Phelan v Melbourne Health [2019] VSCA 205

1 On 21 January 2013, the applicant sustained serious fractures to the calcaneal bones in each of his ankles as a result of a fall. He was conveyed by ambulance to the Royal Melbourne Hospital ('the hospital'), which is and was conducted by the respondent. The applicant remained as an inpatient in the hospital between 21 January and 25 January, during which time he was treated conservatively. After he was discharged as an inpatient, he attended the respondent's orthopaedic outpatient clinic on 29 January and 5 February. Subsequently, the applicant consulted a different surgeon, and he underwent successful surgery to his left ankle. However, he has been left with ongoing pain and restriction to movement in his right ankle, such that he has not been able to return to his usual occupation as a plumber.

2 Surgical treatment of a calcaneal fracture ordinarily involves an open reduction and internal fixation of the injury. It was the unanimous opinion of the orthopaedic surgeons who gave evidence in the case that there is a limited timeframe within which such surgery can be successfully performed. In particular, the surgery should be performed within four weeks, but at the most within five to six weeks, of the fracture being sustained.

3 In the proceeding, the applicant claimed that at no time did the respondent inform him of the option of surgical treatment for his calcaneal fractures. He further claimed that if he had been given that advice, he would have elected to undergo an operation to his right ankle within the necessary time period, and that if he had done so, he would have had a better outcome in respect of his right ankle. In response, the medical practitioners, who had been responsible for the treatment of the applicant at the hospital, were unable to have any specific recollection of the applicant as a patient or their treatment of him. However, by relying on the clinical notes, and their usual practice, they gave evidence that appropriate advice, as to the surgical option, would have been given to the applicant. In particular, the respondent maintained that that advice had been given to the applicant by an orthopaedic registrar, Dr Conor Crowley, in the evening of 21 January, and also at a ward round that was conducted the next morning on 22 January, and at a consultant ward round that was undertaken on 24 January. It was common ground, between the parties, that the option of surgery was not discussed with the applicant during either of the outpatient clinic consultations on 29 January and 5 February.

4 In essence, the trial judge held that the applicant had failed to discharge the onus of proving, on the balance of probabilities, that he was not given appropriate advice as to the option of surgical treatment while he was an inpatient at the hospital. The judge also held that if the applicant had established that the respondent breached its duty of care to him in failing to give him such advice, she was not satisfied that surgery would have been performed on his right ankle in any event, and that he would have achieved a better outcome than his current condition. Accordingly, the applicant's claim for damages was dismissed.[1]

5 The applicant seeks leave to appeal the decision of the judge dismissing his claim. The principal ground of the application was that the judge erred in failing to find, on the balance of probabilities, that the respondent had failed to give the applicant adequate advice about the surgical options for treating his injuries. In particular, it has been submitted that the judge erred by preferring evidence of the usual practice of the respondent's medical staff over the specific evidence of the applicant.

6 Before turning to the evidence, it is convenient, first, to set out, in chronological order, some key events that were not in dispute.

7 At the time of the events, the applicant was 34 years of age. He was self-employed as a plumber. Relevantly, he ordinarily smoked approximately one packet of cigarettes per day.

8 As noted, the applicant was injured on 21 January 2013. On that date, having completed his day's work, he attended at a friend's home. There he jumped from a balcony of a second storey building, intending to land in the swimming pool beneath it. Unfortunately, he missed the pool, and landed heavily on his feet after a fall of approximately four metres. He was conveyed by ambulance to the hospital, where he was admitted into the emergency department at 6.40 pm.

9 While the applicant was in the emergency department, a CT examination was undertaken of both hindfeet. It showed comminuted intra-articular fractures of the calcanei of both feet. There were loose fragments within the posterior facet of the subtalar joint on the right foot and evidence of possible injury to the lateral process of the talus. There were also loose fragments within the posterior facet of the subtalar joint on the left foot. An AP x-ray of the right hindfoot showed no significant ankle injury, and an axial view of the heel alignment of the right os calcis showed a comminuted and displaced fracture with significant widening, with similar views on the left.

10 At 10.35 pm on that evening, the applicant was attended by Dr Conor Crowley, an unaccredited orthopaedic registrar who was on rotation at the hospital. In his evidence, to which we will return, Dr Crowley stated that he spent about ten minutes dealing with the applicant's history, ten minutes examining him, and at least twenty minutes discussing his injuries with him.

11 At 7.30 am on 22 January 2013, a daily orthopaedic trauma meeting was conducted in the hospital, at which each new case was discussed, including the management plan for those cases. It was attended by Mr David Love, an orthopaedic surgeon, who gave evidence in the trial. Following that meeting, a ward round consultation was undertaken by a registrar, a resident and an intern. Dr Mithun Nambiar, who was then an intern at the hospital, attended that ward round, and he took brief notes of it. Dr Nambiar made a witness statement that was admitted in evidence.

12 At 8.00 am on 24 January 2013, the orthopaedic unit held its weekly 'x-ray meeting' for half an hour. Such meetings were usually attended by the majority of the hospital's orthopaedic surgery consultants. Mr Love gave evidence concerning that meeting. Following that meeting, a consultant ward round was conducted. Mr Love could not recollect whether he did attend that ward round, but considered it was likely that he did so.

13 As noted, the applicant was discharged home on 25 January. He attended the orthopaedic outpatient clinic on 29 January, where he was seen by Dr Crowley. He subsequently attended the outpatient clinic on 5 February 2013, and on that occasion was seen by Dr Yasith Edirisinghe.

14 Following that visit, the applicant was dissatisfied with the advice that had been given to him. He was referred, by a friend, to Mr Andrei Cornoiu, an orthopaedic surgeon who specialises in foot and ankle surgery. The applicant first saw Mr Cornoiu on 18 February 2013. He subsequently saw Mr Cornoiu again at the Austin Hospital on 21 February where he viewed the CT scans. On 28 February, Mr Cornoiu carried out an operation of an open reduction and internal fixation of the left calcaneal bone and a tibial graft of the applicant's left foot.

15 On 5 September 2013, the applicant was reviewed by Mr Cornoiu. He elected to undergo an open reduction and internal fixation procedure to his right calcaneum. That operation was performed by Mr Cornoiu on 13 February 2014. It comprised an open reduction and internal fixation of the right calcaneum, an osteotomy, a subtalar fusion and a tibial bone graft. He was in the Austin Hospital for two to three days before being discharged with pain medication.

16 Following that surgery, the applicant was on crutches for a period of about three months. Initially, he experienced some improvement for a period of twelve months, but subsequently he began to suffer pain in his right ankle which progressively deteriorated.

17 As a consequence, the applicant again consulted Mr Cornoiu. On 7 March 2016, he underwent a one day procedure, performed by Mr Cornoiu. It comprised an arthroscopy of the right ankle and a calcaneus osteotomy.

18 Following that procedure, the applicant continued to suffer pain. On 12 July 2016, and again on 6 December 2016, he received a Cortisone injection to the right ankle.

19 On 16 February 2017, Mr Cornoiu performed a further arthroscopy to the right ankle, which included a debridement and an osteotomy. Initially, the applicant's ankle felt better after that, but the pain soon returned. Subsequently, Mr Cornoiu recommended that he should undergo an arthrodesis and/or a Cortisone injection. The arthrodesis was scheduled for 25 May. However, it was cancelled, because the applicant needed to cease smoking cigarettes six to eight weeks before Mr Cornoiu was prepared to undertake surgery.

20 The plaintiff was unrepresented at the trial. An affidavit, which he had sworn earlier in the proceeding, was admitted as part of his evidence-in-chief. The judge asked him a series of questions, in order to assist him to elicit the relevant evidence necessary for his claim.

21 The applicant said that he could not recall seeing Dr Crowley late on the evening of 21 January. He said that he was heavily medicated with painkillers at that time. He was subsequently transferred to a ward where he stayed until 25 January. He said that on some of those days, he could recall seeing groups of doctors on their ward rounds. The doctors stood at the foot of his bed and said very little to him. The applicant said that he did not feel sufficiently comfortable to ask the doctors about treatment options or the expected length of his recovery. He said that while he was in the hospital, he was told by medical practitioners to stop smoking. He understood that he was given that advice about his general health and wellbeing, and it was not stressed to him that it was necessary for him to stop smoking in order to enhance the prospects of his recovery and to enable him to undergo surgery.

22 The applicant said that he did not recall being seen by a group of doctors on the morning of 24 January. He said 'I have seen that many doctors over the last five years or six years, I don't have a memory of it, no'. Specifically, he did not recall meeting Associate Professor Andrew Bucknill or Mr David Love. He again stated that he did not recall at least two very senior consultants attending on him on the morning of Thursday 24 January.

23 Mr Cornoiu did not give evidence. Two letters written by him to the applicant, a letter that he wrote to the general practitioner who referred the applicant to him, and a copy of his clinical notes, were tendered in evidence.

24 On 18 February 2013, Mr Cornoiu wrote to the general practitioner noting as follows:

Clinically, Sean has very severe swelling around both ankles with the right significantly worse than the left. There is some residual blistering which has healed and the right hindfoot is significantly broader than the left. ... Unfortunately, I was unable to view his CD CT's today, however, based on the [iPhone] photo that he showed me of one of the plain Xrays, it appears that Sean has at least a Sanders 3-4 calcaneal fracture which is the worse [sic] possible prognosis. I am going to assess his films and review Sean at the Austin Hospital this coming week ... The limiting factors at the moment are that of swelling and the time frame as he is now approaching four weeks which is usually the cut off for surgery. The other major issue for him that he needs to address is to cease smoking.

