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[2025] NSWCA 270
respondent. Appeal dismissed with costs. Grounds 1, 2 and 3 were not made out as to the revision surgery; Grounds 1 and 2 were not made out as to the period after surgery until 2017. Ground 5 was also...
The Court of Appeal dismissed Mr Taylor’s appeal against the dismissal of his medical-negligence claim. It held that the x-rays did not, by themselves, prove that the hip stem was loose at the August 2011 revision surgery or during the period up to 2017. The evidence about what the surgeon did during surgery, together with the operation report and expert evidence, supported the finding that the stem was not loose at the time of surgery. For the later period, the appellant’s reported activities and symptoms were important. The primary judge’s findings about those matters were not successfully challenged, and the orthopaedic experts considered the reported activity consistent with the appellant functioning well. The Court therefore found no basis to disturb the findings against negligence. It did not decide the causation grounds, and dismissed the appeal with costs.
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4 cited instruments linked from this judgment.
Taylor v Woodgate [2025] NSWCA 270 is an appeal from the dismissal of Stephen Taylor’s medical-negligence claim against orthopaedic surgeon Ian Woodgate. The Court of Appeal judgment was delivered by McHugh JA, with Harrison CJ at CL and Free JA agreeing ([1]-[2], [147]).
Woodgate treated Taylor between 2010 and 2019. He performed a left hip replacement on 10 May 2011 using, among other components, an MSA Size 2 femoral stem. By 22 June 2011, the stem had moved relative to the femur. Woodgate performed revision surgery on 30 August 2011, leaving the stem in place ([6]-[7]).
Taylor’s claim concerned several aspects of the treatment, but the appeal focused on whether the stem was loose at the revision surgery, whether it became loose between that surgery and 2017, and whether reasonable care required Woodgate to detect or investigate looseness and recommend another revision during that later period ([4]). Taylor relied on expert radiological evidence from Professor Thomson. The parties also called orthopaedic experts, Dr Doig and Dr O’Sullivan, who attended a conclave, produced a joint report and gave concurrent evidence ([16], [70]-[72]).
A significant feature of the appeal was that the primary judge’s factual and credit findings were largely not challenged. The primary judge accepted Woodgate’s evidence, substantially supported by his clinical notes, and rejected parts of Taylor’s account where it conflicted with those records or objective facts ([24]-[27]). The appeal court treated those findings as important to the assessment of Taylor’s symptoms and reported activity.
The Court answered each of its three dispositive questions in the negative and dismissed the appeal with costs ([5], [146]). It did not decide the causation grounds, which concerned whether a different stem or treatment timing would have produced a materially better outcome ([145]).
The Court’s reasoning depended on keeping separate three questions: whether the stem was actually loose, whether imaging showed features consistent with possible looseness, and whether a reasonable orthopaedic surgeon should have acted on those features.
For the 30 August 2011 surgery, Taylor argued that the radiological evidence supported a finding that the stem was loose. The Court explained that “lucency” identifies lower bone density and may indicate risk, but does not determine whether a device is actually loose. A change in the device’s position may also be an indicator, not a conclusive answer ([46]-[50]). The distinction mattered because Professor Thomson described a widening gap and progressive loosening, while the orthopaedic evidence and the respondent’s operative evidence provided a different evidentiary picture ([70]-[78]).
The Court found no appealable error in the primary judge’s implicit finding that the stem was not loose at the revision surgery. The primary judge had accepted Woodgate’s evidence about checking the stem, the operation report recorded “stem not loose”, and the orthopaedic experts considered the steps taken a reasonable way to assess stability. The parties accepted that those steps would have revealed looseness if it existed ([34]-[41], [79]-[80]). The Court emphasised that there was “ample direct and indirect evidence” that the stem was not loose ([80]).
The radiological evidence did not displace that evidence. The Court considered that the orthopaedic experts’ comments about post-surgery images did not establish that the stem was actually loose at the time of surgery. Their views about the images needed to be read in context, including their evidence that a stem could subside and then stabilise ([60]-[69]). The Court also noted that Professor Thomson had not addressed Woodgate’s operative checks and had said he was not qualified to comment on the operative method used to assess the stem ([77]).
For the period after surgery until 2017, the Court treated Taylor’s clinical presentation as central. The orthopaedic experts said radiological findings alone did not constitute a need to act and should be correlated with clinical findings. If a patient appeared to be functioning well, monitoring an abnormal radiological finding could be appropriate ([105]). The Court read “radiologically the stem was loose” in the experts’ joint report as describing imaging consistent with loosening, not a definitive finding that the stem was actually loose ([102]-[110]).
The primary judge had found that Taylor reported playing squash regularly, sometimes for several hours, and that the clinical notes accurately recorded the histories taken by Woodgate ([122]-[124]). The experts considered that the reported activity was inconsistent with a definitely loose stem, and that Taylor was “functioning fine” on the assumptions that corresponded substantially with the primary judge’s findings ([118]-[123], [141]-[143]). The Court held that Taylor had not established that the stem became loose during the relevant period ([132]-[134]).
The Court also addressed the later-management negligence argument in the alternative. Even if the stem had been loose, it would not automatically follow that Woodgate breached his duty by failing to detect it or recommend surgery. The assessment depended on what Taylor reported at consultations, and the primary judge’s findings about those reports remained in place ([137]-[143]). The Court said Woodgate was entitled to act on the reported activity and that it was difficult to see a basis for finding negligence in not recommending further revision ([142]-[144]).
The judgment does not announce a new statutory test or state that it changes the law of medical negligence. It applies the Civil Liability Act 2002 (NSW) and evaluates the evidence in this particular clinical setting.
Section 5A is identified as the provision making Part 1A of the Act applicable to Taylor’s claim. The judgment sets out s 5B, under which a person is not negligent for failing to take precautions against a risk unless the risk was foreseeable, not insignificant, and a reasonable person in that position would have taken the precautions. The court must consider matters including the probability and seriousness of harm, the burden of precautions and the social utility of the activity creating the risk ([8]). The primary judge had not referred to s 5B, so the Court identified the alleged precautions by reference to Taylor’s pleaded and particularised case ([9]-[12]).
The parties agreed that matters on which the orthopaedic experts agreed were widely accepted in Australia as competent professional practice for the purposes of s 5O ([16]). In the appeal, the Court’s practical focus was on the evidence about reasonable checking during the operation and the assessment of later symptoms and imaging. It did not set out a broader interpretation of s 5O.
The judgment also quotes s 5D, which requires factual causation and scope of liability for a determination that negligence caused particular harm ([22]). But the Court did not resolve causation. It considered that, in the absence of an established breach, it was not appropriate to answer the counterfactual questions posed by Grounds 4 and 6 ([145]).
Accordingly, the “before and after” position should be described narrowly. The judgment applies the statutory framework to disputes about implant stability, expert evidence and clinical presentation. It does not state that the statutory provisions were amended, displaced or given a new general meaning by this decision.
At [46], the Court explains that “loose” was used as the opposite of “stable”, meaning securely fixed in place. Plain English: the court was deciding whether the implant was actually unstable, not simply whether an image showed an unusual feature.
At [47]-[50], the Court distinguishes lucency and movement from proof of actual looseness. Lucency can indicate reduced bone density, and movement can be a sign that an implant is loose or has been loose, but neither is determinative by itself. Plain English: an x-ray may raise a concern without answering the clinical question conclusively.
At [80], the Court says the radiological evidence was “not conclusive” and that there was “ample direct and indirect evidence” that the stem was not loose at the revision surgery. Plain English: the Court considered the imaging alongside the operation evidence and found that Taylor had not shown the primary judge’s conclusion was wrong.
At [105], the experts’ view was that radiological findings alone did not require action and needed to be assessed against clinical findings. Plain English: an abnormal image was relevant, but the patient’s symptoms and function helped determine what it meant and whether intervention was needed.
At [133], the Court states that, considering the clinical findings and expert evidence, the clear inference was that the device was not loose during the later period. Plain English: the Court considered Taylor’s reported activity and the experts’ evidence inconsistent with actual loosening.
At [142]-[143], the Court says a surgeon exercising reasonable care was entitled to act on the history Taylor reported, and that the reported activity indicated he was “functioning fine”. Plain English: for this case, the consultation history supported the respondent’s assessment that further revision was not called for on the information being reported.
The judgment is most relevant to disputes where a party argues that imaging proves an implant was loose, but the treating professional relies on operative findings, clinical records, patient-reported function or expert evidence pointing the other way. Its reasoning highlights the need to distinguish radiological evidence consistent with possible loosening from a conclusion that the implant was actually loose ([46]-[50], [77]-[80], [103]-[113]).
It may also be relevant where expert evidence comes from practitioners in different specialties. Here, the Court considered the radiologist’s evidence alongside the orthopaedic experts’ evidence, and noted that Taylor accepted orthopaedic surgeons had expertise in interpreting radiological imaging equal to that of a specialist radiologist ([52]). The Court did not establish a general rule that one specialty’s evidence always prevails. Its assessment depended on the evidence and the issues litigated in this case.
The judgment also matters where a clinical negligence allegation depends on symptoms or limitations said to have been reported at repeated consultations. The primary judge’s findings about the reliability of contemporaneous clinical notes and the patient’s credibility were important and largely unchallenged on appeal ([24]-[27], [91]-[92]). The appeal court then assessed whether the reported activity was consistent with a definitely loose stem ([118]-[134]).
The fact pattern does not support treating every case involving lucency, progressive radiological measurements or persistent complaints in the same way. The judgment stresses context: the nature of the imaging, the operative checks, expert interpretation, symptoms, function and the reliability of the history recorded in consultations.
The supplied judgment contains no discussion of later courts’ treatment of this decision. As the decision is dated 15 December 2025, this text does not establish whether later judgments have applied, distinguished or criticised it. No later-treatment conclusion can responsibly be drawn from the supplied source alone.
The only other Taylor v Woodgate decision identified in the judgment is the primary decision under appeal, Taylor v Woodgate [2025] NSWDC 89 ([3]). The Court of Appeal discusses the trial judge’s findings and reasons because they were the subject of the appeal. That is not evidence of subsequent treatment by a later court.
For legal research purposes, the appellate judgment’s own limits are also important. It resolves the appeal on its record, including particular findings about Taylor’s reported activity, the respondent’s notes and the experts’ evidence. The judgment should not be read as laying down a universal clinical rule that a patient who plays sport cannot have a loose implant, or that imaging is generally unimportant. The Court’s reasoning is tied to the evidence and findings before it ([118]-[134]).
