than was Dr Guinness: however Dr Guinness' clear and largely uncontradicted proposition that a blood borne infection "wouldn't have settled in that ankle if there hadn't been, I believe, foreign materials still present" was sufficient to establish causation. [70]
16. Had there been a breach of duty by leaving foreign material in the ankle, because of the risk of later infection, the risk which in fact materialised would probably not have materialised absent the foreign material. Thus, causation would have been established.

Damages

1. The second ground of the notice of appeal challenged the judge's contingent finding with respect to damages both in respect of non-economic loss and past economic loss. It was also said that the judge erred in failing to award interest. These issues were addressed briefly in writing and not at all orally. As they do not affect the outcome of the appeal, they may be dealt with succinctly.
2. General damages under the Civil Law (Wrongs) Act were not subject to the constraints which apply under the Civil Liability Act, s 16. The judge was faced with competing claims by the plaintiff for an amount of $100,000 and on the part of the defendant, in the range of $35,000-$50,000. He notionally awarded $65,000. The primary complaint was that the judge did not consider that additional physical disability had been established, beyond that which would have occurred in any event. [71]
3. It may be, as the appellant submitted, that the proper course was to take into account his actual physical disabilities, subject to the need to deal with the various injuries and afflictions he had suffered unrelated to the right ankle injury, and then discount any possible level of future disability unrelated to the negligence by an assessment of vicissitudes. However, it is not apparent that the result should be materially different if the proposed approach were to be taken. I would not interfere with the judge's assessment.
4. With respect to economic loss, the claim was based on the proposition that the business in which Mr Old worked with his brother suffered a loss as a result of the need for it to incur further expense as a result of his disability in the first half of 2017. The judge, correctly, noted that the assumption that the company incurred additional costs did not demonstrate loss to the appellant. The evidence did not disclose a loss of income. [72] No error was demonstrated in that reasoning.
5. The appellant's written submissions also made very general claims for future domestic assistance and future treatment expenses, the former in the sum of $20,000 and the latter in the sum of $5,000. The former claim involved an assessment of one hour per week of domestic assistance, although no explanation was provided as to what assistance was required. The lack of evidence in that respect was critical to the refusal of the trial judge to award such an amount; [73] no further assistance is provided by the written submissions on the appeal and the claim must be rejected. A similar problem arose with respect to the claim for future treatment expenses: the amount is in any event trivial in the circumstances.
6. Absent an award of damages, there is no need to revisit the question of interest: so much was recognised in the written submissions.
7. The outcome of this analysis is that a reasonable assessment of the value of the case should have left it below the threshold under which leave was required. I would have granted leave to appeal, but limited to the issues relating to liability.

Contributory negligence

1. The respondent's notice of contention challenged a finding of the primary judge that there had been no contributory negligence on the part of the appellant in failing to obtain earlier treatment for the infection in his right ankle in 2017. It is not necessary to address that issue.

Conclusions

1. Although as asserted by the appellant, the trial judge erred in dismissing the claim on the basis of a failure to establish causation, as the respondent correctly asserted in his notice of contention, the judge also erred in finding breach of duty of care. Accordingly the appeal must be dismissed. The appellant must pay the respondent's costs in this Court.
2. The Court should order accordingly: 1. Dismiss the appeal from the judgment of the District Court delivered on 31 July 2020; 2. Order that Mr Old pay Dr Miniter's costs in this Court.
3. MACFARLAN JA: I agree with Basten JA.
4. MEAGHER JA: I agree with Basten JA.

Endnotes

1. Old v Miniter [2020] NSWDC 401 ("Old").
2. District Court Act 1973 (NSW), s 127(2)(c).
3. Statement of claim, par 3.
4. Statement of claim, par 4.
5. Statement of claim, pars 6, 8.
6. Old at [384]-[386].
7. Old at [387].
8. Old at [390]-[391].
9. Old at [2].
10. Tcpt, pp 93(20), 96(5)-(14)..
11. Tcpt, 29/10/19, p 97(1).
12. Tcpt, p 97(40).
13. Tcpt, p 99(6)-(11).
14. Tcpt, p 99(25).
15. Tcpt, p 100-101.
16. Tcpt, p 100(40).
17. Tcpt, p 102(45).
18. Tcpt, p 105(1).
19. Tcpt, p 105(35).
20. MCS referred to the identification of medications to which the infectious agents would be sensitive.
21. Tcpt, p 107(15), (45).
22. Tcpt, p 109(15)-(48).
23. Tcpt, p 124(20)-(40).
24. Tcpt, p 125(5).
25. Tcpt, p 127(25).
26. Tcpt, p 126(50).
27. Tcpt, p 128(10).
28. Tcpt, pp 129(15)-130(30).
29. Report, p 10, par 17.1(a).
30. Report, pp 10-11, par 17.1(b).
31. Letter, Makinson D'Apice, 27 March 2019 to Prof Martin Sullivan, p 8.
32. Tcpt, pp 155 (47)-156(44).
33. M Berkes et al, "Maintenance of Hardware after Early Postoperative Infection Following Fracture Internal Fixation", The Journal of Bone and Joint Surgery, Inc, Vol 92, No 4, April 2010, p 823.
34. Tcpt, p 196(25)-198(48).
35. Tcpt, p 198(50).
36. Report, p 3(a).
37. Report, 29 April 2019, p 5, par 5.
38. Conclave report, p 10.
39. Tcpt, p 248(30).
40. Tcpt, p 250(25).
41. Tcpt, p 186(15)-(25).
42. Dr Martin Sullivan, Curriculum Vitae, p 5.
43. Curriculum Vitae, pp 8-13.
44. Tcpt, pp 179(27)-180(8).
45. Tcpt, p 181(4)-(10).
46. Tcpt, p 181(45).
47. (2002) 211 CLR 540; [2002] HCA 54 at [192].
48. Old at [329].
49. Old at [358].
50. Old at [360].
51. Report (undated), p 4(k).
52. Old at [361].
53. Old at [398].
54. Cf Old at [399].
55. Section 5D in the Civil Liability Act 2002 (NSW) refers to "the occurrence" rather than "the happening" but involves no difference in meaning.
56. Tcpt, pp 242(30)-243(10).
57. Tcpt, p 252(5)-(17).
58. Tcpt, p 261(40)-(50).
59. Tcpt, pp 254(11)-255(1).
60. Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [121], [137] (Spigelman CJ).
61. Tcpt, p 243(6).
62. Tcpt, p 243(22).
63. Old at [485].
64. Old at [486].
65. Tcpt, p 252(4)-(12).
66. Tcpt, p 252(16)-(24).
67. The full reference is not provided in the report, nor did the article find its way into evidence; it was merely identified as "Murdoch et al (2001)".
68. Report, pp 6-7.
69. Conclave report, p 6(c).
70. Tcpt, p 252(10).
71. Old at [514].
72. Old at [525].
73. Old at [535]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2021