25 In a letter to the applicant (dated 22 August 2018), Mr Cornoiu responded to two questions that had been put to him. The first question was whether the applicant would have had a better outcome if he had been offered surgery while at the hospital. In answer to that question, Mr Cornoiu stated as follows:

It is impossible to determine whether outcomes of surgery for calcaneal fractures are better than non-operative treatment. A number of studies have been done in regards to this in the past and in general no treatment option has been found to have substantially better results (than the other). However, calcaneal fractures are complex injuries and each should be treated on their merits and after a thorough discussion regarding benefits and risk, including how other factors such as smoking could impact outcome. As far as I can tell you have had a good result on the calcaneus which underwent surgery. However, that does not directly translate to a guaranteed good outcome for the other side should that have also been operated on.

In my opinion, the both operative and non-operative options should be discussed, risks explained and decision about management made in concert with the patient.

26 In response to a question as to the benefits of surgical treatment as opposed to conservative treatment, Mr Cornoiu responded that there are 'no absolutes'. The effect of surgery for a calcaneal fracture is to reduce the fracture, improve the shape of the fractured calcaneus, reduce intra-articular deformity and improve heel height as well as reduce heel width. Surgery may therefore delay the onset of post-traumatic osteoarthritis in the subtalar joint, improve the ability to wear shoes, and reduce strain on the ankle. He concluded:

However, surgery does also have risks including wound problems, infection, sural neuritis as well as ongoing risk of osteoarthritis.

27 The applicant also tendered in evidence two expert reports provided by Dr Terence Saxby, an orthopaedic surgeon, who specialises in disorders of the foot and ankle. In those reports, Dr Saxby responded to specific questions put to him by the applicant.

28 In particular, Dr Saxby stated that the applicant had needed to have an assessment by a competent orthopaedic surgeon, who had an interest in trauma of the lower extremity, but that did not necessarily have to be a specialist foot and ankle surgeon. He said that treatment of calcaneal fractures is controversial. There was support for non-operative treatment, but there was also equal support for surgical intervention for such injuries. He said that surgical intervention in respect of calcaneal fractures has mixed results. Some research had indicated that non-operative treatment produces equally good results as surgical treatment. However, that research also indicated that certain groups of patients may do better with surgical treatment. A number of factors are relevant to that issue, including the age of the patient, the type of fracture, the condition of the skin, and other comorbidities (including cigarette smoking) which would increase the risk of infection. He said that the advantage of operative treatment is that the fracture can be reduced and a more anatomical outcome achieved. On the other hand, the risks of surgery comprised wound problems and infection. An infection in the region can be devastating and can overtake any benefit gained from surgical intervention. He said 'this is a difficult area and there is no simple solution where one treatment fits all patients'.

29 Dr Saxby further stated that the fact that the applicant was a smoker was an important factor. Cigarette smoking involves a very strong negative outcome for surgery as it increases wound problems. Many surgeons would not consider operating, in the form of an open reduction and internal fixation of calcaneal fractures, with a patient who smokes. He said that the other limiting factor was that the applicant had very severe swelling around both ankles, with the right ankle significantly worse than the left. Swelling is an important consideration, because it increases the risk of wound infection. Further, the applicant had a Sanders grade 3 fracture of his left calcaneus and a grade 4 facture of the right calcaneus. Taking those factors into account Dr Saxby stated:

it would to me seem reasonable to consider non-operative or conservative management of these fractures. This gentleman is a smoker and he had severe injuries which would mean it would be difficult to fix. He still had a lot of swelling and residual blistering, and therefore all of these factors would make me think that the treating orthopaedic surgeon would certainly give consideration to non-operative treatment, and indeed it may actually have been the preferred treatment given the state of the soft tissues.

30 Dr Saxby stated that surgery should 'possibly' have been reconsidered on 29 January. However, the applicant was still a cigarette smoker, and (he assumed) still had a degree of swelling, since, on 18 February, Mr Cornoiu had noted there was still very severe swelling in both ankles. Finally, Dr Saxby stated that if the applicant had undergone surgical correction of the fractures while he was an inpatient at the hospital, he possibly could have had a better outcome, but 'it is difficult to be certain of this'.

31 On behalf of the respondent, Dr Crowley, Mr Love, Dr Nambiar and Dr Edirisinghe gave evidence. In addition, evidence was given by Mr William Edwards, an orthopaedic surgeon who specialised in foot and ankle surgery.

32 In his witness statement, Dr Crowley stated that he did not have any independent recollection of the applicant. He was, however, able to recall the applicant's presenting complaint because of the unusual manner in which he was injured.

33 Dr Crowley took a handwritten note of his attendance on the applicant on the evening of 21 January at 10.35 pm. Among other matters, the note recorded that Dr Crowley advised the applicant 'to quit smoking'. Dr Crowley also recorded as an item '[Operative versus non-operative] management to be decided by foot surgeon'.

34 As noted, Dr Crowley stated that he spent at least forty minutes with the applicant examining the applicant and discussing his injuries and the available treatment options. He said that, based on his usual practice, he would have advised the applicant that it was not his decision whether he would be offered surgery to treat his injuries. He would have explained to the applicant that there was a good reason why surgery might not be offered to him. In particular, he would have explained to the applicant that the poor condition of his soft tissues, the swelling, and his smoking habit, placed him at a very high risk of infection, which could result in severe complications if surgery was attempted and metal inserted into that area of the body. He said that he would have also explained that operative treatment may not lead to a better outcome of the applicant's long term pain and function. In order to prepare the applicant for the possibility of a bad outcome, he would have explained to the applicant that the calcaneus is one of the worst bones in the body to fracture. He also would have explained that there were surgical fusion procedures available at a later point in time, in the event that he subsequently developed arthritis and pain.

35 Dr Crowley stated that at the orthopaedic trauma meeting that was held on the next morning on 22 January, he would have presented to the orthopaedic team all the cases he had seen on the previous day, including the applicant's case. He said that the meeting would have been attended by Mr David Love, who was the on -call consultant, as well by as the head of the orthopaedic team, Associate Professor Andrew Bucknill. However, he had no specific recollection of the meeting. In his evidence, Dr Crowley stated that he believed that the decision in respect of whether surgery should be undertaken would have been made at the orthopaedic trauma meeting.

36 Dr Crowley also attended the applicant when the applicant visited the orthopaedic outpatient clinic on 29 January 2013. On that day, Dr Crowley noted that the applicant was still a smoker. On examination, he found that the superficial wound on his right ankle had healed and that the blood blisters on his left ankle were dry healed and clean. He made a note that the patient should be reviewed in one week with x-rays, and that he should be non-weight bearing for a period of twelve weeks. In his evidence, Dr Crowley stated that the main purpose for the outpatient appointment was to enable him to review the condition of the applicant's soft tissues. He accepted that it would not have been his usual practice to raise the option of surgical treatment at that attendance, as there was no reason to change the management plan.

37 Dr Nambiar gave evidence by way of a witness statement. He had no independent recollection of the applicant or his presenting account. However, he recognised his handwriting in the medical records on 22 January 2013.

38 Dr Nambiar said it was his role to document the outcome of the ward round consultation that occurred that day. The consultation team comprised a registrar, a resident and an intern. His note recorded: 'Reviewed x-rays. Non-operative'. In his evidence, he said that while it was the usual practice to record discussions with the patient, at that time he was relatively new to the role, and on that occasion he had failed to do so. He said that the usual practice was that a discussion with the patient occurred on the ward round after the orthopaedic trauma meeting. That meeting took place at 7.30 each morning, and it was usual practice to discuss the referrals from the previous day. He said that what was discussed at the meeting was then discussed with the patient and the results of that discussion were ordinarily noted in the medical record.

39 Dr Nambiar also recognised his handwriting on the medical record of 24 January 2013, which was a consultant ward round. In the note, he recorded: 'Progress noted. [Plan] CCMx'. He said that 'CCMx' is shorthand for 'continue current management'.

40 Mr David Love is, and at the material time was, an orthopaedic surgeon practising as a consultant at the hospital. He did not have any independent recollection of the applicant, and he gave evidence of his own and the hospital's usual practice, having reviewed the medical record relevant to the applicant. Mr Love gave evidence by way of witness statement, which was supplemented by further evidence-in-chief at the trial.

41 Mr Love stated that he would have been the responsible surgery consultant who attended the orthopaedic trauma meeting on the morning of 22 January 2013. The meeting was held in a room and includes the orthopaedic unit staff. At the meeting each new case was presented, and there was discussion about the management of the patients' presentations. Having reviewed the medical record from the ward round that was subsequently conducted on 22 January, and based on his knowledge of the usual practice of the orthopaedic unit, Mr Love stated that the unit would have reviewed the applicant's x-rays in the meeting. Considering that the applicant was a smoker, and had swelling in both feet and a laceration on the right foot, he was recommended, at that point, for non-operative management, with a plan to reassess his presentation. Mr Love stated that it was usual practice for a patient's presentation to be reassessed during their inpatient admission and while receiving treatment in the orthopaedic outpatient clinic.