The Court did not determine the causation issues raised by Grounds 4 and 6. It considered that those counterfactual questions would require assumptions different from the findings made at trial, and that they need not be addressed once no negligence had been established ([145]). The judgment therefore does not decide whether a conventional stem or a different timing of surgery would have produced a materially better outcome.
Nor did the Court decide a general question about how much radiological change, or what combination of symptoms and imaging, would require a reasonable orthopaedic surgeon to investigate further. It decided that question against Taylor on the particular evidence, including the experts’ opinions and the primary judge’s findings about function and reported symptoms ([105]-[116], [132]-[144]).
The judgment leaves room for future cases to address how imaging, symptoms and operative findings interact where the clinical record differs, where the patient’s reported function is more limited, or where expert evidence is more directly directed to the timing and fact of loosening. Those are possibilities suggested by the judgment’s fact-sensitive reasoning, not questions answered by it.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Taylor v Woodgate [2025] NSWCA 270
Hearing dates: 28 October 2025
Date of orders: 15 December 2025
Decision date: 15 December 2025
Before: Harrison CJ at CL at [1];
McHugh JA at [2];
Free JA at [147]
Decision: Appeal dismissed with costs.
Catchwords: NEGLIGENCE — Medical negligence — Whether primary judge overlooked or incorrectly rejected expert radiological evidence — Whether doctor failed to take reasonable care — Whether hip prosthesis loose at time of revision surgery or thereafter until 2017
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5A, 5B, 5D, 5O
Cases Cited: Taylor v Woodgate [2025] NSWDC 89
Category: Principal judgment
Parties: Stephen Taylor (Appellant)
Ian Woodgate (Respondent)
Representation: Counsel:
H Chiu SC; K Young (Appellant)
R Perla; J Hart (Respondent)
Solicitors:
Slater & Gordon (Appellant)
HWL Ebsworth (Respondent)
File Number(s): 2025/127431
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The respondent, Dr Woodgate, is an orthopaedic surgeon who treated the appellant, Mr Taylor, in the period 2010 to 2019. On 10 May 2011, he performed surgery to replace the appellant’s left hip with prostheses, including an MSA Size 2 femoral stem (the stem). By 22 June 2011, the stem had moved relative to the appellant’s femur. This led to revision surgery, which the respondent performed on the appellant on 30 August 2011 (the Revision Surgery). The Revision Surgery left the stem in situ.
After the Revision Surgery, the appellant had many consultations with the respondent. On 28 March 2019 the respondent advised the appellant that there had been a loosening of the hip prostheses and that, in his view, the appellant required another revision surgery. The appellant consulted with another orthopaedic surgeon, Dr Neil, who also recommended revision surgery. Dr Neil performed that surgery on 27 April 2019.
The appellant sued the respondent for negligence said to arise out of advice given before the initial surgery, steps taken during the Revision Surgery, his post-operative treatment and the respondent’s consideration of radiographic imaging. Both parties called expert orthopaedic witnesses. The orthopaedic experts attended a conclave that led to a joint report and they gave evidence concurrently. The appellant also relied on a report by a radiological expert.
The primary judge held that the respondent was not negligent in any of the respects alleged by the appellant. The appellant appealed. The dispositive questions on appeal were:
(1) Was the stem loose at the time of the Revision Surgery?
(2) Did the stem become loose at some time in the period between the Revision Surgery and 2017?
(3) In the period after the Revision Surgery until 2017, would an orthopaedic surgeon exercising reasonable care have detected or investigated whether the stem was loose and recommended further revision surgery?
The Court held (McHugh JA, Harrison CJ at CL and Free JA agreeing) dismissing the appeal:
As to the first dispositive question
(1) With respect to the position as at the date of the Revision Surgery, the appellant did not establish that the primary judge erred by overlooking or rejecting the expert radiological evidence. The radiological evidence was not conclusive and there was ample direct and indirect evidence that the stem was not loose. That evidence, which the primary judge accepted, included the written report of the Revision Surgery prepared by the surgeon assisting and checked by the respondent, the respondent’s evidence of usual practice, his direct evidence recalling the steps he took during the Revision Surgery, and the orthopaedic experts’ evidence that those steps were reasonable to determine any looseness. In light of that evidence and the common ground that those steps would have revealed any looseness, there was no error in the implicit finding that the device was not loose at that time. Accordingly, there was also no error in finding that the respondent discharged his duty of care to the appellant when checking the stem for loosening during the Revision Surgery: [79]-[80], [87].
As to the second dispositive question
(3) With respect to the position in the period after the Revision Surgery until 2017, the appellant again did not establish that the primary judge erred in overlooking or rejecting the expert radiological evidence. Given the limitations of that evidence, the appellant’s clinical presentation was central to determining whether the stem was loose in that period. When the primary judge’s findings as to the appellant’s clinical presentation were viewed in light of the orthopaedic experts’ evidence, the inference to be drawn was that the stem was not loose: [90]-[91], [115], [132]-[134].
As to the third dispositive question
(5) A surgeon exercising reasonable care was entitled to act on the history given to him in consultations with the appellant as to the appellant’s level of function and activity. The evidence of both orthopaedic experts was that, in light of the primary judge’s findings as to the appellant’s clinical presentation, “clinically, the plaintiff was functioning fine”. That being so, the respondent was not negligent in failing to recommend further revision surgery: [139]-[143].
HARRISON CJ at CL**:** I agree with McHugh JA.
McHUGH JA: The respondent is an orthopaedic surgeon who treated the appellant in the period 2010 to 2019. On 10 May 2011, he performed surgery to replace the appellant’s left hip with prostheses including an MSA Size 2 femoral stem (the stem). On 30 August 2011, the respondent performed revision surgery in which the stem was left in situ (the Revision Surgery). The respondent provided the appellant with ongoing management of various conditions thereafter.
The appellant sued the respondent, alleging various species of negligence in relation to his treatment. The primary judge, Weber SC DCJ, dismissed the claim: Taylor v Woodgate [2025] NSWDC 89. In this Court, his Honour’s findings of primary fact, including adverse credit findings, are largely unchallenged, and some aspects of the appellant’s claim below have fallen away.
The dispositive questions on the appeal are as follows.
Was the stem “loose” at the time of the revision surgery (Grounds 1 and 2)?
If the answer is no, the appellant accepts that his claim of negligence in relation to the performance of the revision surgery (Ground 3) must fail. Conversely, if the answer is yes, the respondent accepts that a failure to identify that the stem was loose when performing the revision surgery would have been negligent.
If the answer is no, the appellant accepts that his claim in relation to the respondent’s ongoing management of his hip (Ground 5) must fail. If the answer is yes, it is necessary to answer Question 3.
In the period after the revision surgery until 2017, would an orthopaedic surgeon exercising reasonable care have detected or investigated whether the stem was loose and recommended further revision surgery (Ground 5)?
The answer to each question is no. The appeal must be dismissed. That being so, it is unnecessary to answer the questions of causation which arise under Grounds 4 and 6.
The appellant is 56 years old and has had a history of hip problems since childhood. He first attended on the respondent on 24 August 2010. On 15 October 2010, the respondent operated on the appellant at St Vincent’s Hospital. Thereafter, the appellant consulted with the respondent on a number of occasions, including on 2 December 2010 when they discussed a possible total left hip replacement. The respondent performed that surgery on 10 May 2011 at St Vincent’s Private Hospital. Among the prostheses used was an MSA Size 2 femoral stem made from titanium alloy, referred to in the appellant’s submissions as an “MSA short stem device”.
It was not in dispute that by 22 June 2011, the stem had moved relative to the femur. This led to the Revision Surgery, which the respondent performed on 30 August 2011 at St Vincent’s Hospital. Thereafter the appellant had many consultations with the respondent. On 28 March 2019, the respondent advised the appellant that there had been loosening of the hip prosthesis and that, in his view, the appellant required another revision surgery. The appellant consulted with another orthopaedic surgeon, Dr Neil, who also recommended revision surgery. That surgery was performed by Dr Neil on 27 April 2019.
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
The primary judge did not refer to s 5B. Nor did his Honour identify the relevant “risk of harm” that the respondent failed to take precautions against for the purposes of that section. In the circumstances, it is convenient to identify the appellant’s pleaded and particularised case as to the precautions a reasonable person in the respondent’s position would have taken.
In the appellant’s amended statement of claim the total left hip replacement surgery that the respondent recommended on 12 January 2011 was said to be associated with the following risks of harm:
“(a) use of a short stem femoral prosthetic, which was a novel prosthesis compared with conventional femoral stem prosthetics, was associated with a higher risk of aseptic loosening and/or its efficacy was unknown due to limited studies (‘the first risk of harm’);
(b) there was a risk of metallosis due to wear and tear of metal on metal components (‘the second risk of harm’);
(c) there was a risk that short stem femoral prosthetic might not become fixed solidly within the femur or otherwise might become loose thereafter, leading to pain, leg length inequality and significant morbidity (‘the third risk of harm’).”
“At the initial hip replacement procedure and then between 31 May 2011 and the date of the revision surgery on 30 August 2011, by reason of the abnormalities shown on the x-rays and CT scans … and the plaintiff’s ongoing chronic symptoms, the third risk of harm was or ought to have been foreseeable to the defendant.
Further and in the alternative the third risk of harm was or ought to have been foreseeable to the defendant if checking competently whether the femoral stem was loose during revision surgery on 30 August 2011.
Further and in the alternative the third risk of harm was or ought to have been foreseeable to the defendant when x-rays were observed on (a) 14 October 2011, which also showed the lateral lucency increased to about 4mm; (b) on 8 March 2012, which also showed that lucency increased to about 4.5mm and (c) on 9 August 2012, which showed lucency increased to about 5.5mm.
Further and in the alternative the third risk of harm was or ought to have been foreseeable to the defendant when x-rays dated 14 August 2015 were observed by the defendant on 14 August 2015 and at which time the plaintiff continued to complain of the chronic symptoms.
Further and in the alternative the third risk of harm was or ought to have been foreseeable to the defendant when x-rays dated 28 July 2016 were observed by the defendant on 17 August 2016 and at which time the plaintiff continued to complain of the chronic symptoms.
Further and in the alternative the third risk of harm was or ought to have been foreseeable to the defendant when x-rays dated 4 August 2017 were observed by the defendant on 30 August 2017 and at which time the plaintiff continued to complain of the chronic symptoms.
The … third risk of harm [was] ‘not insignificant’ for the purposes of section 5B(1)(b) of the CLA both in terms of:
(a) a qualitative assessment of the chances of the harm occurring; and
(b) an evaluative assessment of the severity of and the consequences of the harm occurring.”
At J[23]-[27] the primary judge summarised the appellant’s case as to the precautions he said the respondent should have taken in relation to the stem. These comprised the following.