42 Mr Love's next involvement in the applicant's case was 24 January 2013, at the weekly 'x-ray meeting' held by the orthopaedic unit each Thursday. That meeting ordinarily was attended by the majority of orthopaedic surgery consultants. Mr Love stated that, at the meeting, new patients who were under the care of the orthopaedic unit were discussed, and the appropriate management plan considered. Based on usual practice, Mr Love believed that the applicant's presentation would have been discussed at the meeting. Following the meeting, a consultant ward round was held, and the medical records noted that the applicant was seen on that round. Mr Love could not recall attending the round, but he considered that it was likely that he did so. The medical record at the consultant ward round noted that the plan was to 'continue current management'. Mr Love stated that based on that entry, he expected it was communicated to the applicant that surgery was still not appropriate and that non-operative management was the recommended course.

43 Mr Love stated that it was usual practice to review a patient and their management at the orthopaedic outpatient appointments. It was Mr Love's practice, and general practice at the hospital's orthopaedic unit, that patients were reassessed as to the best course of management at that stage. That was because a patient's injury and presentation may change and therefore need to be reassessed at each stage. Mr Love stated that the purpose of the two reviews, undertaken on 29 January and 5 February 2013, would have been to assess the applicant's pain, reassess his level of smoking and consider whether his treatment should be operative or non-operative. Mr Love stated that, based on his review of the notes of the medical record on 5 February 2013, it appeared that the applicant had reported that he had reduced his smoking to half a pack a day and that he was advised to cease smoking. Mr Love said that the applicant's smoking would have been discussed for the benefit of his general health and, more importantly, in the context of consideration of future surgery.

44 In conclusion, Mr Love considered that non-operative treatment was appropriate and justifiable based on the applicant's presentation during his inpatient admission and at the outpatient clinic. In particular, it was appropriate because the applicant was still smoking half a packet of cigarettes a day.

45 In cross-examination, Mr Love was asked a number of questions by the trial judge in order to assist the applicant to present his case. Mr Love agreed that good medical practice required that, during the days that followed the applicant's initial admission as an inpatient of the hospital, discussions with him should have involved a consideration of the treatment options that were available to him. He agreed that such a discussion should have taken place at least once before the applicant's discharge from hospital. He said that good medical practice required that there be continuing discussions of the options, of operative and non-operative treatment, during the applicant's time in hospital and when he attended the outpatient clinic. He agreed that it appeared that the option of surgery was not discussed with the applicant during either of the outpatient clinic appointments.

46 In re-examination, Mr Love stated that he would have expected that, after the daily orthopaedic trauma meeting, and after the weekly x-ray meeting, the plan that was discussed at those meetings would have been discussed with the patient at the ensuing ward round. He said that the usual practice was that issues relating to a patient's treatment are discussed at the ward round, and the patients are given an opportunity to ask questions about it.

47 When the applicant attended the outpatient clinic on 5 February 2013, he was seen by Dr Yasith Edirisinghe, who was then employed as a registrar at the hospital. Dr Edirisinghe made a witness statement. He said that he had no independent recollection of the applicant, but he made notes of his consultation with the applicant. In those notes he recorded that the laceration to the right ankle had completely healed, that the blisters on the left ankle had completely healed, and that the applicant had Sanders 4 comminuted fractures on both sides. He also noted that the applicant had reduced his smoking to half a packet a day, and that he advised the applicant to cease smoking. In his statement, Dr Edirisinghe stated that he believed that the purpose of the consultation would have been to assess the applicant's wounds, how his bones were uniting, and his pain level.

48 Finally, Mr William Edwards, an orthopaedic surgeon who specialises in foot and ankle surgery, gave expert evidence on behalf of the respondent. Mr Edwards had access to copies of the medical records and the radiological reports of the hospital, the records of Mr Cornoiu, and the notes of the Austin Hospital.

49 In answer to the question whether there was a surgical procedure available to treat the applicant's calcaneal fractures on 21 January 2013, 29 January 2013 and 5 February 2013, Mr Edwards responded as follows:

[S]urgery was strongly contra-indicated. Of course, for each of these dates there was potential surgery. In fact a number of different surgeries were available. These range from extensive open techniques to techniques with limited intervention. None would have been sensible. None would have been safe.

[T]he question is whether surgery was prudent. This man had suffered extensive trauma. He had severe soft tissue injury. He had a laceration on the right and extensive blistering on the left. He was a smoker. The risk of significant complication at this stage was immensely high. This could cause deep infection and open wounds, possibly the need for microvascular surgery. Furthermore given the calcanei were comminuted the ultimate outcome would be less than ideal. I believe I would have strongly advised against surgery at each and every one of these dates.

50 In a supplementary report, Mr Edwards addressed the question whether it was more likely that the applicant's injury and disability to the right ankle and foot were caused by the mechanism and nature of the injuries when he jumped off the balcony on 21 January 2013, or whether they were a consequence of the hospital's conservative management of the injuries. Mr Edwards responded as follows:

[T]he problem with the right hindfoot according to the Austin Hospital notes was a non-union of the right calcaneal fracture with a planned operation of open reduction and internal fixation of the calcaneum, osteotomy, subtalar fusion and bone graft. The non-union is a result of Sean Phelan's fracture. Non-unions of the calcaneum are not that common. The incidence of non-union is increased with smoking. Unless the fracture is extremely widely displaced conservative management even of itself does not cause a non-union.

51 Mr Edwards stated that it was possible that anatomic reduction of the joint before union might have mitigated some of the applicant's problems or the symptoms of them. However, it would not have necessarily eliminated those problems. He said that following open reduction and internal fixation of os calcis fractures, problems with the subtalar joints are common and not uncommonly give rise to the need for further surgery. It is probable that the absence of surgery increased the chance that the applicant needed arthrodesis surgery. However, an operation, with the integument that was recorded in the hospital notes, would not have been safe.

In short, I think Mr Phelan's problems reflect more his injury than conservative management. I am convinced that the hospital should not have engaged in surgery on this hindfoot during the period he was in the hospital.

In cross-examination, Mr Edwards stated that for any Sanders 3 or Sanders 4 calcaneal fracture, the option was for conservative care. He said that of the surgical options, the most appropriate would have been an extended lateral approach. Mr Edwards was asked about the outpatient clinic consultation on 29 January 2013. He was asked what steps should have been taken to minimise the swelling so as to enhance the opportunity for surgical intervention. Mr Edwards stated that the non-operative treatment would have comprised rest, elevation of the foot and a protection from further injury. In particular, the joint should not be weight-bearing, and he should wear a moon boot.

53 The trial judge's reasons for decision were thorough and methodical. Her Honour set out the evidence given by each witness in detail. In doing so, she noted that Dr Crowley was a credible witness whose evidence was convincing. He had previous experience on a number of occasions with patients who had conditions similar to those of the applicant. His explanation as to the lack of detail in his clinical notes was understandable considering the patient load within the emergency department of the hospital.[2] The judge also considered that Mr Love was a credible witness.[3]

54 Having considered the evidence and the relevant legal principles, the judge noted that the respondent accepted that it owed the applicant a duty to inform him of the seriousness of his injury and the treatment options open to him, including surgery. Thus, the critical issue was whether the applicant had been advised of that matter in accordance with the respondent's duty of care. The judge further noted that the applicant had additionally alleged that the respondent had a duty to refer him to an orthopaedic surgeon who specialised in ankle or foot surgery. However, her Honour did not consider that, in the circumstances of the case, the scope of the respondent's duty extended to informing the applicant that he could seek a second or more specialised opinion.[4]

55 The judge then turned to the principal issue in the case. She accepted that the inability of the respondent's medical practitioners to have specific recollection of the applicant and his complaints was understandable given the effluxion of time and the number of people who the doctors would attend each year. Her Honour considered the applicant to be a credible witness, but noted that she also considered the respondent's doctors to be credible witnesses.[5]

56 The judge was satisfied that on 21 January 2013 it was probable that Dr Crowley advised the applicant of the seriousness of his injuries, and the possible treatment options available to him, including surgery. That finding was consistent with Dr Crowley's detailed handwritten notes. Her Honour also noted that the records refer to the applicant as being alert and orientated at the time Dr Crowley consulted him, at 10.35 pm. Her Honour was not satisfied that his cognitive state at that time was impaired to the extent that he was unable to understand the advice given to him. The judge was satisfied that the respondent had no reason to expect or believe that the applicant's cognitive state was so impaired. She accepted that the applicant's evidence, that he could not recall the advice that was given to him on that night, was credible and understandable.[6]

57 Her Honour noted that the applicant gave evidence that, in the following days while he was an inpatient at the hospital, he was not informed of his treatment options. On the other hand, her Honour also referred to the evidence of the respondent's witnesses that he would have been informed of those options during the ward rounds that took place on 22 January and 24 January 2013. On that issue her Honour concluded as follows:

In determining this case, I am left with the contemporaneous medical records, the evidence of the defendant's four doctors, and the evidence of Mr Phelan. While the defendant's witnesses may outnumber Mr Phelan, their evidence was based upon their usual practice, while Mr Phelan's was based upon his recollection as to what he believes occurred at that time. I am not satisfied the weight of the defendant's evidence is greater than that of Mr Phelan's. Nor am I satisfied Mr Phelan's evidence is more probable. Instead, I consider the weight of the evidence in relation to whether or not Mr Phelan was subsequently advised as to the option of surgical treatment to be evenly balanced. In such circumstances, Mr Phelan has therefore failed to discharge his legal burden and must fail in his allegation that the defendant breached its duty of care to him.[7]

58 The judge noted that the respondent conceded that it had not discussed the option of surgery with the applicant at the two outpatient attendances on 29 January and 5 February 2013, because at that time the non-surgical treatment plan was being pursued. Her Honour noted that both Mr Love and Mr Edwards acknowledged that it would have been good medical practice to discuss treatment options with the patient at that time. The judge considered that in hindsight it would have been preferable for the medical practitioners to have discussed the surgical treatment option with the applicant at the outpatient appointments, but her Honour did not consider that their failure to do so constituted a breach of the respondent's duty of care to the applicant.[8]

59 The judge then noted that had she been satisfied (which she was not) that the applicant was not adequately informed of the surgical treatment option, the applicant would also have been required to establish three further matters, namely: that he would have elected to undergo the surgery; that the surgery would have been performed on his right ankle within the limited timeframe available; and that the surgery during that timeframe would have resulted in him achieving a better outcome for his right ankle.[9]

60 In addressing those issues, the judge considered that the applicant had presented to Mr Cornoiu during the timeframe in which surgical management of his injury was not precluded.[10] Her Honour considered, however, that Mr Cornoiu did not perform surgery on the applicant's right ankle, because surgery was contra-indicated by reason of the condition of the applicant's right ankle, and not by reason of the time at which the applicant had attended upon him.[11] Thus, her Honour found that even if the applicant had satisfied her that the respondent had breached its duty of care, she was not satisfied that surgery would have been performed on the applicant's right ankle, if he had presented to Mr Cornoiu at an earlier time.[12] Finally, her Honour considered that even if such surgery had been undertaken, she was not satisfied, on the balance of probabilities, that it would have achieved a better result, particularly in light of the fact that the applicant was a smoker, who had significant swelling to the right ankle and foot.[13]

61 The applicant relies on four proposed grounds of appeal, namely:

1. Her Honour erred in failing to find that the respondent/defendant (respondent) negligently failed to give the applicant/plaintiff (applicant) adequate advice about the surgical options for treating his injuries, and in particular his right ankle,[14] in the period from 21 January 2013 to 5 February 2013, and in preferring evidence of the 'usual practice' of the respondent's medical staff to give such advice over the applicant's evidence that he was not given such advice.
2. Her Honour erred in not finding that the respondent's duty of care to the applicant included having him referred to, attended or advised by a specialist foot surgeon concerning the surgical options for treating his injuries.[15]
3. Her Honour erred in not finding that, had the applicant been given adequate advice concerning the surgical options for treating his ankle injuries, appropriate surgery would have been performed upon the applicant's right ankle during his stay on the respondent's hospital or shortly after his discharge from hospital,[16] and this would have given the applicant a better outcome than the non-surgical treatment he received.[17]
4. Her Honour erred in finding that there were differences between the pathology in the applicant's right ankle as compared with the left ankle that were the real reason for operating on the left ankle but not the right ankle,[18] rather than the elapse of time since the initial injury.

Ground 1 - inadequate advice for surgical options

62 Under ground 1, the applicant has submitted that the judge erred in failing to find that the respondent negligently failed to give the applicant adequate advice about the surgical options available for treating his injuries between 21 January 2013 and 5 February 2013.

63 In support of that proposition, the applicant contended, first, that it was not open to the judge, on the evidence, to conclude that it was probable that Dr Crowley advised the applicant of the seriousness of his injuries and the possible treatment options available to him, including surgery, when Dr Crowley attended the applicant in the evening of 21 January 2013. Counsel for the applicant noted that Dr Crowley was unable to recall the content of the conversation that he had had with the applicant, and that his evidence was based on his usual practice. Further, it was noted, Dr Crowley's clinical note of 21 January 2013 did not assist in determining whether Dr Crowley had discussed the option of surgery with the applicant. On the other hand, the applicant's evidence, that at no time was surgical treatment of his calcaneal fractures discussed with him, was emphatic and specific.

64 Counsel for the applicant further contended that the judge erred in 'preferring' evidence led by the respondent, concerning the usual practice of its medical staff, over the specific recollections of the applicant that he was not given advice about the surgical options available to him on 22 January and 24 January 2013. In particular, it was submitted that the judge erred in finding that the evidence as to that matter was 'evenly balanced'.

65 In support of that proposition, counsel noted that the notes of the respondent of 22 January and 24 January 2013 are brief and uninformative. The evidence of Mr Love, as to the usual practice in respect of the ward round that was conducted on 22 January, was of little evidentiary value, because he had not attended the ward round. Further, it was submitted, the evidence of Mr Love in relation to the consultant's ward round that was conducted on 24 January 2013 was of limited value, because he was unsure whether he had attended that ward round, and could only state that it was 'likely' that he had done so. In those circumstances, it was submitted, the judge erred in failing to find that the applicant had not been advised as to the option of surgery available to him on 22 January and 24 January 2013.

66 Counsel for the applicant further submitted that the judge erred in failing to conclude that the omission of the respondent, to advise the applicant of surgical treatment options at the orthopaedic outpatient clinic on 29 January and 5 February 2013, was negligent. It was accepted by the respondent that the option of surgery was not discussed with the applicant on either of those consultations. Both Mr Love and Mr Edwards gave evidence that it would have been good medical practice for the treatment options to have been discussed with the patient at that time. Counsel submitted that the provision of appropriate advice and information to a patient is a central aspect of the duty of care owed by doctors to their patients. Thus, the failure of the medical practitioners, on those two dates, to discuss with the applicant the option of medical surgery should have been found, by the judge, to have been a breach of the respondent's duty of care to the applicant. Further, it was submitted, the fact, that the applicant did undergo corrective surgery promptly to his left ankle once he had received advice about that by Mr Courniou in February 2013, gives rise to a 'strong inference' that, if he had been advised of his surgical options earlier while in the care of the respondent, he would have understood that advice and followed it.

67 In response, counsel for the respondent contended that the judge did not err in preferring the evidence of Dr Crowley to that of the applicant, in concluding, on the balance of probabilities, that Dr Crowley did advise the applicant of the possible treatment options available to him including surgery. Counsel referred to the evidence of Dr Crowley as to his usual practice in dealing with patients presenting with calcaneal fractures, that practice having been developed by his personal involvement in ten presentations in the previous year. Counsel pointed out that the evidence of Dr Crowley concerning his usual practice was more substantive than that to which counsel for the applicant has referred. In particular, Dr Crowley gave evidence that he would have advised the applicant that patients with soft tissue swelling and a habit of smoking are at a high risk for the development of infection if surgery is undertaken, which can result in severe complications. In particular, the infection can adhere to the metalware and be difficult to remove. Dr Crowley also gave evidence that his practice was to advise such patients that surgery may not lead to a better outcome, and that smoking can delay bone healing, and in a small percent of patients, it can stop bone healing altogether.

68 Counsel for the respondent pointed out that, on the other hand, the applicant's evidence, concerning Dr Crowley's consultation with him, was that he could only remember 'bits and pieces' from the night of 21 January 2013, and he only had a vague recollection of a brief conversation with a doctor. In those circumstances, it was submitted that it was open to the judge to be satisfied that Dr Crowley did advise the applicant of the seriousness of his injuries, and of the possible treatment options that were available to him including surgery and its associated risks. It was further submitted that it was reasonably open to the judge to conclude, based on the evidence contained in the nursing records, and the evidence of Dr Crowley, that the applicant's cognitive capacity was not so impaired, on the night of 21 January, that he could not and did not understand what he was told by Dr Crowley.

69 In respect of the judge's findings as to the consultations of the ward rounds on 22 January and 24 January 2013, counsel for the respondent pointed out that the judge did not prefer the evidence led on behalf of the respondent, but, rather, determined that the evidence of the respective parties was evenly balanced. Counsel submitted that, contrary to the contention advanced on behalf of the applicant, it was open to the judge to find that surgical options were discussed with the applicant at those two consultations. In that respect, counsel pointed to the unchallenged evidence of Dr Nambiar, that the usual practice of the hospital was that new cases would have been discussed at the daily orthopaedic trauma meeting on the morning of 22 January 2013 and a treatment plan formulated. Counsel also pointed to the evidence of Mr Love as to the usual practice of the hospital that, in the daily orthopaedic trauma meeting that took place before the ward round, consideration would have been given to the applicant's operative management, taking into account that the applicant was a smoker, had swelling in both feet, and a laceration to the right foot. Mr Love gave evidence that according to the usual practice of the hospital's medical practitioners, those matters would have been discussed with the applicant in the course of the ensuing ward rounds.

70 Counsel for the respondent then turned to the outpatient clinic consultations on 29 January and 5 February 2013. He noted that the respondent accepted that the applicant was not informed, at those consultations, of the option of surgical treatment for his injuries. He contended that, in light of the judge's finding that the applicant had been given appropriate advice in respect of the surgical options open to him while he was an inpatient at the hospital, the judge did not err in holding that the omission of the medical practitioners, at the outpatient clinic consultations, to advise him as to that matter, did not constitute a breach of the respondent's duty of care to the applicant.

71 The two principal issues raised by the applicant under ground 1 concern:

(1) The trial judge's conclusion that the applicant had failed to establish, on the balance of probabilities, that the respondent did not advise him as to the surgical option that was available to him while he was an inpatient at the hospital between 21 January 2013 and 25 January 2013.

(2) The conclusion by the judge that the omission of the respondent's medical practitioners to advise the applicant as to the surgical options, when he attended the outpatient clinic on 29 January and 5 February 2013, did not constitute a breach by the respondent of its duty of care to him.

72 It is convenient, first, to identify the relevant principles of law that apply to the determination of those two issues.