The respondent was “not meticulous when checking if the femoral stem was loose, and omitted critical steps which, if followed, would have led to the discovery that the stem was loose.”
The respondent ignored or downplayed the appellant’s complaints that he was experiencing chronic pain, restricted movement, and a loose femoral stem and/or significant leg discrepancy from 2012 to 2019, and failed to investigate those complaints either adequately or at all.
The respondent failed to interpret radiological evidence of progressive loosening of the femoral stem in consultations as early as 14 October 2011, and up until August 2017. Specifically, the appellant alleged that the respondent misinterpreted MRI imaging from March 2013 and failed to synthesise this data with the appellant’s reports to him of ongoing symptoms and, as a consequence, the respondent failed to arrange a second revision procedure to replace the stem. Similarly, the appellant alleged that the respondent was negligent in misinterpreting an MRI scan in February 2013 as positively excluding the presence of stem loosening. This misinterpretation led to the respondent’s failure to reconsider femoral stem loosening as a potential cause of the plaintiff’s ongoing symptoms after that date.
It is convenient to give an overview of the way the issues were framed at trial and of the primary judge's conclusions on those issues. Detailed consideration of his Honour’s findings and the evidence relevant to them will be deferred until consideration of the issues on the appeal.
The primary judge stated at J[29] that the parties agreed that the issues requiring determination by the Court could be reduced to 5 issues, which his Honour adopted. His Honour summarised those issues in the following headings:
“Alleged Failure to Advise and/or Warn During the Initial Pre-Operative period”;
“Steps Taken During the Revision Surgery to Identify and Eliminate Loosening”;
“Alleged Negligence in Post-Operative Management”;
“Consideration of Radiographic Imaging”;
“Whether the Plaintiff would have had Pain Free and Functional Use of his Leg if a Conventional Stem had been Used”.
Issue 1 is not relevant in this Court. But the way in which the issues were formulated should be understood to reflect the way in which the case was put below, and is important context for the way in which the case is now put on appeal.
Both parties called an expert orthopaedic witness: Dr Doig was called by the appellant and Dr O’Sullivan was called by the respondent. These witnesses provided reports and ultimately attended a conclave. This led to a joint report, in which the experts were in substantial agreement in relation to the issues upon which they were asked to opine. Dr Doig and Dr O’Sullivan also gave evidence concurrently. The parties agreed that the matters on which the experts agreed in their report were to be taken as “widely accepted in Australia by peer professional opinion as competent professional practice” for the purposes of s 5O of the CLA.
With respect to the Revision Surgery, the primary judge accepted the respondent’s evidence about the steps he undertook during the surgery. His Honour noted that Dr Doig and Dr O’Sullivan had opined that if such steps were undertaken, then that was a “reasonable way to assess whether the femoral stem was loose.” His Honour also referred to the operation report authored by Dr Grieve, who assisted the respondent with the surgery, which recorded that the stem was not loose. Accordingly, the primary judge found that the respondent had not breached his duty of care to the appellant during the Revision Surgery.
The primary judge then turned to the alleged negligence in the respondent’s post-operative management of the appellant. His Honour referred to the expert orthopaedic surgeons’ opinion that in order to diagnose a loosening of the prosthesis, an orthopaedic surgeon exercising reasonable care and skill would be required (a) to undertake a focused clinical examination of the patient; (b) to obtain a careful history from the patient; and (c) to evaluate the radiological imaging. His Honour found that there was no failure on the part of the respondent to exercise such reasonable care and skill.
“[151] The orthopaedic experts opined that there was no radiological evidence of movement in the stem from August 2011 to 2017. This was also the conclusion of the defendant. In these circumstances, I do not consider that I should prefer the opinion of Dr Thomson, a radiologist, over the joint opinion of the orthopaedic experts. To put the matter bluntly, I would not find the defendant, an orthopaedic surgeon, had neglected to consider radiological evidence in circumstances where his conclusion on that evidence mirrored the joint view of the orthopaedic experts.
[152] The defendant’s legal duty was to exercise the degree of skill and care of a reasonable orthopaedic surgeon. That is the issue to which the orthopaedic evidence was directed.
[153] The defendant’s duty was not to obtain the degree of skill and care of a specialist radiologist. In any view, if Dr Thomson’s evidence were to be accepted over that of the orthopaedic experts, then that would lead to the risk that the defendant would be judged by the wrong standard.”
Accordingly, his Honour held that the respondent had not breached his duty of care to the appellant when interpreting his radiological results.
On the issue of causation, the primary judge first referred to s 5D of the CLA, which relevantly provides:
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
“[158] In my view, it is more likely than not that, had the procedure been undertaken with a conventional stem in August 201[1], the plaintiff would have had the same result as he did when he underwent the surgery to insert a conventional stem prosthesis, as was performed by Dr Neil in 2019. That is to say that the plaintiff continues to experience broadly similar problems with his left hip, as he reported to Mr Ryan, a physiotherapist, in late 2021 and to Dr Negus in June 2022.
[159] In addition to this evidence, Drs Doig and O’Sullivan confirmed that the X-rays from 2019 following the Revision Surgery show that the more conventional stem implanted by Dr Neil had also moved into varus. Based on this evidence, such subsidence can be causative of the leg length discrepancy and scoliosis about which the plaintiff complains.”
“[115] In summary, as to matters of credit I accept the evidence of the defendant, based as it is substantially on his clinical notes, which I consider to be reliable, and do not accept the evidence of the plaintiff except where it is either corroborated or against interest.”
The manner in which the witnesses gave evidence played some part in those credit findings; see, e.g., at J[87]. However, as to the respondent, the credit finding in his favour turned largely on the support his evidence drew from his clinical notes. The primary judge accepted the respondent’s evidence about his usual practice of recording contemporaneous notes during consultations, the appellant having confirmed that the respondent took notes during each and every consultation: J[89] and [90]. His Honour said he had “no hesitation in accepting the defendant’s clinical notes … in preference to the plaintiff’s recollection, where there is a dispute about what occurred in any given consultation.” To the extent that the appellant submits that there were inconsistencies in details between different accounts given by the respondent at different points in time (appellant submissions at pars 32-33), that submission does not answer this reasoning. In any event, the claimed inconsistencies, if they were inconsistencies at all, were inconsequential.
As to the appellant, the adverse credit finding turned on a number of matters unconnected with demeanour. These included conflict between his evidence and the respondent’s contemporaneous notes (e.g., J[94]-[96], [99], [103], J[109], [110]); that the appellant was prone to exaggeration when he thought it would assist his case (J[97], [105]); and inconsistency with objective facts, such as the records of the appellant’s GP with respect to the extent of the appellant’s pain (J[105]).
There was no direct challenge to those adverse credit findings on the appeal. The furthest the appellant went was to suggest that if the stem was in fact loose at the time of the appellant’s consultations with the respondent, that fact would give some support to the appellant’s account of what he told the respondent, such that the credit findings might have to be reconsidered. But, as will be seen, there is a chicken-and-egg aspect to that submission.
The notice of appeal contains the following grounds:
“The primary judge erred in overlooking or rejecting radiological expert evidence as to what imaging obtained during the period from August 2011 to 2017 showed as to loosening or movement in the appellant’s femoral stem.”
“The primary judge erred in finding that there was no loosening or movement in the appellant’s femoral stem from August 2011 to 2017.”
“The primary judge erred in finding that the respondent discharged his duty of care to the appellant, when checking the femoral stem for loosening during the revision procedure on 30 August 2011.”
“The primary judge erred in finding that the appellant would not have achieved a materially better outcome even if a conventional femoral stem had been implanted during the revision procedure on 30 August 2011.”
“The primary judge erred in finding that the respondent discharged his duty of care to the appellant in consultations between the revision procedure on 30 August 2011 and prior to the last consultation on 28 March 2019, despite the respondent in each consultation between that period not detecting, investigating or recommending revision surgery to treat signs of loosening or movement in the femoral stem.”
“The primary judge erred in finding that the appellant would not have achieved a materially better outcome even if a conventional femoral stem had been implanted during the period from 30 August 2011 until May 2019.”
It should be noted that, as the argument was put, Grounds 1 and 2 both concern two different time periods: the position at the time of the Revision Surgery, and the position during the management phase over several years thereafter. Distinct issues arise as to both periods. In light of the ways in which the argument was developed, it is convenient to begin by addressing Grounds 1 and 2 together as at the time of the Revision Surgery. That is the substance of Question 1 identified at [4] above.
It is important to understand the context in which the Revision Surgery took place. The MSA short stem device consisted of separate components: a tapered stem, a modular neck, a head and an acetabular cup. The respondent gave evidence about the device’s characteristics. He said it was modular and capable of being tailored to the requirements of the particular patient. The respondent said that it was typical for there to be some minor subsidence (that is, movement of the stem downwards into the femur towards the feet) around 6 to 12 weeks after the surgery. The original surgery was on 10 May 2011. By reference to his clinical record for 22 June 2011, the respondent gave evidence that he had observed on an x-ray made that day that “the stem was loading on the medial side and there was that little minimal bit of subsidence that I referred to earlier which is very typical of these MSA stems as they completely lock home into their final position so it loads the medial bone.” Tcpt, 20 March 2024, 386.44-7.
The respondent gave evidence that when the appellant next consulted him on 1 August 2011, the appellant, who had brought further x-rays made that day, stated that he was finding the inequality in his leg length intolerable. The respondent said that he had observed a difference between the x-rays of 22 June and 1 August 2011 as follows: “he’d had a stress fracture of the medial calcar that appeared to be healed, that his implant had stabilised, and his leg length had shortened approximately 11 mm at the neck.” Tcpt, 20 March 2024, 388.42-5. The respondent ordered a CT scan. He gave evidence, again by reference to his clinical record, that he had thought the appellant “should have a revision, possibly just to the head and neck [of the MSA short stem device], but at St Vincent’s I always have stems available.” Tcpt, 389.11-12. A possible explanation for the stress fracture was that the appellant had told him that he had stumbled backwards off a step in rehab. Referring to the imaging, the respondent said: “there’d been a change in the position of the implant and it was clearly due to a calcar fracture, which I therefore assumed related to that off-the-cuff reported stumble backwards off a step as part of his exercises in rehab.” Tcpt, 390.6.
The effect of that evidence was that at the time of the revision surgery on 30 August 2011, the respondent understood that the implant had moved from its initial position (both because of minor subsidence as the stem locked home, and later because of the calcar fracture); that revision was required at least to address the leg length inequality; but that the imaging was consistent with the stem’s having stabilised in place (“stable” being the opposite of “loose”). It was common ground that in that situation (a) an orthopaedic surgeon exercising reasonable care must take appropriate steps in the course of the surgery to determine whether the stem of the device was in fact stable, but (b) if that proved to be so, it would not be necessary for the surgeon to replace the stem when performing the Revision Surgery. It was not suggested in the expert orthopaedic evidence that there was anything intrinsically wrong with that approach. In particular, it was not suggested that the fact that there had been movement or looseness in the stem prior to the Revision Surgery meant that the stem must be loose at the time of that surgery.