73 It is well established that a medical practitioner has a duty to exercise reasonable care and skill in the provision of professional advice and treatment to a patient. The standard of reasonable care that was required of the practitioners in this case was that of the ordinary skilled person exercising, and professing to have, the special skill of an orthopaedic surgeon.[19] The duty of care includes the provision to the patient of relevant information in terms in which the patient can understand the information, and make an informed choice as to treatment options which may be available in the circumstances.[20] In providing that information, it is the duty of the medical practitioner to sufficiently inform the patient of the risks involved in any operative, or other treatment, that is recommended by the practitioner.[21]

74 In the present case, it was correctly accepted by the respondent at trial that it owed the applicant a duty to inform him of the seriousness of his injury and the treatment options open to him, including surgery.[22]

75 The finding by the judge, that the applicant had failed to establish, on the balance of probabilities, that he was not advised as to the surgical option, was essentially a finding of primary fact by her Honour. By ground 1, the applicant seeks to impugn that finding. The principles, relevant to such a ground, are well established, and were conveniently summarised by this Court in Southern Colour (Vic) Pty Ltd v Parr in the following terms:

On appeal, the Court is required to undertake a 'real review' of the evidence in respect of the findings made by the judge, and the reasons for the judge's conclusions. Where the finding, that is under review, depended on the acceptance or rejection by the trial judge of the evidence of a particular witness or witnesses, the appellate court should only set aside that finding if, after making due allowance for the advantages enjoyed by the trial judge, that finding is 'glaringly improbable' or 'contrary to compelling inferences'. On the other hand, in general, an appellate court is in as good a position as the trial judge to decide the proper inferences to be drawn from facts which are undisputed, or which have been established by the evidence. In deciding the proper inference to be drawn, the appellate court should, however, give respect and weight to the conclusion of the judge, but, having reached its own conclusion, it must give effect to it.[23]

76 In Robinson Helicopter Co Inc v McDermott, the High Court stated:

The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'. In this case, they were not. The judge's findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them.[24]

77 Although initially there was some controversy as to whether the proposition, thus stated by the High Court, applies to inferences, as distinct from findings of primary fact, it is now accepted that it does not apply to inferences drawn by the primary judge. Thus, the appellate court is required to proceed on the basis that, in general, it is in as good a position as the trial judge to decide the proper inferences to be drawn from the facts in the case.[25]

78 Nevertheless, in applying those principles, it is important to bear in mind the reality that there is a necessary interrelationship between the finding by a trial judge of a particular primary fact or facts, and the drawing of a conclusion or inference from those facts. That relationship was described by this Court in Box Hill Institute of TAFE v Johnson in the following terms:

while an inference is a conclusion based on established facts, nevertheless the interplay between the finding of a particular fact or facts, and the drawing of a conclusion, is not entirely discrete. The drawing of an inference, or reaching of a conclusion, is necessarily affected by precisely how and for what reasons a judge may have accepted, or rejected, a particular piece of evidence which is important to the drawing of that inference or conclusion. Secondly, in a civil proceeding, a judge may only draw an inference or reach a conclusion in favour of a party on whom the onus of proof lies, if that inference or conclusion is the more probable inference or conclusion available on the facts of which the judge is satisfied. The question whether an inference is more probable than another may be affected by the judge's view of particular facts relied on in support of any competing inference, or of facts relied on to contradict the inference ultimately formed by the judge.[26]

79 As mentioned, the medical practitioners, who attended the applicant while he was an inpatient at the hospital, and during his two visits to the outpatient clinic, were unable to recall the applicant, or to have a specific recollection of the advice that they gave to him. The lack of recollection of those witnesses is understandable, as the trial in the proceeding took place more than five and a half years after the events with which the case is concerned. As a consequence, the medical practitioners were permitted to, and did, give evidence as to their usual practice, and the usual practice of medical practitioners at the hospital, in relation to the treatment given by them to the applicant, and in relation to the advice and information which was given to him concerning his injuries and the treatment options available to him. As part of ground 1, the applicant alleges that the judge erred in preferring the evidence of the 'usual practice' of the respondent's medical staff over the specific evidence of the applicant that he was not given any advice as to the surgical option that was available to him.

80 It is well established that, in a case such as this, evidence as to usual practice is both admissible, and, on occasions, can be decisive. The relevance and admissibility of such evidence is of long standing pedigree. In Joy v Phillips Mills & Co Ltd,[27] the deceased workman, who was employed by the respondents as a stable boy, was found with a halter in his hand and severely injured in their stable, suffering from a kick behind the ear from a horse. There was evidence that at the time of the accident the workman had no occasion to be in the stable. In addition, there was also evidence that the workman had the habit of teasing horses by hitting them with a halter. That evidence was admitted in the proceeding. The Court of Appeal held that the evidence was admissible and persuasive. Phillimore LJ stated:

Wherever an inquiry has to be made into the cause of the death of a person, and, there being no direct evidence, recourse must be had to circumstantial evidence, any evidence as to the habits and ordinary doings of the deceased which may contribute to the circumstances by throwing light upon the probable cause of death is admissible ...[28]

81 In Eichsteadt v Lahrs,[29] the plaintiff, a cyclist, and the defendant, a motorist, came into collision in an intersection. The plaintiff had no recollection of the accident. A critical issue, at trial, was whether he was riding or wheeling his bicycle at the time of the collision. Evidence was admitted, on behalf of the plaintiff, to establish that he had a usual practice of wheeling his bicycle in the particular location and not riding it. Justice Townley, who heard the trial, admitted the evidence, and relied on it.[30] On appeal, the High Court, comprising Dixon CJ and Windeyer J, agreed that the evidence was admissible and relevant.[31]

82 In Connor v Blacktown District Hospital,[32] the trial judge rejected, as inadmissible, evidence as to the usual practice of the cleaning staff employed by the defendant hospital. On appeal, the Court of Appeal held that that evidence was relevant and admissible. Asprey JA (with whom Mason JA agreed) stated:

In my opinion, evidence of a relevant practice may be given by a person who, on a sufficient number of occasions and over a sufficient period, has regularly and uniformly performed acts, or has observed the regular and uniform performance of acts by others, under the same circumstances and upon the same occasions, so as to make it appear probable in the minds of reasonable men that, given the same circumstances and occasions, the like acts will again be performed. Such evidence, if accepted by the tribunal of fact, will enable it to draw the inference that such acts were performed by that person or those others, as the case may be, where the same occasion and circumstances for their performance have subsequently recurred at a point of time connected sufficiently closely with the continuity of acts related in the evidence.[33]

83 Those principles have been applied in a number of subsequent cases, including decisions before and after the introduction of the Uniform Evidence Act.[34] In some cases, the evidence that was given as to the usual practice of a particular person or party was considered to have been of considerable weight.[35] It might be observed that evidence of usual practice has a marked similarity to tendency evidence. Like tendency evidence, the evidence of the usual practice of a party or person is relevant as bearing on the probability of a particular fact in issue in a case.[36] It has not been suggested, in the authorities that have dealt with usual practice evidence since the introduction of the Uniform Evidence Act, that that evidence has been assimilated with, or is identical to, tendency evidence.

84 It follows that there is nothing which is intrinsic to the evidence of usual practice that necessitates a conclusion, in a particular case, that that evidence may not be preferred, or at least be given equal weight, to contrary evidence given by a witness who has, or professes to have, a specific recollection of the event in question. Plainly, the weight to be given to the evidence of usual practice, and the question whether that evidence is to be preferred, must depend upon the specific nature and quality of the evidence that is given in the particular case.

85 The first finding by the judge, which the applicant seeks to impugn under ground 1, is her Honour's conclusion that, on the balance of probabilities, on 21 January 2013 Dr Crowley did advise the applicant of the seriousness of his injuries, and of the possible treatment options that were available to him, including surgery.

86 In light of the evidence at the trial, that conclusion was not only open to the trial judge, but, in our view, plainly correct. As we have mentioned, the judge found Dr Crowley to be a credible witness whose evidence was convincing. The applicant has not pointed to any aspect of his evidence which could call that finding by the judge into question.

87 On his evidence, Dr Crowley spent a substantial amount of time with the applicant, ascertaining his history, examining him, and discussing with him his findings and his treatment. Dr Crowley's notes of that attendance, that were tendered in evidence, were detailed.

88 Dr Crowley noted that the applicant was a smoker, and that he advised the applicant to quit smoking. Those notations are significant. The evidence demonstrates that that fact was relevant, from an orthopaedic point of view, because it increases the risk of infection, and has the potential to complicate any surgery which might be undertaken on the patient. Dr Crowley's evidence was that he would have explained to the applicant that his smoking habit placed him at a very high risk of infection which could result in severe complications if surgery was attempted and metal inserted to that area of the body. The applicant, in his evidence, stated that he believed that the only advice that he was given about smoking was directed to his general health. In the context in which Dr Crowley examined and spoke to the applicant on the evening of 21 January, it is quite improbable that the doctor would have been concerned with giving the applicant advice about the general ill-effects of smoking on his health. The doctor was then attending the applicant in relation to serious injuries that he had sustained to his heels. In that context, it is highly probable that he directed the advice that he gave to the applicant, about smoking, to the issue of the treatment which might be available to the applicant in respect of the fractures to his heels, and, in particular, in relation to the potential effect that his smoking habit might have on the success of any surgical treatment.

89 Dr Crowley's notes also reveal that he undertook a neurovascular examination of the applicant's feet. Dr Crowley explained that he undertook that examination because the applicant had suffered a very serious injury, and he was concerned there was a risk that the applicant could develop compartmental syndrome, in which case he would have required emergency surgery. That examination by Dr Crowley, and his record of it, demonstrates the thoroughness with which Dr Crowley examined and attended to the applicant.

90 It is in that context that Dr Crowley's note also recorded the following: '[Operative versus non-operative] management to be decided by foot surgeon'. That notation supports the evidence of Dr Crowley that, in accordance with his usual practice, he would have explained to the applicant that it was not his decision whether he would be offered surgery to treat his injuries.

91 Dr Crowley gave evidence that he had previously seen approximately ten presentations that year of patients who had suffered calcaneal fractures while he was on-call in the emergency department of the hospital. In addition, in the orthopaedic trauma meetings, he would have seen approximately fifty presentations of calcaneal fractures that year. Accordingly, there was a sound factual foundation for Dr Crowley to give evidence as to his usual practice, and the usual practice of the hospital, in giving advice to patients who had suffered such injuries.

92 Based on those matters, there was, in our view, a sound basis for the judge to give weight to, and accept, the evidence by Dr Crowley as to the advice that he would have given to the applicant when he examined him on 21 January 2013.

93 On the other hand, and by contrast, the applicant's evidence, as to Dr Crowley's examination of him on that evening, lacked specificity. In his evidence-in-chief, he said that while he was in the emergency department, he could not recall going into the x-ray section. He said he could 'vaguely remember a brief conversation' with a doctor who told him that he had bilateral fractures of the heels. When asked whether he could recall what he was told in relation to the treatment of those fractures, he answered: 'No'. In cross-examination, he said that he could only remember 'bits and pieces' of what happened that evening, and that his memory of it was not as good as his memory for the rest of his time in the hospital. He said that he could not recall being attended by a doctor who had an Irish accent, by the name of Conor Crowley.

94 In those circumstances, while the judge found both Dr Crowley and the applicant to be credible witnesses, there was a substantial basis for her Honour to prefer the evidence of Dr Crowley, to that of the applicant, in respect of the advice that was given to him about his injuries, and his treatment options, while he was in the emergency department on the night of 21 January 2013.

95 As we have mentioned, the judge was satisfied that the applicant's cognitive state on 21 January 2013 was not impaired to the extent that he was unable to understand the advice given to him by Dr Crowley. Her Honour was also satisfied that the respondent (and in particular Dr Crowley) had no reason to expect or believe that the applicant's cognitive state was so impaired.[37] As her Honour noted, the emergency department records of the hospital have a notation, at 10.35 pm, that the applicant was alert and orientated, and that he denied having any pain in both feet while he was 'at rest'. The finding, by the judge, as to the applicant's then mental state, and as to Dr Crowley's understanding of it, was not the subject of any challenge in this application.

96 The second factual finding, that is the subject of ground 1 of the application for leave to appeal, is the conclusion by the judge that the evidence as to whether, subsequent to 21 January 2013, the applicant was advised as to the option of surgical treatment while he remained an inpatient at the hospital, was 'evenly balanced', so that the applicant had failed to discharge his legal burden of proving that he was not advised as to that possible form of treatment being available to him.[38]

97 In essence, the evidence adduced on behalf of the respondent was to the effect that, according to the usual practice of its medical staff, the applicant would have been advised as to the surgical treatment option during the two ward rounds that were conducted on 22 January and 24 January respectively.

98 In considering the judge's conclusion, concerning the ward round that was conducted on 22 January, it is important to bear in mind that it was immediately preceded by the daily trauma meeting. The evidence of Dr Crowley, Dr Nambiar and Mr Love was that, at such meetings, each new case was presented and discussed. Dr Crowley gave specific evidence that he would have attended the meeting on 22 January, and he would have presented the applicant's case to the orthopaedic team. In light of the judge's acceptance of the evidence of Dr Crowley, as to the advice that he gave to the applicant on 21 January, there was a strong basis for the inference that Dr Crowley would have presented the applicant's case to the trauma meeting that was conducted on 22 January, and that he would have raised the issue of the appropriate treatment of the applicant, and, in particular, whether the surgical option was open to him.

99 That conclusion is supported by the evidence of Mr Love. In his witness statement, Mr Love said that he was the responsible surgery consultant at the orthopaedic trauma meeting of 22 January 2013. He said that notes were not documented in the patient medical records at the meeting, but that the notes recorded during the orthopaedic ward round reflect what occurred at the meeting. Having reviewed the entry (made by Dr Nambiar), Mr Love stated that the usual orthopaedic unit practice would have been for the unit to have reviewed the applicant's x-rays in the meeting. Mr Love said that it appears from the notes that, as the applicant was a smoker, and had swelling in both feet and a laceration on the right foot, it was determined at that point that he was recommended for non-operative treatment, with a plan to re-assess his presentation.

100 The trauma meeting immediately preceded the ward round, which was conducted by a registrar, a resident and an intern. On that occasion, Dr Nambiar was the intern who was present at the ward round, and he took a brief, and quite uninformative, note of it. Dr Nambiar did not have any specific recollection of the ward round. He said that the note, that was in his handwriting, was made by him after a discussion at the patient's bedside. The note recorded (among other matters) 'Reviewed x-rays. Non-operative'. Significantly, Dr Nambiar stated, in his witness statement, the following:

What was discussed at the orthopaedic consultant meeting was then discussed with the patient and the results of that discussion were recorded in the medical record.

101 Dr Nambiar's evidence, as to that matter, was supported by evidence by Mr Love, in cross-examination, that following an orthopaedic review at the meeting, the usual practice was that in every morning ward round, the patient's progress was discussed with the patient, and the treatment plan would be discussed with the patient, 'whether it be operative or non-operative depending on the situation'.

102 Due to the acknowledged inadequacy of Dr Nambiar's notes, and his understandable lack of any specific recollection of the ward round, there was no direct evidence as to precisely what was discussed with the applicant in the ward round. However, there was no reason for the judge to reject, or fail to give weight to, the evidence given by Mr Love as to the usual practice that took place on such ward rounds, namely, that the medical staff who attended such ward rounds would discuss with the patient the matters that had been considered at the orthopaedic unit's trauma meeting that had immediately preceded the ward round. The brief note of Dr Nambiar provides some support for that proposition, bearing in mind that that note specifically referred to the matters that were communicated to the patient in the course of the ward round.

103 Understandably, the applicant was not able to recall either of the specific ward rounds which were the subject of the respondent's evidence. However, that was no reason for the judge to reject the evidence given by the respondent's witnesses that those ward rounds had taken place. The applicant's evidence rose no higher than that the respondent's medical staff at no stage discussed with him the possibility or option of surgical treatment. On the other hand, there was a cogent body of evidence which provided an ample basis for the judge to conclude that, at the least, the evidence as to whether the applicant was informed as to the surgical option at the ward round on 22 January was evenly balanced. That evidence included the evidence of Dr Crowley as to his attendance on the applicant on the evening of 21 January (which was accepted by the judge), the evidence that Dr Crowley attended the trauma meeting on 22 January and presented the applicant's case there, the note by Dr Nambiar of the ward round, and the evidence of Mr Love as to the usual practice on ward rounds. Indeed, in the circumstances that we have outlined, it would, in our view, have been quite improbable that the option of surgery was not mentioned at all to the applicant during the ward round of 22 January, as he maintained. We therefore consider that the judge's conclusion, as to that matter, was correct.

104 The second ward round, that was the subject of evidence, was that conducted on 24 January 2013. As noted, Mr Love's evidence was that before that ward round took place, the orthopaedic unit held its weekly 'x-ray meeting', at which the case of each new patient in the unit was discussed and the appropriate management plan considered. Mr Love stated that although there were no notes of the meeting, based on usual practice, the applicant's presentation would have been discussed at that meeting. Pausing there, there was no reason why the applicant's case would not have been discussed on that meeting, and it might readily be inferred, on the balance of probabilities, that that discussion did take place.

105 Mr Love further stated that following that meeting, a consultant ward round was held. Mr Love considered it was likely he attended that ward round. The medical record documented that the plan was to 'continue current management'. Mr Love in his witness statement said:

Based on this entry, I expect that it was communicated to Mr Phelan that surgery was still not appropriate and non-operative management was the recommended course. The entry indicates to me that the management decision made by the unit at the x-ray meeting was discussed with Mr Phelan at this time.

106 As we have noted, in cross-examination, Mr Love said that the usual practice, with every morning ward round, was for the patient's progress, and treatment plan, to be discussed with the patient. In re-examination, he was asked about his own practice and the practice of the hospital in conducting consultant's ward rounds. In particular, he was asked about the likelihood of surgery being discussed. Mr Love responded:

The usual practice would be that those issues are discussed at the ward round and we do try to give the patients an opportunity to ask questions, discuss plans, alter plans as required, answer questions and so on.

107 Mr Love was an experienced surgeon, who had worked at the hospital since 2009. He had sufficient experience to be well acquainted with the usual practice of the medical practitioners at the orthopaedic unit in conducting ward rounds. There was no reason for the judge not to give weight to Mr Love's evidence that, in accordance with usual practice, it would be expected that the treatment plan, that was recorded in the notes, would have been communicated and explained to the applicant.

108 Again, the applicant did not have any specific recollection of the ward round that was conducted on 24 January. He stated that he did recall ward rounds being conducted, that the surgeons stood at the foot of his bed, and that he was not sufficiently confident to raise any issues with them. However, that evidence did not, in our view, necessitate the conclusion that, at the ward round of 24 January, the applicant was not advised that surgery was still not an appropriate option for him, and that non-operative management was then the recommended course.