“Dr O’Sullivan stated that he considered a surgeon would have commenced this procedure with the presumption that the femoral component was loose and would have had implants there to revise it. Dr O’Sullivan stated that the surgeon would remove all the soft tissue around the proximal femur so that the whole 360 degree interface between bone and implant can be viewed. The surgeon would then use a slap hammer on the femur and if the prosthesis does not move then it would be presumed to be stable. This is the case when even acknowledging that it had shifted in position but if it did not move under these conditions, then it can safely be presumed to have shifted into a stable position.
…
Dr Doig agreed with Dr O’Sullivan that if a surgeon is absolutely convinced the prosthesis is stable, and that it has collapsed into a stable position, it is perfectly reasonable not to revise it under those circumstances.
Dr Doig observed that with a standard prosthesis, if it is really loose, you can take it in your fingers and wobble it. Dr Doig further stated that if the surgeon thought it was loose, then it would be prudent to use a mole wrench on it to try and slap the prosthesis out to assess whether it was loose.”
Emphasis added.
Against that background, the primary judge made findings about the steps that the respondent took in order to determine whether the device was stable in the course of the Revision Surgery. His Honour accepted the respondent’s evidence about the steps he in fact took, and, in light of the orthopaedic experts’ evidence, his Honour found that those steps were sufficient to discharge the respondent’s duty to take reasonable care.
The respondent gave evidence that he had an actual recollection of performing the particular Revision Surgery upon the appellant. He said that the case had “a very unique history”: Tcpt, 20 March 2024, 404.12. He recalled feeling pleased that he had interpreted the imaging studies correctly. He said that he observed that the stem was stable, “implying that the stem had impacted into a new position, the fracture had healed and bonded onto the implant, yet again, in its new, for want of a better term, steady state or stable position, which is the nature of the taper implant.” Tcpt, 404.29-3. In cross examination, the following exchange took place:
“Q. You have no recollection of having applied an instrument to the stem itself after removing the neck in order to check if the stem was loose.
A. I remember applying a slap hammer, the smaller one, as I’ve only had two stem failures related to loosening in my practice of this implant.”
Tcpt, 25 March 2024, 548.20-24.
Although the primary judge did not expressly refer to that evidence, he plainly accepted it: “The defendant submitted that I should accept the defendant’s evidence as [to] the steps which he undertook during the Revision Surgery. For the reasons which follow, I have little hesitation in accepting the defendant’s evidence as to those steps”: J[66]; see also [69]. There were two main aspects to the reasoning that followed.
First, his Honour referred at J[67] to the respondent’s evidence about his usual practice. The respondent had performed in the order of 400 revision surgeries, which he said he always performed in the same particular way. The primary judge noted that the respondent described his process in detail, including the steps which he said he always took to determine the stability of the stem. The respondent gave evidence that he had no doubt that he had followed his usual practice, which he likened in cross-examination to the systematic processes that pilots follow: J[68].
Secondly, the primary judge relied on the surgical report of the Revision Surgery, which recorded “stem not loose”. His Honour referred to the respondent’s evidence that he had discussed the operation with his surgical assistant, Dr Grieve, while Dr Grieve was writing the report; that the respondent then checked the report; and that he made his own additions to it: J[67]. As to the appellant’s submission that the report did not record any steps taken by the respondent to determine the stability of the stem, his Honour accepted the respondent’s explanation that the report was an overall review of what happened during the operation, rather than an attempt to record everything which had happened during the procedure: J[70].
The evidence that the respondent had given about the steps he took in the course of the Revision Surgery was put to the orthopaedic experts when giving concurrent evidence. The primary judge considered it of crucial significance that the joint view of the orthopaedic experts Dr Doig and Dr O’Sullivan was that those steps were “a reasonable way to assess whether the femoral stem was loose”: J[72].
On its face, this evidence of the orthopaedic experts went to the question of breach (i.e., whether the respondent’s performance of the Revision Surgery met the standard required of an orthopaedic surgeon exercising reasonable care), rather than to the underlying question whether the stem was loose.
But the argument at the hearing of the appeal went further. It was conducted on the basis that if the stem had in fact been loose, the steps which the respondent said he took would have revealed that fact. It followed that if, as his Honour found, the respondent did in fact take those steps when performing that Revision Surgery and they did not reveal that the stem was loose, it was not loose.
Ground 1 is: “The primary judge erred in overlooking or rejecting radiological expert evidence as to what imaging obtained during the period from August 2011 to 2017 showed as to loosening or movement in the appellant’s femoral stem.”
The appellant accepted that success on Ground 1 was significant only to the extent that it flowed through to Ground 2, which is: “The primary judge erred in finding that there was no loosening or movement in the appellant’s femoral stem from August 2011 to 2017.”
Before addressing so much of Grounds 1 and 2 as concern the Revision Surgery, several points should be noted.
First, it is necessary to say something about terminology.
The evidence and submissions were expressed in terms of whether the device was “loose” at a particular point in time. For this purpose “loose” should be understood as the opposite of “stable”, in the sense of the device being securely fixed in place.
It does not appear to have been disputed that areas of what is termed “lucency” or “rarefaction” on an x-ray identify areas of lower density. Lucency may be an indicator that there is a risk that the device is loose, but it is by no means determinative. The respondent explained in cross-examination: “Lucency means there may be some loss of bone in the area. It doesn’t have to be loose to have that, you can have it as isolated pockets.” Tcpt, 25 March 2024, 576.22-4. He had earlier said in chief, “An x-ray is a two-dimensional representation of a three-dimensional structure so you have to look at multiple imaging studies to see if bone is growing in all surfaces. An implant can be stable with just a spot weld, but it is much more pleasing to see bone growing on all four surfaces of the implant.” Tcpt, 20 March 2024, 407.46-9.
It was also not disputed that radiological imaging can show a change in a device’s position when compared with imaging from an earlier time, what the parties described as “movement”. The fact that there has been movement in the sense of a change in a device’s position may again be an indicator that the device is (or at least has been) loose, but again it is not determinative.
At times the evidence referred to “radiological looseness”. That term was used as a shorthand to mean that some aspect of the radiological imaging, such as a lucency, was consistent with the device being loose. “Radiological looseness” in that sense is to be distinguished from a determination that a device is actually loose.
Secondly, and following from the point just made, it was also common ground that radiological evidence is not necessarily conclusive of the question whether a device is “loose”. Short of carrying out tests such as those that the respondent said he performed in the course of carrying out the Revision Surgery, looseness might be determined by correlating the radiological evidence with a clinical examination and exploration of the patient’s history of functionality. Even then, Dr Doig (called by the appellant) said that radiological reports were of less importance diagnostically than clinical examination and exploration of the patient’s history of functionality taken by that surgeon: J[144]. The highest the appellant (who relies heavily on the radiological evidence) put it is that, for the purposes of the judicial assessment of probabilities, in the absence of clear evidence to the contrary, looseness can be established on the radiology alone. There was, however, powerful evidence to the contrary in this case, being the respondent’s evidence of his usual practice, his recollection of the surgery and the surgical report.
“The plaintiff submits that the defendant did not perform critical steps to ensure femoral stem stability during the Revision Surgery on 30 August 2011. He says that this omission led to a failure by the defendant to identify that the femoral stem of the hip implant was loose, and that this subsequently resulted in a failure by the defendant to recommend that the mini stem be replaced with a conventional stem (the ‘Second Issue’).”
The focus of that issue was very much the question of breach: whether the respondent had exercised reasonable care by taking the necessary steps to check that the stem was not loose. To the extent that the primary judge is now said to have erred by overlooking or rejecting radiological expert evidence of Professor Thomson said to be relevant to a different question, whether the stem was in fact loose at the time of the Revision Surgery, the fact that his Honour did not advert to that evidence must be seen in light of the focus of Issue 2 as agreed by the parties. It is also significant that the radiological evidence of Professor Thomson was not put to either orthopaedic expert in the course of their concurrent evidence. Nor was the respondent cross-examined on Professor Thomson’s opinions, either at all or (significantly) in connection with what occurred during the course of the Revision Surgery.
Sixthly, although the appellant’s argument under Grounds 1 and 2 was directed both to the position at the time of the Revision Surgery and to the period of several years after it, the argument, particularly in the appellant’s written submissions, located the claimed error specifically in J[145] and [151]. But those paragraphs were addressing the question whether there was any movement of the stem “after August 2011 until 2017”: J[145]. The reference at J[151] to “movement in the stem from August 2011 to 2017” must be read as being to the same effect. That is clear from the context in which the primary judge made the findings at J[145] and [151], which was under the heading “Issue 4 — Consideration of Radiographic Imaging”. His Honour began consideration of that issue by summarising the appellant’s submissions at J[139]:
“The plaintiff submits that the defendant failed to interpret radiological evidence of progressive loosening of the femoral stem in consultations as early as 14 October 2011 and until August 2017. He says that this included the defendant incorrectly interpreting MRI imaging from March 2013 (the ‘Fourth Issue’).”
Emphasis added.
The primary judge’s reasoning at J[145] and [151] was thus directed to the period after the Revision Surgery and to whether the respondent failed to interpret the radiological evidence as showing “progressive” loosening of the stem from that time. It will be necessary to return to the radiological evidence when addressing the appellant’s case about the period of ongoing management after the Revision Surgery. But to the extent that the appellant’s attack on J[145] and [151] is directed to the position at the time of the Revision Surgery, it misfires.
Seventhly, there is a further difficulty, both with the orthopaedic experts’ evidence and with that of Professor Thomson, in that the questions that they were asked and the answers that they gave did not always clearly distinguish between the period prior to the Revision Surgery, the situation on the day of the Revision Surgery, and what occurred afterwards.
“Both experts agreed that there was a significant difference and change in the position of the implant from 31 May 2011 to 22 June 2011. The experts were of the opinion that it is not difficult to see the change between the two x-rays which showed that the lateral part of the stem had moved and was impacting the lateral cortex of the femur. As Dr Doig described, the x-ray shows a significant superior rarefaction where the prosthesis has come away from the bony interface proximally and laterally and it looked as though the tip of the femoral stem was impacting on the endosteal surface of the femur. That shows that the femoral stem appears to have collapsed into varus and had subsided.