109 Based on our review of the evidence, we consider that the judge was correct to conclude that the evidence of the applicant was no more probable or reliable, in the circumstances, than the evidence of Mr Love, based on his knowledge of the usual practice and procedures of the orthopaedic unit, relating to the discussions which did (or did not) take place with the applicant on the ward round of 24 January.

110 It follows from the foregoing that the applicant has not made out ground 1 of the proposed grounds of appeal, insofar as it contends that the judge erred in failing to find that the respondent negligently failed to give the applicant adequate advice about his surgical options during the period in which he was an inpatient at the hospital between 21 January 2013 and 25 January 2013.

111 For the purpose of completeness, it was not asserted, under ground 1, that the advice that the respondent's witnesses said was given to the applicant - that, at that point, surgery was not an appropriate option for him - was either incorrect or negligent. In light of the evidence of Mr Love, Mr Edwards, and Dr Saxby, we do not consider that such a proposition could be maintained. At the point at which the applicant was discharged as an inpatient from hospital, he had significant swelling, he was a smoker, and there was a laceration to his right ankle. The expert orthopaedic medical evidence was to the effect that it would have been hazardous to proceed to surgery at that stage, or in the near future, in those circumstances, and that the prospects of success of such operative treatment would, at best, have been problematic.

112 We turn to the second basis upon which the applicant seeks to impugn the finding of the judge as to the advice that was given to him as to his surgical options. As noted, it was common ground between the parties that the applicant did not receive any advice, as to those options, at the two orthopaedic unit outpatient clinics that he attended on 29 January 2013 and 5 February 2013 respectively.

113 The judge considered that, with hindsight, it would have been preferable for the two medical practitioners who attended the applicant at the outpatient appointments to have discussed the surgical treatment option with the applicant. However, her Honour did not consider that their failure to do so constituted negligence on behalf of the respondent, in view of her finding that the respondent's doctors had followed their usual practice and informed the applicant of the surgical treatment option while he was an inpatient at the hospital.[39]

114 Both Dr Crowley and Dr Edirisinghe, who attended the applicant on 29 January and 5 February 2013 respectively, considered that the purpose of the outpatient consultation would have been to assess the applicant's condition and the applicant's level of pain. However, Mr Love, in his statement, said that based on usual practice at the hospital, the purpose of the outpatient clinic reviews would have been to assess the applicant's pain, to re-assess his level of smoking, and to consider whether his treatment should be operative or non-operative management.

115 By undertaking the orthopaedic outpatient clinic consultations, the respondent continued to bear a duty of care to the applicant. That duty required it to continue to consider and review the issue of the treatment available to the applicant while he was in the care of the hospital. As such, the respondent's duty of care encompassed the provision by its medical practitioners to the applicant of advice as to the appropriate treatment which it recommended. In particular, the hospital had a duty to the applicant to advise him whether there was any need to reconsider or review the advice that had been given to him, while he was an inpatient, concerning the treatment options that were available to him.

116 The records of the two outpatient consultations record that the superficial laceration to the applicant's right ankle had completely healed. Neither Dr Crowley nor Dr Edirisinghe made a note about the state of swelling of the applicant's ankle and heel. However, when Mr Cornoiu examined the applicant on 18 February, he noted that the applicant had 'very severe swelling' around both ankles, with the right ankle 'significantly worse than the left'. He also noted that the right hindfoot was 'significantly broader' than the left hindfoot. There is no evidence that the degree of swelling, or the deformity to the applicant's right hindfoot, had developed in the period between 5 February and 18 February.

117 Based on that evidence, it is clear that there was no cause for Dr Crowley or Dr Edirisinghe to re-assess, at the outpatient consultations, the advice that had been given to the applicant, while he was an inpatient at the hospital, concerning the treatment options that were available to him. In that respect, Mr Love expressed the view, that, non-operative treatment was the appropriate and justifiable course based on the applicant's presentation during both his inpatient admission and his attendance at the outpatient clinic. Dr Saxby considered that the option of surgery should 'possibly' have been re-assessed on 29 January 2013, but he noted that the applicant was still a cigarette smoker, and that he still had a severe degree of swelling, which would have compromised the capacity of surgical wounds to heal.

118 In those circumstances, and based on that evidence, it is apparent that any advice that would have been given to the applicant, concerning the surgical option, would have been no different than the advice that was conveyed to him while he was an inpatient at the hospital. Accordingly, while it would have been preferable for the medical practitioners, at the two outpatient consultations, to have re-visited the surgical option with the applicant, we consider that the judge was correct to conclude that the failure, of the medical practitioners to do so, did not constitute a breach by them, or the respondent, of the relevant duty of care owed to the applicant.

119 It follows from the foregoing conclusions that the applicant has failed to make out any of the propositions on which ground 1 of the proposed grounds of appeal is based. Accordingly, ground 1 must fail.

120 Under ground 2, counsel for the applicant contended that the judge should have found that the respondent's duty of care extended to having the applicant referred to a specialist foot surgeon. It was submitted that if such a referral had taken place, the applicant would have been 'properly advised' about his surgical options at an earlier stage, while he was still within the optimum timeframe within which to have surgery in respect of his injuries.

121 In our view, ground 2 of the application is without substance for two reasons.

122 First, there was a body of evidence, before the judge, that it was not necessary that a specialist foot surgeon should be consulted at that stage, as the hospital had available to it experienced orthopaedic surgeons who had sufficient familiarity with the note of the injuries sustained by the applicant to be able to determine the appropriate form of treatment that he should undergo.

123 In that respect, Mr Edwards, in cross-examination, stated that if surgery were to be undertaken, ordinarily it would be performed by an orthopaedic foot and ankle surgeon, or an orthopaedic trauma surgeon. Dr Saxby gave similar evidence. In his report, he said that while the applicant should have been assessed by a competent orthopaedic surgeon who had an interest in trauma of the lower extremity, it was not necessary that that surgeon be a specialist foot and ankle surgeon. It would be sufficient for the assessing surgeon to be someone 'with a trauma interest'. Mr Love, in cross-examination, stated that there were at least six surgeons on the on-call roster at the hospital who were sufficiently familiar with the treatment of injuries at various aspects of the anatomy, and who would have been sufficiently qualified to give appropriate advice as to the treatment options that were available to the applicant. Indeed, Dr Crowley stated that Mr Love would have had the required expertise to make the requisite decision, because he was a consultant orthopaedic surgeon with a trauma interest.

124 Secondly, Mr Love also gave evidence that at that time the hospital employed a specialist foot surgeon, Mr Andrew Oppy. He said that the Thursday morning meeting, in which the surgeons discussed the weekly intake of patients, would have been attended by Mr Oppy, unless he was absent. The on-call roster for the hospital for the orthopaedics department for the relevant period noted that Mr Oppy was, in fact, rostered on duty on 24 January. Accordingly, it might be properly inferred that he was present at the meeting at which the applicant's case, and his treatment, was discussed.

125 For those reasons, there was abundant evidence before the primary judge that the practitioners, who considered and determined the appropriate form of treatment for the applicant, while he was an inpatient at the hospital, had the requisite degree of expertise. It follows that ground 2 must fail.

126 For the reasons that we have discussed, the applicant has failed to make out either ground 1 or ground 2 of the application for leave to appeal. Accordingly, the applicant has failed to demonstrate that the judge erred in concluding that the applicant had not established any breach by the respondent of its duty of care to him.

127 Grounds 3 and 4 are posited on the success by the applicant under grounds 1 or 2. Notwithstanding our conclusions in respect of those grounds, it is appropriate that we consider, in some detail, grounds 3 and 4, in deference to the detailed and helpful submissions that were presented to the Court in respect of those two grounds.

128 By ground 3 it is contended that the judge erred in not finding that, had the applicant been given adequate advice concerning the surgical options for treating his ankle injuries, appropriate surgery would have been performed upon the applicant's right ankle during his stay on the respondent's hospital or shortly after his discharge from hospital, and this would have given the applicant a better outcome than the non-surgical treatment he received.

129 Ground 3 is based on three premises. First, the judge ought to have concluded that, if the applicant had been informed about the surgical option between 21 January and 5 February 2013, he would have opted to undergo surgery in respect of the injuries to his left ankle and his right ankle within the requisite timeframe. Secondly, if the applicant had agreed to have surgery at that time, such surgery would have taken place. Thirdly, if the applicant had undergone such surgery, it would probably have given him a better outcome in respect of his right ankle than the non-surgical treatment that he received. As counsel for the respondent has pointed out, if the applicant had succeeded on ground 1 or ground 2, it would have been necessary for him to have also succeeded on all three of those propositions. For the reasons that follow, we accept the submissions that were made on behalf of the respondent that the applicant should not succeed on them.

130 In respect of the first and second premises contained in ground 3, it was contended on behalf of the applicant that, if he had been informed of the surgical options between 21 January and 5 February 2013, he would have opted to undergo surgery, and it is likely that surgery would have been performed on his right ankle within the requisite timeframe. It was submitted that if the applicant had been given advice, specifically, that he must cease smoking in order to undergo surgery, he would have followed that advice. Secondly, it was submitted, that, based on Mr Cornoiu's evidence, the swelling to his right ankle had reduced between 18 February and 21 February, so that the swelling would not have stood in the way of surgery on his ankle.

131 In respect of the third premise of ground 3, counsel for the applicant contended that, in light of the successful operation that was conducted on the applicant's left ankle, it might be inferred, as a matter of probability, that that surgery would have been successful. Further, if surgery had been performed on the right ankle within the appropriate time period, the right foot would have been in a more anatomical position, which would have reduced the risk of secondary surgery and the later development of osteoarthritis.

132 The first premise presents a conceptual difficulty. We have upheld the decision by the judge that the applicant had failed to establish that he was not advised appropriately of the surgical option available to him while he was a patient of the hospital. Yet the fact is that the applicant did not opt to undergo surgery at that time.

133 The second and third premises, of ground 3, are that if the applicant had chosen to undergo surgery within four weeks of his injury, a surgeon would have both recommended and undertaken that surgery, and such surgery would have resulted in a better outcome for his right foot. It is at that point that ground 3 also encounters insuperable difficulties. There was a strong body of evidence that supported the conclusions by the judge that, even if the applicant had established the relevant breach by the respondent of its duty to him to adequately inform him of the possibility of surgical treatment, surgery would not have been performed on his right ankle if he had presented to Mr Cornoiu at an earlier time,[40] and that, if that surgery had been undertaken, he would not have achieved a better outcome on his right foot than his current position.[41]

134 As we have noted, when Mr Cornoiu first saw the applicant on 18 February 2013, he noted that the applicant had very severe swelling around both ankles, with the right 'significantly worse than the left'. He also noted the deformity in the right hindfoot. He stated that because the applicant had a Sanders 3-4 calcaneal fracture to each heel, he had the 'worst possible prognosis'. After Mr Cornoiu reviewed the applicant at the Austin Hospital on 21 February, he recorded in his note that the right foot was 'very swollen', that the left foot was 'less swollen', that the left foot had a Sanders classification 3 and the right foot had a Sanders classification 4. He then noted that the 'plan' was to undertake an open reduction and internal fixation of the left foot. He noted 'risks, including amputation'. Then, in the note, he made the significant notation: 'Right: Non-op as no option'.

135 That note, of itself, was telling in the context of the trial. While Mr Cornoiu considered that the condition of the left foot, on 21 February, was such that it was appropriate to operate on it, he considered that there was no such option available in relation to the right foot. In that context, it is also relevant that while Mr Cornoiu undertook the operation on the left foot on 28 February, he did not proceed to do so, either in the same operation, or shortly afterwards, on the right foot. Mr Edwards gave evidence that it is possible, although not preferable, to operate on both feet at the same time. However, he said that, in an appropriate case, the second operation could be undertaken two days or so after the first operation. The fact that Mr Cornoiu did not, in that timeframe, elect to undertake such an operation on the applicant's right foot adds support to the evidence, contained in his note on 21 February, namely, that an operation on the right foot was not an option.

136 The evidence of Mr Edwards also strongly supports the proposition that, within the relevant timeframe, it was not a feasible option to undertake surgery on the applicant's right foot. In the passage of his report, which we have earlier quoted[42] Mr Edwards was of the view that such an operation would not have been sensible or safe. He said that he would have strongly advised against surgery, if he had examined the applicant between 21 January 2013 and 5 February 2013, that is, in the period in which he was in the care of the respondent.

137 Further, the evidence does not support a finding that if surgery had been undertaken on the right foot during the requisite time period, the applicant would have achieved a better result. Rather, the evidence is to the contrary.

138 Mr Cornoiu, in his report to the applicant, stated that the fact, that the surgery on the left foot was successful, 'does not directly translate into a guaranteed good outcome for the other side'. He noted that the objects of surgery for calcaneal fractures are to reduce the fracture, improve the shape of the fractured calcaneus, reduce intra-articular deformity and improve heel height. He said that that 'may' delay the onset of post-traumatic osteo-arthritis in the subtalar joint, result in less irritation of the peroneal tendons, improve the ability to wear shoes, and reduce strain on the ankle. In that way, his evidence rose no higher than pointing to the possibility of improvements in those respects. At the same time, Mr Cornoiu noted that surgery has risks including wound problems, infection, sural neuritis and ongoing risk of osteoarthritis.

139 As we have noted, Dr Saxby was similarly guarded in expressing any view as to whether the applicant would have achieved a better result from surgery. He concluded that the non-operative treatment 'may actually have been the preferred treatment' given the state of the applicant's soft tissues. He considered that if the applicant had undergone surgical correction of his fractures while an inpatient in the hospital, he could 'possibly' have achieved a better outcome, but it was 'difficult to be certain of this'. He pointed to the risk of wound infection in circumstances in which the region, to be operated on, was very swollen, as was the case with the right ankle.

140 For those reasons, the judge was correct to conclude that even if the applicant had established that the respondent had failed to inform him of the possibility of surgical treatment, she was not satisfied that surgery would have been performed on his right ankle if he had presented to Mr Cornoiu at an earlier time. Further, the applicant has failed to demonstrate that the judge erred in concluding that, if the applicant had undergone such surgery, he would have achieved a better outcome in his right foot than is presently the case. As the judge correctly concluded, at best, the applicant had lost no more than a mere chance or possibility to have achieved a better outcome, which is insufficient to establish, on the balance of probabilities, a claim for damages in breach of negligence.[43]

141 By ground 4, the applicant contended that the judge erred in finding that there were differences between the pathology of the applicant's right ankle, as compared with his left ankle, that were the reason for Mr Cornoiu operating on the left ankle, but not the right ankle, rather than the lapse of time that had taken place since his initial injury.

142 That ground is directed to the following passage from the reasons of the trial judge:

Mr Phelan's understandable frustration is that Mr Cornoiu performed surgery on his left ankle, from which he has achieved an excellent result. However, that does not necessarily mean that the same result would have been achieved on his right ankle. Further, there are differences between the pathology in the right ankle as compared to the left, which I consider the most probable explanation behind Mr Cornoiu's decision not to perform surgery on the right ankle.[44]

143 In support of ground 4, counsel for the applicant pointed to the evidence of Mr Edwards that there was no significant difference between the applicant's right ankle and his left ankle, as the respective Sanders classifications of the fractures, in respect of those two injuries, were 'really the same'. Accordingly, it was submitted, the judge had no basis to find that there were relevant differences between the pathology of the two ankles, which accounted for the fact that while Mr Cornoiu operated on the left ankle, he declined to do so in respect of the right ankle.

144 As pointed out by counsel for the respondent, the submission, so advanced on behalf of the applicant, is based on a false premise. First, in expressing the view that the Sanders 3 classification, of the comminuted fracture of the left heel, was no different to the Sanders 4 classification of the right heel, Mr Edwards was not describing the differences in pathology between the two injuries, but, rather, he expressed the view that, with a comminuted fracture of the heel of such severity, the appropriate treatment option was the same, namely, conservative care, and not surgical intervention. Secondly, and importantly, Mr Edwards' evidence was directed to the extent to which each heel was respectively fractured. The critical difference in the pathology, in the left side and the right side, was the difference in the degree of swelling of each side. The note of Mr Cornoiu, of 21 February, makes it clear that he considered that the swelling to the right ankle was of such severity that operative intervention was not an option.

146 For the foregoing reasons, the applicant has failed to succeed on any of the proposed grounds of appeal. It follows that the application for leave to appeal must be dismissed.

147 Before passing from this matter, we note that counsel who appeared on behalf of the applicant, Mr M Gronow QC and Ms V Holt, appeared in the matter pro bono. It is apparent, from the nature of the proceedings that were the subject of the application for leave to appeal, that the preparation of the written case, the preparation of oral argument, and the presentation of that oral argument, required those practitioners to undertake a considerable amount of work. Mr Gronow and Ms Holt are to be commended for acting in the matter pro bono. In doing so, they provided invaluable assistance, not only to the applicant, but also to the Court, and they both performed their role in the highest and best traditions of the Victorian legal profession. We also take the opportunity to commend counsel, on both sides, for the most thorough, helpful and skilful manner in which argument was presented to the Court in this application.

[1] Phelan v Melbourne Health [2019] VCC 241 ('Reasons').

[14] Ibid [172]-[183], [185] and [201].

[19] Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, 483 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ).

[21] Chappel v Hart (1998) 195 CLR 232, 238 (Gaudron J); Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, 458 (Gummow J).

[23] Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301 [78] (citations omitted).

[24] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550, 558-9 [43] (citations omitted).

[25] Braham Investments Pty Ltd v Wantrup [2018] VSCA 291 [10]-[12] (citations omitted).

[26] Box Hill Institute of TAFE v Johnson [2015] VSCA 245 [37].

[27] [1916] 1 KB 849.

[29] [1960] Qd R 487.

[31] Lahrs v Eichsteadt [1961] Qd R 457, 461.

[32] [1971] 1 NSWLR 713.

[34] See, eg, Olga Investments Pty Ltd v Citipower Ltd [1998] 3 VR 485, 486 (Ormiston JA), 497 (Charles JA); Palios Meegan & Nicholson Holdings Pty Ltd v Shore (2010) 108 SASR 31, 42-5 [80]-[84] ('Palios'); Streeter v Western Areas Exploration Pty Ltd [No 2] [2011] WASCA 17; (2011) 278 ALR 291, 383 [520] (Murphy JA); Samm Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132; (2017) 345 ALR 633, 664 [150] (McColl JA); BHP Billiton Ltd v Dunning [2015] NSWCA 55 [106] (Macfarlan JA).

[35] Palios (2010) 108 SASR 31, 44-5 [84]; Drivas v Jakopovic [2019] NSWCA 218 [52]-[54] (Macfarlan JA).

[36] Cf Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187, 193 [16]; Gardiner v The Queen [2006] NSWCCA 190; (2006) 162 A Crim R 233, 260 [124]; Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206, 278 [359]-[360].

[43] Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537, 564 [66]-[69] (Hayne and Bell JJ), 578 [111] (Kiefel J).