Dr O’Sullivan agreed with Dr Doig’s description and, with the x-ray in front of him on the screen, he observed that it has shifted into varus and the lateral part of the stem is impacting the lateral femoral cortex.”
“Both experts agreed that a competent orthopedic surgeon should have detected loosening of the femoral stem. In this case, the loosening was detected and there were clear radiological signs evident in the difference between the two x-rays. The detection of the loosening subsequently led to the revision surgery.”
Emphasis in original.
As to the position at the time of the Revision Surgery, while the expert orthopaedic surgeons answered questions in their joint report about the radiological imaging after the Revision Surgery, the questions they were asked were not specifically directed to determining whether the device was loose as at 30 August 2011.
Question 8 asked whether a competent orthopaedic surgeon should have compared various sets of x-rays in consultations at different points in time.
In answer to Question 8(a), which concerned x-rays made on 31 May 2011 and 22 June 2011 (i.e., prior to the Revision Surgery on 30 August 2011), “Dr Doig noted that, in terms of the x-rays set out in (a), the experts have already noted in answer to a previous question that there was a significant difference.”
However, in relation to the x-rays in Question 8(b) to (d), which included the x-rays most proximate in time before and after the Revision Surgery, being those on 1 August 2011 and 14 October 2011, “Dr Doig observed that each one of those x-rays shows the same thing: that the prosthesis has collapsed into varus and there is rarefaction on the lateral aspect and there’s pedestal formation distally.” Further, “Dr Doig observed that all the other x-rays [which he had seen] do not show a marked difference, except for the longer head after the revision procedure that still show that the stem is there.”
The joint report then recorded:
“Dr O’Sullivan agreed and noted that:
a) he has seen all the x-rays, including those dated 28 July 2016 or 4 August 2017;
b) there has been no real material change in the x-rays;
c) lucency on the lateral margin is apparent;
d) the actual position of the implant has not shifted much and, specifically, it has not shifted since the initial x-rays;
e) the x-rays demonstrate that the plaintiff is starting to lose a lot more bone out into the greater trochanter; and
f) as set out in his report, there has been no stem subsidence other than the initial subsidence, and noting the position of bone on the lateral aspect of the proximal femur, presumably related to third body wear and osteolysis.”
Emphasis added.
That evidence was evidently not directed to determining whether the stem was loose as at the time of the Revision Surgery. But both experts referred to the two indicators of potential looseness shown in the radiological imaging: rarefaction/lucency and movement or shifting in the sense of change of position. Neither expert suggested that there had been any significant change in either respect since 22 June 2011. Dr Doig’s answers concerning the x-rays before and after the surgery were that “each one of those x-rays shows the same thing”, i.e., the same as the 22 June 2011 x-ray; and that they “do not show a marked difference”. That is not evidence of looseness. Dr O’Sullivan’s answers were to similar effect: “there has been no real material change in the x-rays”; “the actual position of the implant … has not shifted since the initial x-rays” (which appears to mean, at the latest, since June 2011); and “there has been no stem subsidence other than the initial subsidence”. As discussed further below in relation to the second dispositive question, in their oral evidence the two orthopaedic experts confirmed that there was “no radiological movement of the stem” after August 2011 until 2017: Tcpt, 20 June 2024, 624.36-7; 624.41.
Question 9 asked whether lucency could be identified in any of a series of x-rays starting on 22 June 2011 and including 1 August 2011, 30 August 2011 and 14 October 2011. The joint answer was that lucency adjacent to the lateral femoral stem could be identified in all of those x-rays. Question 10 then asked, without reference to any particular x-ray, “What is the significance of a finding of lucency adjacent to the lateral femoral stem?” The joint answer was:
“Both experts agreed that the finding of lucency adjacent to the lateral femoral stem means that the prosthesis had pulled away from where it was inserted into the bone.
There is a clear indication that there has been a loosening and on the basis of the x-rays there has been a material shift.”
In light of the earlier answers to Questions 4 and 8, the words “there has been a loosening and … there has been a material shift” appear to be addressing the position since the first of the x-rays provided to the experts, being that of 31 May 2011, rather than any later period.
Finally, Question 14 asked, “Despite Dr Woodgate’s operative findings on 30 August 2011, is there radiological evidence of femoral stem loosening on the x-ray dated 14 October 2011 and the subsequent x-rays dated 8 March 2012 and 14 August 2015?” The joint answer was:
“Both experts agreed that according to the radiological evidence on the x-ray dated 14 October 2011 and the subsequent x-rays dated 8 March 2012 and 14 August 2015 the position of the implant remained largely unchanged. Radiologically the stem was loose, however both Dr Doig and Dr O’Sullivan held the opinion that radiological evidence needs to be correlated to the clinical presentation in any proper assessment to determine the need for revision/intervention.”
It should be noted that that question was not in terms directed to challenging “Dr Woodgate’s operative findings on 30 August 2011” (i.e., that the stem was not loose), but rather asked whether the subsequent x-rays provided evidence of loosening notwithstanding what the respondent had found on 30 August 2011. In light of the form of the question (“is there radiological evidence”), the words, “Radiologically the stem was loose” should be understood as saying that the radiological imaging was consistent with the stem being loose, rather than that the stem was necessarily in fact loose. The relevant “evidence” was, apparently, the “lucency adjacent to the lateral femoral stem” which had appeared in all the x-rays on and after 22 June 2011 referred to in Question 9.
In the result, the orthopaedic experts should not be understood as interpreting the radiological imaging as demonstrating that the stem was in fact loose at the time of the Revision Surgery. To the contrary, it appears from the following exchanges that at least Dr O’Sullivan affirmatively reached the contrary view:
“PERLA: And it’s the case, isn’t it, that you can have initial subsidence after a hip arthroplasty which is not of itself an indication for revision?
WITNESS O’SULLIVAN: If it subsides and then stabilises, that’s certainly described with non-cemented stems.
PERLA: And is that the case, Dr O’Sullivan, that you understand from the material you’ve reviewed, that occurred in relation to this plaintiff between May and August 2011?
WITNESS O’SULLIVAN: Yeah. Yeah, based on what I’ve been provided, I think the stem did subside and shift into a little bit of varus but then stabilised in that position.
PERLA: And, Dr Doig, do you agree with that?
WITNESS DOIG: Well, that was not the – we are – Dr O’Sullivan and I are working from different assumptions about the patient’s symptomatology but, in essence, if the hip had subsided and can it subside into a stable position? Yes, it can.”
Tcpt, 20 June 2024, 623.44-624.13.
“The X-rays show four features, loosening with movement of the stem of the original prosthesis, a fracture of the medial aspect of the neck of the femur, impingement of the tip of the stem on the lateral endosteal surface of the left femoral shaft and significant limb shortening.
…
My opinion having compared the two examinations directly (31/5/11 and 22/6/11) is that there is indeed a fracture and that the stem of the prosthesis has tilted, both features indicating loosening. A/Prof Woodgate’s note of 1/8/11 indicates ‘Implant stabilised’ which suggests he had also recognised the movement of the prosthesis, although when he performed his revision surgery on 30 August 2011, the operation note states ‘stress fracture united, cup not loose, stem not loose’. At this operation he replaced the neck and head of the prosthesis but left the cup and stem in situ. The X-rays however show a 3.5mm gap appearing between the lateral margin of the stem and the adjacent bone in the interval from 31 May 2011 and 22 June 2011 which can only be explained by loosening.”
Emphasis added.
“It is my opinion that the stem was loose at the time of the X-ray dated 22 June 2011. I base this opinion on the 3.5 mm ‘gap’ and the tilting of the stem of the prosthesis visible on the radiographic image.
The gap increased to about 4mm on the X-ray of 14 October 2011 and a peri-prosthetic lucency is visible in the lateral view on the examination of 8 March 2012 when the gap in the AP view had increased to about 4.5mm.
The X-ray of 9 August 2012 shows a 5.5mm gap in the lateral view anteriorly where one was not visible earlier and the gap in the AP view is now 5.2mm with a visible gap in the medial aspect of the stem. By the time of the X-ray of 14 August 2015 the lateral gap in the AP view was 5.5mm and the medial gap was about 2mm.
In my opinion, the loosening was progressive from the original tilting seen in May 2011 and continued after the first revision of the prosthesis.”
Emphasis added.
Professor Thomson expressed opinions in his second and third supplementary reports (both of 4 October 2023), which focused on the position as at June 2011 and which do not advance the matter.
Ground 1 is that the primary judge erred by overlooking or rejecting that evidence, relevantly, with respect to the question whether the device was loose at the time of the Revision Surgery.
As to the assertion that the primary judge erred by overlooking Professor Thomson’s evidence, it is difficult to accept that criticism when the appellant’s case was not put to the primary judge in the way in which it is sought to be articulated on appeal. The focus of what was identified as Issue 2 was not whether the stem was in fact loose, but whether the respondent took reasonable steps during the Revision Surgery to determine whether it was loose. That is consistent with the fact that Professor Thomson’s opinions referred to above were not put to the orthopaedic experts, or to the respondent himself. Nor was Professor Thomson cross-examined. Nor was any particular submission made to the primary judge based on Professor Thomson’s evidence to the effect that the device was loose as at the time of the Revision Surgery. The appellant’s closing submissions as to the radiological evidence (see pars 160-168) did not separately address the position as at the Revision Surgery. The summary submission at par 197(a) of those written submissions that the femoral stem was loose at the time of the Revision Surgery was not connected specifically to the radiological evidence but rather was said to flow from “all of the evidence”.
As to error in rejecting Professor Thomson’s evidence, parts of Professor Thomson’s evidence to which the appellant took the Court might be read as saying that the device was necessarily in fact loose at the time of the Revision Surgery (as opposed to saying that the imaging was some evidence from which to draw that inference). In particular:
“the operation note states ‘… stem not loose’ … [t]he X-rays however show a 3.5mm gap appearing … in the interval from 31 May 2011 and 22 June 2011 which can only be explained by loosening”; and
“the loosening was progressive from the original tilting seen in May 2011 and continued after the first revision of the prosthesis”.
See also, Professor Thomson’s answer to Question 7 in his second supplementary report dated 4 October 2023.
If those parts of Professor Thomson’s evidence are read as stating an opinion, based on the x-rays, that the device was necessarily in fact loose on 30 August 2011, the evidence collides with the following matters, each of which is a sufficient reason for rejecting it:
The implied premise — that in the circumstances of this case, the radiological imaging alone was sufficient to reach a definitive conclusion that the device was loose on 30 August 2011 — is itself mistaken. The appellant accepted that radiological imaging is not necessarily conclusive to establish that a device is in fact loose, and that that inference should not be drawn at least where there is clear evidence to the contrary.
With respect to the position as at 30 August 2011, the appellant has not established that the primary judge erred, either by overlooking or by rejecting the expert evidence of Professor Thomson (or, for that matter, that of Dr Doig or Dr O’Sullivan).
But even if there were such an error (Ground 1), the appellant has not taken the necessary further step of showing error in the primary judge’s implicit finding that, as at 30 August 2011, the device was not loose (Ground 2). The appellant bore the onus. The radiological evidence was not conclusive, and there was ample direct and indirect evidence that the device was not loose. That included the written report of the Revision Surgery, the respondent’s powerful evidence of usual practice, his direct evidence recalling the steps he took during the surgery, and the orthopaedic experts’ evidence that the steps the respondent took were reasonable to determine whether the device was loose. In light of that evidence, which the primary judge accepted, and the common ground that the steps the respondent took would have revealed any looseness, there was no error in his Honour’s implicit finding that the device was not loose on 30 August 2011.
The appellant also put his argument as to Ground 2 in a way that did not depend upon the success of Ground 1. The argument was that if the device was loose before the Revision Surgery (in June 2011), and also loose after the Revision Surgery (in October 2011), the inference should be drawn that it was loose at the time of the Revision Surgery. In that connection, the appellant submitted: “There certainly [was] no evidence adduced by the defendant to suggest that there is an explanation as to how it could be loose before and after, but not on that particular day when they did the operation on 30 August.” Tcpt, 28 October 2025, 25.50-26.2.
The argument should not be accepted.
First, even accepting the premises of the argument (looseness before, looseness after, and no explanation for how that could happen consistently with stability on 30 August 2011), the inference would not be drawn in light of the strong evidence to the contrary about what occurred on 30 August 2011.
Secondly, the premises should not be accepted in any event. As to the period before the Revision Surgery, as discussed above, there was evidence explaining the device’s movement prior to 22 June 2011, consisting of initial subsidence (as was typical with MSA short stem devices) and then the calcar fracture. The orthopaedic experts agreed that it was perfectly possible for the device then to become stable. As to the period after the Revision Surgery, the proposition that the device was loose in October 2011 (as opposed to several years later) is very much contested. The appellant accepted that it was possible for a device to become loose after having been stable for some period of time. Tcpt, 28 October 2025, 26.17-8. It was not suggested that this could not happen in the ordinary course.
“The primary judge erred in finding that the respondent discharged his duty of care to the appellant, when checking the femoral stem for loosening during the revision procedure on 30 August 2011.”
The appellant’s strategy was to attempt to unpick the primary judge’s finding of no negligence (Ground 3) by showing that the stem was in fact loose during the Revision Surgery (Ground 2), which finding was in turn said to follow from the radiological evidence (Ground 1). The appellant argued that if the Court found that the femoral stem was loose during the Revision Surgery, it must follow that the respondent did not adequately test for looseness. Neither the respondent nor the expert orthopaedic surgeons suggested that a surgeon exercising reasonable care could fail to detect that the device was loose if in fact it was.
However, the appellant accepted that the converse was also true: if he failed to show that the device was loose at the time of the Revision Surgery, he could not succeed on his claim based on negligence in conducting the surgery itself. The appellant’s concession was rightly made.
The primary judge’s finding that there was no negligence in the Revision Surgery was based on his acceptance of a substantial body of evidence about what occurred, including as to the steps the respondent said he took to check the stem for loosening. Unless the appellant established that the stem was loose at the time, which would be inconsistent with his Honour’s findings about the steps the respondent took during the surgery, there was no substantial basis upon which to challenge those findings. It was accepted that if the findings as to the steps the respondent took were not disturbed, there was no negligence.
In any event, it is not easy to see how a failure to exercise reasonable care to check whether the femoral stem was loose could cause loss unless the stem was in fact loose.
The appellant has failed to show that the stem was loose at the time of the Revision Surgery (Ground 2). There was accordingly no error in the finding that the respondent discharged his duty of care to the appellant when checking the stem for loosening during the revision procedure on 30 August 2011. Ground 3 is not made out.
This question requires consideration of issues similar to those arising under Grounds 1 and 2 as discussed above, but at a later period in time.
The appellant submitted at the hearing of the appeal that his case that the respondent was negligent in his post‑operative management of the appellant after 30 August 2011 is much harder to establish than his case of negligence in the course of the Revision Surgery. Whether or not that is so is debatable. In any event, this second case faces several difficulties.
First, the appellant’s argument on this aspect of the appeal again substantially depends on Professor Thomson’s interpretation of the radiological imaging. However, (1) radiological imaging alone is insufficient to establish that the stem was loose in the period about which complaint is made; and (2) (depending on how one reads Professor Thomson’s reports) the orthopaedic experts took a different view from Professor Thomson in any event.
Secondly, whatever support the appellant’s argument gains from the radiological evidence, it must overcome the primary judge’s findings as to what the appellant said in consultations with the respondent and the appellant’s clinical presentation more generally. Those findings were largely based on acceptance of the respondent’s evidence (itself informed by his clinical records), and involved unequivocal credit findings adverse to the appellant. The credit findings are not directly challenged.
However, as noted above, the appellant faintly submitted that if the Court found that the stem was loose in the period after August 2011, that might lead to a re-assessment of the credit findings. The suggestion was that if the stem was loose, that would be an objective circumstance which increased the probability that the appellant told the respondent the things he claims to have said about the restrictions on his movement and the extent of the pain he was suffering. The argument was that that would in turn bolster the appellant’s credit. There are at least two difficulties with this argument.
One is that the argument is no answer to so much of the primary judge’s credit findings as was based on the primary judge’s opportunity to observe the appellant and the respondent in the witness box.
The other is the chicken-and-egg problem referred to above. The appellant argues that the credit findings depend, in part at least, on an implied finding that the stem was not loose. Part of the basis for that finding was a series of anterior findings about the appellant’s clinical presentation, which the appellant must overcome in order to establish that the stem was in fact loose. But the findings about clinical presentation were in part based on his Honour’s credit findings, which is the very thing the appellant seeks to overturn.
Thirdly, even if there was some loosening in the femoral stem in that period, in light of the primary judge’s findings about the appellant’s clinical presentation, it would not necessarily follow that there was negligence in failing to detect the loosening and/or to advise that further revision surgery was necessary. That is the subject of Ground 5.
The primary judge’s reasoning on this issue at J[145] and [151]-[153] is set out above.
As to J[145], the appellant submits that his Honour misunderstood the effect of the orthopaedic experts’ evidence when he said that it could not be reconciled with that of the radiological expert Professor Thomson. In particular, the appellant disputes that the effect of the orthopaedic experts’ evidence was “that there was no radiological movement of the stem after August 2011 until 2017”: Tcpt, 28 October 2025, 17.49-50. The appellant does so by extracting various statements in the joint report from the context of the question which the experts were asked. This has the effect of blurring the distinction between the period before the Revision Surgery and the period after it.
For example, the appellant submits at subpar 18(c):
“Both experts agreed that the numerous x-rays taken from 22 June 2011 until 4 August 2017 demonstrated lucency adjacent to the lateral femoral stem; and that this finding means that there has been a loosening”.
But the passage of the joint report cited for this proposition (responses to Questions 9 and 10) does not distinguish between the periods before and after the Revision Surgery. In particular, the answers to those questions do not say when the “loosening” occurred.
By contrast, when answering Question 8 in the joint report, Dr Doig distinguished between:
“the x-rays set out in (a)” (being the x-rays performed on 31 May and 22 June 2011), about which he said, “the experts have already noted in answer to a previous question that there was a significant difference”; and
the subsequent x-rays, of which he said “each one of those x-rays shows the same thing: that the prosthesis has collapsed into varus and there is rarefaction on the lateral aspect and there’s pedestal formation distally”, and “all the other x-rays do not show a marked difference, except for the longer head after the revision procedure that still show that the stem is there.”
(It should be noted that, to the extent that the appellant seeks to rely at subpar 18(h) on opinions expressed by Dr Doig before the joint report, on the basis that he did not depart from his earlier opinions and was not challenged on them in the course of the concurrent oral evidence, the submission should be rejected. The purpose of a joint report is to record the experts’ mature opinions having the benefit of each other’s views in the course of a conclave. To the extent that there is a material difference between an expert’s opinions stated in an earlier report and the same expert’s opinions in a joint report, the parties and the court are generally entitled to proceed on the basis that the earlier opinions are superseded. However, there is no material difference in this case in any event.)
Dr O’Sullivan’s answers to the same question were similar: that “there has been no real material change in the x-rays” and “the actual position of the implant has not shifted much and, specifically, it has not shifted since the initial x-rays” (which was clearly a reference to the x-rays of 31 May and 22 June 2011).
The appellant also submits at subpars 18(f) and (g):
“(f) Both experts agreed that according to the x-rays dated 14 October 2011, 8 March 2012 and 14 August 2015, ‘radiologically the stem was loose’: Blue 1:140U.
(g) Both experts noted however that the radiological evidence needs to be correlated to the clinical presentation in any proper assessment as to the need for revision/intervention. In other words, clinical presentation does not detract from the existence of stem looseness. Clinical presentation might however diminish the need to intervene. This is made clear at Blue 1:143R.”
Bold and underlining in original.
Q14: “Despite Dr Woodgate’s operative findings on 30 August 2011, is there radiological evidence of femoral stem loosening on the x-ray dated 14 October 2011 and the subsequent x-rays dated 8 March 2012 and 14 August 2015?”
Response to Q14:
“Both experts agreed that according to the radiological evidence on the x-ray dated 14 October 2011 and the subsequent x-rays dated 8 March 2012 on 14 August 2015 the position of the implant remained largely unchanged. Radiologically the stem was loose, however both Dr Doig and Dr O’Sullivan held the opinion that radiological evidence needs to be correlated to the clinical presentation in any proper assessment to determine the need for revision/intervention.”
Q19: “Should a competent orthopaedic surgeon have detected loosening of the femoral stem by reference to radiological imaging and the clinical presentation of the plaintiff after the revision procedure performed in August 2011 and at each consultation thereafter from October 2011 until 2017?”
Response to Q19:
“The experts agreed on the findings to be drawn from the various x-ray films and refer to their discussion above in previous questions regarding this.
Again, in relation to the clinical presentation, this depends on the assumptions informing the opinion.
Based on the assumptions Dr O’Sullivan was provided, both experts agreed that there was no clinical suspicion of loosening because the plaintiff was functioning very well and therefore a ‘watch and wait’ approach was deemed appropriate.
Based on the assumptions provided to Dr Doig, there is considerable evidence that the implant was loose, indicating that a revision was likely necessary.
…”
As to the appellant’s submission at subpar 18(f) that “Both experts agreed that … ‘radiologically the stem was loose’”, this omits the important point in the first sentence of the answer to Question 14: that the position of the implant remained largely unchanged. More importantly, the statement, “r**adiologically the stem was loose,” must be understood as a shorthand way of stating, consistently with the language of the question, that there was “radiological evidence of femoral stem loosening”. That is very different from stating an opinion that the device was in fact loose.
As to the appellant’s submission at subpar 18(g), what was “made clear at Blue 1:143R” (i.e., the answer to Question 19) was not that the “clinical presentation does not detract from the existence of stem looseness.” To the contrary, the point made in the answer to Question 19 was that the radiological imaging alone was not enough to reach a conclusion about “the existence of stem looseness”. Instead, whether to reach that conclusion would depend on the clinical presentation. On the set of assumptions as to the appellant’s clinical presentation after the Revision Surgery given to Dr O’Sullivan (which were substantially in accordance with the findings made by his Honour), both orthopaedic experts agreed that there was “no clinical suspicion of loosening”. That conclusion did not merely “detract” from any radiological evidence that the stem might be loose; it contradicted “the existence of stem looseness”.
The existence of lucency on the imaging was thus a reason to “watch and wait”. As the experts said in their answer to Question 13:
“Both experts held the opinion that radiological findings alone do not constitute a need to act. Radiological findings need to be assessed and correlated to clinical findings. If the patient seems to be functioning well, there is only a need to monitor any abnormalities (for example an abnormal radiological finding).”
“PERLA: Just so his Honour understands, there is agreement between the two of you, in relation to the X-rays you’ve reviewed, and in particular the x-rays after August 2011, that there was no movement of the stem, correct?
WITNESS DOIG: There was no radiological movement of the stem after August 2011 until - until the subsequent 2017.
PERLA: Yes, thank you. And, Dr O’Sullivan, do you agree with that?
WITNESS O’SULLIVAN: I agree, yes.”
Tcpt, 20 June 2024, 624.32-41; emphasis added.
That is the evidence to which the primary judge referred at J[145] and [151]. The appellant attempts to explain away that evidence by submitting that “here they appear to have been drawing a distinction between the situation after August 2011 and the considerable movement that had occurred between May and June 2011.” That was precisely the distinction being drawn in the orthopaedic experts’ joint report and in their oral evidence: that “the situation after August 2011” was one in which the radiological evidence showed there had been no movement of the stem.
The appellant submits that the experts were not taken to, and did not address, the part of the report of Professor Thomson quoted at [71] above.
The first point to be made is that, if, as the appellant submits, Professor Thomson’s evidence is to be treated as evidence that the stem was in fact loose, then, contrary to the appellant’s submission, that evidence cannot be reconciled with the evidence of the orthopaedic experts referred to above. That was the primary judge’s point at J[145].
But it is again not necessary to read Professor Thomson’s evidence in that way. His evidence should instead be read as stating no more than that the radiological evidence was consistent with the device’s being loose. However emphatically it may have been expressed, Professor Thomson’s evidence is subject to the same limitations inherent in other evidence interpreting radiological imaging. His opinion that there had been a “progressive” “loosening” was based on the existence and gradual expansion of a “gap”, that is, a lucency on the image. Professor Thomson’s measurements concerned the size of the lucency. As noted above, lucency suggests a loss of bone in the particular area. It does not necessarily mean that the device has in fact become loose.
Dr O’Sullivan explained the significance of lucency in his oral evidence as follows:
“WITNESS O’SULLIVAN: Yeah. It just means that there’s the - you know, there’s not the normal bone stock present.
O’KEEFE: I see. And can that be consistent in a symptomatic patient with loosening?
WITNESS O’SULLIVAN: It depends on the - the extent of the lucency, and whether the lucency is circumferential, or only over, you know, a limited part of the prosthesis. So, it depends on the - the width of the - the - what they call radiolucent lines. It is thought that greater than 2 centimetres is - is of a concern if it’s contiguous, and sort of goes right around the prosthesis. But isolated lucencies can be present in the presence of a stable stem.
O’KEEFE: Right. But my question was more directed to the fact that, in a symptomatic patient, that is a patient that’s complaining of pain in the inner and outer thigh on the leg in which a hip replacement has been performed, in such a patient could lucency be consistent with, that is lucency adjacent to a femoral stem, be consistent with loosening?
WITNESS O’SULLIVAN: Yeah, if the clinical picture suggested that, yes.”
Tcpt, 20 June 2024, 618.11-30.
That answer made clear that the question whether there was in fact “loosening” could not be determined (at least in this case) on the imaging alone, but depended on the “clinical picture”.
If Professor Thomson’s evidence is read as evidence of lucency consistent with potential loosening, a finding that the stem had not in fact become loose does not logically require that Professor Thomson’s evidence be rejected. Instead, the decisive question becomes the clinical picture.
The primary judge nevertheless preferred the evidence of the orthopaedic surgeons to that of Professor Thomson at J[150]-[153]. The appellant challenges the basis upon which the primary judge did so. Although, for the reason just given, it is not ultimately necessary to address that issue, it suffices to say that the challenge does not succeed. Contrary to the appellant’s submission at par 26, his Honour did not conflate the question whether the stem was in fact loose with the question whether the respondent ought to have detected looseness. The section of the judgment in which the relevant passages appear was not principally directed to the former issue. Instead, it was concerned with an allegation of negligence — in particular, as his Honour said at J[139], the appellant’s submission “that the defendant failed to interpret radiological evidence of progressive loosening of the femoral stem in consultations as early as 14 October 2011 and until August 2017.” It was for that reason wholly understandable that his Honour referred to the degree of care and skill required of a reasonable orthopaedic surgeon (at J[152]) as opposed to that of a specialist radiologist (at J[153]).
To the extent that Ground 1 asserts that the primary judge erred in overlooking or rejecting radiological expert evidence as to loosening or movement in the appellant’s femoral stem in the period after the Revision Surgery until 2017, the ground is not made out.
The determinative issue as to whether the stem was loose in the period after the Revision Surgery until 2017 is thus the evidence concerning the appellant’s clinical presentation. The joint report made clear at many points that this was the critical issue.
A focus at trial and in the primary judge’s reasons was the extent to which the appellant had been able to play squash and other sports after the Revision Surgery, and what that signified as to whether or not the device was loose.
The latter question was a matter for the orthopaedic experts. The primary judge found at J[123]:
“It is also well to note that the joint orthopaedic opinion was that a patient with a definitely loose stem would not be able to play squash. Dr Doig added that, in his opinion, such a patient would only be able to hit a squash ball around a court, without running, jumping, pivoting or twisting. The joint expert opinion was also that rock climbing would only be possible at a very limited level with a definitely loose stem.”
Those findings were amply supported by the oral evidence of the two orthopaedic experts in which they largely agreed with each other: see at Tcpt, 20 June 2024, 625.23-39; 627.16-48; 628.38-629.14. For example, both experts said that playing squash for 1.5 hours on a weekly basis would be inconsistent with a definitely loose stem: Tcpt, 630.23-35.
The appellant criticises the findings at J[123] as an inaccurate summary of the orthopaedic surgeons’ evidence. He submits that they gave evidence that whether the appellant’s activities were inconsistent with the stem being “clinically” loose depended on a precise assessment of what movements the appellant could perform with his left hip and leg, how often, for how long, with how much pain and with how much pain tolerance bolstered by pain medication. That submission should not be accepted. Two passages of transcript, totalling nine whole pages, are cited in support of it. The particular aspects of that evidence which the appellant identifies as suggesting that he might have been able to undertake limited sporting activities notwithstanding a loose femoral stem do not go far. Those submissions ultimately failed to confront the clear evidence given by the orthopaedic experts in the passages referred to above.
As to the extent to which the appellant had been able to play squash and other sports, there was a major conflict between the appellant’s evidence and the respondent’s clinical records. The appellant downplayed the extent to which he had participated in squash. For example, he said that he did not play singles at any time after 2012: J[118]; Tcpt, 19 February 2024, 83.42-3. More significantly, the appellant denied that he had played squash for the durations recorded in the clinical records.
The primary judge undertook a detailed review at J[117]-[136] comparing the appellant’s evidence with the contemporaneous records (including those of a third party physiotherapist at Take Control Active Rehab); see also at J[111]-[113] as to credit. His Honour resolved the conflict in this evidence adversely to the appellant at J[136]: “I conclude that the defendant, on each occasion of a consultation after the Revision Surgery, took a history from the plaintiff of his level of function and activity. I conclude that this history is accurately reflected in the defendant’s medical notes.”
His Honour thus found that, contrary to the appellant’s evidence, the appellant told the respondent in consultations:
on 8 March 2012 that he was playing squash at least once per week for up to 3 hours: J[120];
later in 2012, that he had been able to play squash for four hours in the preceding Saturday, including playing singles: J[121];
on 17 January 2014 that he had been playing squash for four hours: J[125]-[126];
on 25 August 2014 that he had played six games, singles and doubles, including “2 hours on court”: J[127];
The third dispositive question is whether, in the period after the Revision Surgery until 2017, an orthopaedic surgeon exercising reasonable care would have detected or investigated whether the stem was loose and recommended further revision surgery (Ground 5).
As explained above, the appellant accepted that if he failed on the second dispositive question, his claim in relation to the respondent’s ongoing management of his hip must fail.
This question thus does not strictly arise. However, the respondent submits that even if Ground 2 had succeeded, it would not follow that Ground 5 was made out. That is to say, even if the stem was in fact loose in the period after the Revision Surgery until 2017, it would not automatically follow that the respondent was necessarily in breach of his duty of care.
The steps in the appellant’s argument are as follows.
If the Court were satisfied that the stem was loose after the Revision Surgery, “the primary judge’s findings as to the appellant’s function and activity during the period 30 August 2011 to 29 March 2019 cannot stand”.
Without precise findings as to the appellant’s function and activity during that period, “it was impossible for the primary judge to determine (under the standard in s 5O) in respect of each consultation during that time the adequacy of” (i) the respondent’s clinical notes, (ii) his assessment of the appellant’s presentation, and (iii) “his repeated decision not to carry out further revision surgery”.
“Accordingly, if the appellant succeeded on appeal grounds 1 and 2, the finding at J[138] — that the respondent did not breach [h]is duty of care in the appellant’s management from 30 August 2011 to 28 March 2019 — must be set aside.” The appellant sought a remitter of at least the question of damages.
The difficulty with this argument is that the appellant needs to upset not only the finding that the stem was not loose, but also the findings as to what the appellant said in consultations with the respondent. As the primary judge found at J[137], if the appellant had in fact been experiencing the lack of functionality that he claimed in his evidence, “he was conveying the opposite impression” to the respondent. For the purposes of determining whether the respondent exercised reasonable care, he was entitled to act on what the appellant was telling him about the extent of his functionality.
There is no challenge of substance to the primary judge’s findings about what the respondent told the appellant. Those findings were based in part on matters of credit, which were themselves informed by the primary judge’s advantage in observing the witnesses. Whatever evidence was given by Mr Hennock or Mr Rossi, that evidence went only to whether the stem was in fact loose. It would be a large further inference from a finding that the stem was in fact loose to find that the clinical records were inaccurate in recording what the appellant told the respondent in consultations.
“It is noted by the experts that these assumptions are different to that provided to Dr Doig for preparation of his original report.
If the experts were to accept the assumptions set out in the question, being related to the plaintiff’s being able and having squash on various regular bases, the experts agreed that this would indicate that, clinically, the plaintiff was functioning fine.
The experts acknowledged that the differing assumptions provided to each of them regarding the plaintiff’s physical activity and capability were significant factors in the formation of the opinions provided in their respective reports.”
The respondent’s assumptions to which the experts referred substantially accord with what the primary judge found the appellant told the respondent in clinical consultations. A surgeon exercising reasonable care was entitled to act on that basis.
It follows from the opinions stated in the joint expert report that the respondent was entitled to conclude that, clinically, the appellant “was functioning fine”. That being so, it is difficult to see on what basis it could be said that the respondent was negligent in failing to recommend further revision surgery.
If it had been necessary to address Ground 5, it would not have been made out.
The appeal should be dismissed with costs.
FREE JA: I agree with McHugh JA.
**********
Coversheet - corrected medium neutral citation of decision under appeal.
Taylor
Woodgate [2025] NSWCA 270
Appeal dismissed with costs. Grounds 1, 2 and 3 were not made out as to the revision surgery; Grounds 1 and 2 were not made out as to the period after surgery until 2017. Ground 5 was also considered in the alternative and would not have been made out. Grounds 4 and 6, concerning causation, were not determined ([83], [87], [115], [134], [144]-[146]).
In relation to the appellant’s submission that the respondent failed to interpret radiological evidence of progressive loosening of the femoral stem between 14 October 2011 and August 2017, the primary judge referred to the evidence of the orthopaedic experts, in particular Dr Doig, that while radiological images are an important diagnostic tool, they are of less diagnostic importance than clinical examination and exploration of the patient’s history and functionality.
The appellant also relied on a report given by a radiological expert, Professor Thomson. In a passage of the judgment that is of some significance on the appeal, the primary judge said at J[145] that “the evidence of the radiological expert relied on by the plaintiff in relation to this issue cannot be reconciled with the evidence of the orthopaedic experts, who agreed that there was no radiological movement of the stem after August 2011 until 2017.” At J[151]-[153] his Honour preferred the joint opinion of the orthopaedic experts to that of Professor Thomson:
To the contrary, the joint expert report contained the following statements in answer to Question 7, which asked what steps a competent orthopaedic surgeon should have taken during the Revision Surgery to be satisfied that the stem was not loose:
Thirdly, it is difficult to see how even if Ground 1 succeeded, any failure on the part of the primary judge properly to consider the radiological evidence could result in success on Ground 2, in light of the following matters.
The accepted limitations of the radiological imaging; in particular, that it was not conclusive of whether the device was loose at the time of the Revision Surgery.
The primary judge’s emphatic acceptance of the respondent’s evidence that the device had not been loose at the time of the Revision Surgery, and of his evidence about the steps he took in the Revision Surgery to determine whether that was so.
His Honour’s largely unchallenged reasons for accepting that evidence, including the respondent’s evidence of a highly developed practice in performing revision surgeries and the statement in the surgical report “stem not loose”.
The orthopaedic experts’ agreement that the steps taken were reasonable to assess whether the device was loose.
The parties’ agreement that if taken, those steps would have revealed that the stem was loose if in fact it was.
Fourthly, the appellant accepted that orthopaedic surgeons have expertise in interpreting radiological imaging which is equal to that of a specialist radiologist. That being so, the opinions of the two expert orthopaedic surgeons about the imaging were no less significant than the opinion of Professor Thomson.
Fifthly, when addressing the Revision Surgery, the primary judge referred neither to the evidence of Professor Thomson, nor to that of the orthopaedic surgeons, about the imaging. Nor did his Honour make an express finding addressing whether the stem was loose (although a finding that it was not loose is implicit in his other findings).
That his Honour did not refer to the radiological imaging when addressing the Revision Surgery may be explicable because of the way in which the agreed issues had been framed. The primary judge’s consideration of the Revision Surgery took place under the heading, “Issue 2 — Steps Taken During the Revision Surgery to Identify and Eliminate Loosening”. The primary judge explained that issue at J[62]:
There was very clear evidence to the contrary here about what occurred during the Revision Surgery itself, given by the respondent, and accepted by the primary judge. Professor Thomson’s evidence did not address that evidence; he said “I am not qualified to comment on the operative method Dr Woodgate applied to convince himself that the femoral stem [of] the prosthesis was not loose.”
Even as to what was to be drawn from the imaging itself, the evidence of the orthopaedic experts does not support Professor Thomson’s conclusion, and (at least) that of Dr O’Sullivan contradicts it. Nor did Professor Thomson’s evidence address the respondent’s evidence referred to above that “[a]n implant can be stable with just a spot weld”. It is apparent from the context (“but it is much more pleasing to see bone growing on all four surfaces of the implant”) that a “spot weld” here means bone growing on one surface of the device, even if there is a gap around other surfaces. A “spot weld” might not be apparent on an x-ray, which, as the respondent pointed out in the same answer, “is a two-dimensional representation of a three-dimensional structure so you have to look at multiple imaging studies to see if bone is growing in all surfaces.”
If, on the other hand, Professor Thomson’s reports are read as stating no more than that the imaging was evidence that the device was loose, that is consistent not only with the evidence of the orthopaedic surgeons, but also with the primary judge’s approach to the issue. That is, that an orthopaedic surgeon exercising reasonable care would take reasonable steps during the surgery to verify whether the device was in fact loose, and that the respondent had done so. That process of reasoning does not involve rejecting Professor Thomson’s evidence, but rather acknowledges its limitations.
Insofar as they concern the position as at 30 August 2011, Grounds 1 and 2 are not made out.
on 2 October 2014 that he had played squash for three hours;
on 10 April 2015 that he was “playing squash”: J[129];
on 14 August 2015 that he was still playing squash “3hr 1x/wk”: J[130];
on 17 August 2016 that he was playing squash “1x/wk – 3 hrs”: J[132];
on 30 August 2017 that he was playing “Squash 1x/wk”: J[133].
It should also be noted that the primary judge rejected the appellant’s evidence that he had told the respondent that he was “in agony” or “in constant pain” at various consultations in this period, including on 20 January 2015, 10 April 2015 and 20 August 2017: J[99]-[100]; [126]; [133]. Instead, his Honour preferred the much less clinically concerning account recorded in the clinical records, such as the entry for 20 January 2015 to the effect that the appellant was still experiencing a left groin ache, and the entry for 10 April 2015 to the effect that the appellant was experiencing a “few pulling feelings in groin” daily, which were “variable in severity”.
The appellant’s challenge to the primary judge’s findings about the activities the appellant had been undertaking or the pain that he had been experiencing in doing so is not strong.
First, the appellant submits that the respondent’s clinical notes make only occasional references to the appellant’s playing squash and undertaking other activities, and that those brief references fall well short of the detail necessary to enable the assessment which the appellant submits the orthopaedic surgeons said they require to determine if the stem was “clinically” loose. The premise of this argument (that the orthopaedic surgeons’ evidence was to the effect that more detail was required) has been rejected above.
Secondly, the appellant attempts to find ambiguity in the clinical records about his squash playing when in reality there is none. The primary judge did not accept the appellant’s explanation that the durations recorded referred to how long the appellant had been at the squash courts, as opposed to the time he had actually been playing: J[131]. His Honour’s approach to the clinical records in this respect was clearly justified in light of the clinical significance of the squash-playing (what mattered was the period of activity, not the time spent waiting around) and his Honour’s credit findings adverse to the appellant.
Thirdly, the appellant criticises the primary judge for failing to refer expressly to what is described as the corroborative evidence of the appellant’s squash partner Mr Hennock, and that of his massage therapist Mr Rossi. That evidence does not go as far as the appellant needs it to.
For example, Mr Hennock gave evidence that the appellant had been able to run while playing squash, although with a limp: Tcpt, 21 February 2024, 239.8-13. That is difficult to reconcile with Dr Doig’s evidence at Tcpt, 627.44-48 as to what might be possible with a loose stem: “So, if you’re just hitting a squash ball around a court, and you’re not running, jumping, pivoting and twisting, then you may be able to do it, particularly if you really love the sport, and you’re willing to put up with the discomfort. If you are playing at A grade level, I don’t think there’s any chance of doing that with a definitely loose femoral stem.” It also does not follow from whatever Mr Hennock may have observed at the times he played squash with the appellant that the appellant did not tell the respondent what is recorded in the clinical records.
As to Mr Rossi, his evidence was largely directed to the appellant’s level of pain at the times Mr Rossi was treating him, not to how many hours he was spending on the squash court. Even then, in light of the orthopaedic expert evidence, Mr Rossi’s evidence was inconsistent with the device’s being loose: “he then went to play squash and his report was that he played a good game, that he was pain-free at the end of it, but that the pain had come back throughout the week”: Tcpt, 22 February 2024, 250.7-9.
In any event, to the extent that there is any inconsistency between the evidence of those two witnesses and the contemporaneous clinical records, his Honour should be taken to have preferred those records as he was entitled to do.
The challenge to the primary findings of fact about the appellant’s clinical presentation (in particular, about the amount of time the appellant spent playing squash and the level of discomfort he experienced) is not made out.
As noted above, given the limitations of the radiological evidence, the appellant’s clinical presentation is central to determining whether the stem was loose. When the primary findings as to the clinical presentation are seen in light of the orthopaedic experts’ evidence referred to above, the appellant cannot discharge his onus of establishing on the balance of probabilities that the device was loose. To the contrary, the clear inference to be drawn is that it was not.
To the extent that Ground 2 challenges the primary judge’s finding that there was no loosening or movement in the appellant’s femoral stem in the period after the Revision Surgery until 2017, the ground is thus not made out.
Question 16 in the joint report asked the orthopaedic experts to assume the appellant had reported in various consultations between 2014 and 2017 that he was playing squash for durations including of up to 3 hours per week. As to the significance of such reports, the joint answer was: