Taylor v Woodgate

Category: Principal judgment

Parties: Stephen Taylor (Plaintiff)
Ian Woodgate (Defendant)

Representation: Counsel:
Mr R O’Keefe SC and Ms K Young (Plaintiff)
Mr R Perla (Defendant)
Solicitors:
Slater and Gordon Lawyers (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2022/00199783

Publication restriction: None

JUDGMENT

Introduction

1. These are proceedings in medical negligence.

2. The plaintiff is a gentleman aged 43. He has had a history of hip problems since childhood. In or about 1983, when he was only 14 years old, he was diagnosed with a slipped upper femoral epiphysis. In 1984, he underwent surgery by an orthopaedic surgeon (not the defendant) to respond to that condition. The surgeon inserted three Knowles pins in the plaintiff’s left proximal femur. Two of those pins were removed some two months later.

3. The plaintiff first attended on the defendant on 24 August 2010. He was complaining of left hip pain. On 15 October 2010, the defendant operated upon the plaintiff at St Vincent's Hospital to remove the remaining Knowles pin from his left hip, with femoral corticectomy and insertion of bone graft with Actifuse putty. Thereafter, the plaintiff consulted with the defendant on a number of occasions, including on 2 December 2010 when they discussed the possibility of him undergoing a total hip replacement.

4. On 10 May 2011, the plaintiff underwent total left hip replacement surgery, which was performed by the defendant at St Vincent’s Private Hospital. The following prostheses were utilised:

5. 56mm Icon acetabular cup made form CoCrMo alloy.

6. MSA Size 22mm/8 degree neck made from CoCrMo alloy.

7. 50mm minus 4mm Icon head made from CoCrMo alloy.

8. MSA Size 2 femoral stem made from titanium alloy.

9. On 30 August 2011, the plaintiff underwent a revision of the left total hip replacement (the “Revision Surgery”). The Revision Surgery was also performed by the defendant at St Vincent's Hospital.

10. The plaintiff consulted the defendant on many occasions thereafter and there is a substantial dispute about what the defendant was told on these occasions, an issue to which I shall return. The plaintiff's case, broadly, is that during this period he complained constantly to the defendant telling him that he was in constant pain and walking with a pronounced limp. Indeed, the plaintiff alleges that he told the defendant in this period that at times he was in “agony”. As I have indicated, this is a matter of dispute between the parties.

11. On 28 March 2019, the plaintiff consulted with the defendant who advised the plaintiff that there had been loosening of the left hip prosthesis and that, in his view, the plaintiff required a further revision of the left hip replacement. The plaintiff thereafter attended on another orthopaedic surgeon, Dr Neil, who also recommended revision surgery. This surgery by Dr Neil was performed on 27 April 2019.

The Defendant

8. The defendant is an experienced orthopaedic surgeon. He graduated in medicine from the University of New South Wales in 1985. After a period as an intern and resident at various Sydney hospitals, he commenced training as an orthopaedic specialist. This training ultimately involved him in moving to Toronto in Canada to train there with a leading orthopaedic surgeon, who specialised in complex knee and hip surgery, especially revision surgery. The defendant’s training in Toronto concluded, whereupon in late 1992 he returned to Sydney and commenced practice as an orthopaedic surgeon. He has held an appointment at St Vincent's Hospital, and currently holds an appointment as an Associate Professor at the University of Wollongong.

The Proceedings

9. The plaintiff sues the defendant in negligence. As such, the proceedings fall to be determined by reference to common law principles, as modified by the Civil Liability Act 2002 (NSW) (“CLA”). The parties were agreed that when considering the plaintiff’s allegations of failure to warn of material risks, the Court is not required to consider s 5O CLA. This is so as s 5P applies. The parties were also agreed that the determination of what advice the defendant ought to have given on any particular occasion is one for the Court and not the expert witnesses. That said, it is also the case that expert opinion may be of assistance in that task.

The CLA Principles

10. It may be helpful to set out some basic principles in relation to the operation of the CLA in respect of cases of this type. This task can be attended to in a brief manner, as there was no dispute between the parties as to these principles.

11. While not relevant to allegations of failure to warn, s 5O(1) CLA is, however, relevant to the other categories of alleged breach in the proceedings.

12. In Dean v Pope [2022] NSWCA 260; (2022) 110 NSWLR 398, the Court of Appeal held that ‘professional practice’ in s 5O CLA refers to the manner in which professionals practise their profession, not to a particular practice, protocol, procedure or process. With respect to the conduct of surgery and post-operative care, the expert orthopaedic surgeons called by the respective parties have identified what constituted competent professional practice during the relevant periods. Accordingly, the plaintiff submitted that the determination of breach of duty with respect to alleged deficient surgical technique and alleged failure to follow up depends upon the findings of fact concerning:

13. The steps the defendant took or failed to take during the revision procedure;

14. The symptoms the plaintiff experienced following the revision procedure;

15. The information the plaintiff conveyed to the defendant regarding post-operative symptoms;

16. The type of examinations the defendant conducted of the plaintiff following the revision procedure;

17. The defendant’s interpretation of X-ray and MRI images following the revision procedure.

18. I did not understand the defendant to put these matters in issue.

Causation

14. The plaintiff must establish causation by reference to the principles set forth in ss 5D and 5E CLA. In proceedings relating to liability for negligence, the plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. The plaintiff is required to show, on the balance of probabilities, that the breach by the defendant caused the injury pleaded. This is essentially a question of fact (March v E&MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506). The determination of factual causation pursuant to s 5D(1)(a) CLA is, in reality, a statutory statement of the ‘but for’ test of causation, and factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm (Strong v Woolworths Ltd trading as Big W [2012] HCA 5; (2012) 246 CLR 182).

15. Causation is a retrospective factual inquiry by the court (Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [124]). That inquiry requires the Court to consider the probable cause of events had the breach of duty not occurred.

16. In Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537, Kiefel J observed at [111] that:

All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that the defendant's negligence caused the injury or harm. More probable means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.

17. Factual causation may be established by a process of inferential reasoning from circumstantial evidence. A finding of causal connection may be open absent supportive expert evidence, or even where the expert evidence proves no more than that a causal connection is possible. The evidence will be sufficient if, but only if, the evidence justifies an inference of probable, as opposed to possible, connection (Schneider v Hoechst Schering Agremo Pty Ltd [2001] FCA 102; (2001) 50 IPR 555 (per Spender, Hill and Hely JJ)).

The Orthopaedic Experts Conclave

18. The parties each qualified an orthopaedic expert witness; namely, Dr Doig, called by the plaintiff, and Dr O’Sullivan, called by the defendant. These experts provided reports and ultimately attended a conclave. This led to them producing a joint report. They then gave evidence concurrently. The orthopaedic joint report is of significant importance in the matter, as it emerges from that report that the experts were in substantial agreement in relation to the issues upon which they were asked to opine.

19. The parties were agreed that the matters upon which the expert orthopaedic specialists agreed in their final 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.

The Plaintiff’s Case

20. The plaintiff’s case, in summary, was put in his final written outline of submissions, in the following fashion.

21. The plaintiff alleged deficiencies amounting to negligence with respect to:

22. the defendant’s pre­operative advice provided between August 2010 and May 2011; and

23. the defendant’s surgical technique during the Revision Surgery performed on 30 August 2011; and

24. subsequent post-operative management by the defendant between September 2011 and 28 March 2019.

25. The plaintiff alleges that, had the defendant heeded his stated pre-operative concerns to minimise the risks of complications, in particular the risk of a short implant lifespan, and conveyed adequate information to the plaintiff about the novel and untested, metal-on-metal, short-stem prosthesis which he recommended, the plaintiff would not have undergone the total hip replacement on 10 May 2011. On the contrary, the plaintiff submitted he would have achieved a satisfactory result from surgery performed on a later date using a different implant with a longer, conventional femoral stem.

26. Further, the plaintiff alleged that it may be inferred from the evidence that on the occasion of the Revision Surgery on 30 August 2011, the defendant 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. This, he alleges, would have led to the replacement of the femoral stem using a conventional femoral stem which, in turn, would have resulted in the plaintiff achieving a satisfactory result from that revision.

27. The plaintiff also alleged that the femoral stem continued to be loose and that he had leg length inequality, with his left leg being shorter than his right. He says that his evidence about his ongoing symptoms and complaints to the defendant as to these matters after the replacement and Revision surgeries should be preferred to the defendant’s evidence on those topics.

28. Accordingly, he submits that the Court ought find that he experienced chronic pain, restricted movement, and a loose femoral stem and/or significant leg length discrepancy from 2012 to 2019. The plaintiff says, in effect, that his complaints as to these matters were downplayed or ignored by the defendant. The plaintiff says that the defendant failed to investigate his complaints either adequately or at all.

29. Finally, the plaintiff alleged that the defendant 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. He also alleged that the defendant incorrectly interpreted MRI imaging from March 2013 and failed to synthesise this data with the plaintiff's reports to him of ongoing symptoms and, as a consequence, the defendant failed to arrange a second revision procedure to replace the femoral stem.

30. On the final day of submissions, the plaintiff sought leave to amend his particulars of negligence. He did so as he wished to allege that the defendant was negligent in misinterpreting an MRI scan in February 2013 as positively excluding the presence of stem loosening. This misinterpretation of the MRI scan, the plaintiff says, led to his failure to reconsider femoral stem loosening as a potential cause of the plaintiff's ongoing symptoms after that date.

31. I allowed this amendment, as it was not opposed.

32. The parties were agreed that the issues requiring determination by the Court could be reduced to five issues. In these circumstances, I shall adopt the same five issues approach as suggested by the parties in the resolution of the matter.

Issue 1 – Alleged Failure to Advise and/or Warn During the Initial Pre-Operative Period

30. The plaintiff submits that, had the defendant heeded his stated pre-operative concerns:

31. to minimise the risks of complications, in particular the risk of a short implant lifespan; and

32. conveyed adequate information about the novel and untested metal-on-metal short stem prosthesis which he recommended,

the plaintiff would not have undergone the hip replacement surgery on 10 May 2011. The plaintiff says that but for the defendant’s failure to warn, he would have achieved a satisfactory result from surgery performed on a later date using a different implant with a longer stem (the “First Issue”).

31. The plaintiff’s pleading in paragraph [6] of his Amended Statement of Claim isolates the question of novelty to the short stem aspect of the femoral prosthetic. This prosthesis, the plaintiff asserts, when compared with “conventional femoral stem prosthetics, was associated with a higher risk of aseptic loosening and/or had its’ [sic], efficacy was unknown due to limited studies”. The plaintiff also pleaded that the short stem and the metal-on-metal articulation had “been reported in reputable medical literature as being associated with biocompatibility issues related to wear and corrosion and metallosis”.

32. At the end of the day, however, I did not understand the plaintiff to run a case based on metal-on-metal articulation. That issue can therefore be put to one side.

33. The plaintiff’s evidence was that he was willing to postpone or cancel the surgery if it had been explained to him that there was a risk of short-term failure associated with the short stem prosthetic. A particular difficulty with this aspect of the plaintiff’s case is that there was no evidence that as at August 2010 the MSA mini stem was either known to have a risk of short-term failure, or that it was associated with a higher risk of aseptic loosening when compared to other prosthetics.

34. To the contrary, the evidence established that the MSA mini stem had been approved by the Therapeutic Goods Administration (T 338.16-33) and that the defendant had inserted the first five implants in Australia commencing in 2007, and none had failed (T 338.38-50; T 339.1-6). It should be noted, however, that one implant had to be removed as a result of a fall (T 541.26-34).

35. The defendant was cross-examined about the novelty of the exchangeable neck part of the MSA mini stem. But, it was not put to him that the MSA mini stem was associated with a higher risk of aseptic loosening, or that its efficacy was unknown due to limited studies, as the plaintiff had pleaded.

36. The defendant gave evidence that the MSA mini stem was used for patients who were not candidates for hip resurfacing. This was based on the shape of the head and neck junction of the upper end of their femur (T 336.43-46). The defendant considered that the plaintiff was such a patient due to his slipped epiphysis (T 335.21-31).

37. The defendant’s evidence was that, as at August 2010, he would offer the MSA mini stem to patients who had aspirations to be physically active as with this prosthesis he could “get a fix on the bone, completely ignore the deformity that was present at the junction of the head and the neck and could still utilise a hard-on-hard metal articulation that would stand up to the traumas of sports” (T 335.33-37). His intention in using a mini stem in a more active young patient, such as the plaintiff, was to maintain bone for as long as possible. His reasoning was that when the implant eventually fails, the patient could be converted to a conventional stem implant, rather than a very long revision stem which would have entailed subsequent problems of stress shielding of the proximal femur or further bone loss (T 336.48-50; T 337.1-4).

38. Crucially in my view, in their joint report the orthopaedic experts agreed that it was not unreasonable for the defendant to recommend a short stem implant. Indeed, Dr Doig, called by the plaintiff, went even further and opined that a reasonably competent orthopaedic surgeon was perfectly entitled to implant the short stem implant used in the plaintiff’s surgery. He said that such an implant represented a reasonable choice in 2011. He opined that he considered the selection of such an implant would have been accepted by a vast majority of orthopaedic surgeons at the time (Exhibit PX36 – answer to Question 3 (B48-49)).

39. I find that the defendant advised the plaintiff about the risks and benefits of the proposed surgery at their consultation in August 2010. This is denoted by the defendant’s recording of “R&B” in his medical notes. This, he explained, was a reference to him having discussed the different complications and specific problems that could be encountered during the surgical procedure (T 358.20-29).

40. I accept the defendant’s evidence as to what he discussed with the plaintiff, based, as it was, on his medical notes. I shall return to the topic of the defendant’s medical notes later in these reasons.

41. It is sufficient at present to say that I accept the defendant’s evidence as to his explanation of the risks and benefits of the proposed surgery, and reject the plaintiff’s evidence as to what he was told (or not told) by the defendant (see T 51.37-40).

42. I thus find that the plaintiff has not established breach as asserted in relation to the First Issue.

Causation Issues Relevant to the First Issue

43. I should also say that even if the plaintiff had established breach, I would not have found that the plaintiff has established causation as required by s 5D CLA.

44. In the present case, in order to establish causation, the plaintiff must persuade the Court to draw an inference that he would not have proceeded with the MSA mini stem had he been advised that it was a novel device with limited information as to its efficacy being available. Such an inference of fact involves “a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts” (Fuller-Lyons v New South Wales [2015] HCA 31; 89 ALJR 824 at [46]).

45. On the contrary, I would have found that despite the plaintiff having been advised of the above, he would have continued to proceed to surgery with the MSA mini stem in any event. I take this view for the following reasons.

46. First, the plaintiff understood the difference between a resurfacing and a total hip replacement (T 145.9-21). He had seen up to six orthopaedic surgeons before seeing the defendant, and they had all recommended total hip replacement (T 49.49-50; T 145.5-7; T 157.6-10).

47. The plaintiff had a desire to play squash, to have an equal leg length, and to have more movement in his hip (T 52.14-16). He wanted to be able to play high impact sports including squash and be “functional” (T 152.32-41). He came to see the defendant as his website advertised a device for young athletic patients, namely the MSA mini stem. The plaintiff clearly saw himself as such a patient (T 50.17-19).

48. Further, before the plaintiff committed to the defendant, he had carried out his own research as to an appropriate prosthesis for an active person such as himself (T 144.34-41). He had also researched metal-on-metal articulations. On his own evidence, he researched hip surgery online over the period of a couple of years. This occurred in and around 2009, before the plaintiff saw any orthopaedic surgeons in relation to his left hip (T 50.21-35).

49. The plaintiff asserted that he understood from his research that, as at August 2010, “short stem devices were used in young athletic patients” (T 51.46-49). As I have indicated, it is clear that the plaintiff saw himself as such a patient. As at August 2010, there were less than half a dozen brands of mini stems available, one of which was the MSA brand (T 337.6-11). The plaintiff understood that the defendant recommended the MSA device as it would suit his needs (T 51.33-35).

50. The plaintiff also understood what was involved in the proposed total hip replacement surgery, and he understood that the defendant’s intention was to preserve his bone by using the MSA mini stem (T 155.15-40; T 156.25-28).

51. It should also be noted that the plaintiff had previously made arrangements for a hip replacement with a “similar device”, being a mini stem, to be performed by another orthopaedic surgeon (T 147.8-13; T 157.8-10; T 158.1-3). He cancelled that surgery in order to proceed with a similar surgery with the defendant (T 53.8-11).

52. The issue of causation also needs to be considered against the background of the plaintiff’s physical condition as at August 2010. As the defendant submitted, his condition at that time was extremely poor for a man of his age.

53. At the initial consultation, he advised the defendant that his main concern was a “grating” that “felt like glass” in his left hip. He said that he could only walk up to 500 metres unaided, stating, “It got pretty bad at the end there, yep”, and that he was “finding difficultly [sic] just to walk before [his] surgery”, he would occasionally take stairs one at a time, and that he had “movement issues”. He stated that it was difficult to do his shoes up as he found it difficult to bend forward. He could not cut his toenails (T 149.49-50; T 150.1-39).

54. These health considerations, in my view, militate against a conclusion that the plaintiff would have readily delayed replacement surgery as he now asserts.

55. As I have earlier indicated, the plaintiff underwent surgery to remove the Knowles pin on 15 October 2010. He attended on the defendant on 1 November 2010 and again on 2 December 2010, when there was further discussion about the proposed hip replacement surgery and the use of the MSA mini stem. He agreed that the goal of the surgery was to alleviate the plaintiff’s leg length issues and rotation issues resulting from his pre-existing scoliosis (T 161.7-37). On 12 January 2011, there was further discussion about the use of the MSA mini stem. This, of course, was an occasion prior to the total hip replacement surgery on 10 May 2011.

56. The plaintiff did not take any further steps to investigate or research the MSA mini stem between August 2010 and May 2011. He did not ask the defendant any questions about the MSA mini stem at any of his consultations with him. He did not send the defendant any more emails, as he had done in the past if he had queries (see Exhibits PX1 to PX4). During that 9-month period, he did not speak to his GP about the proposed surgery, nor did he speak to any of the other orthopaedic surgeons whom he had seen previously.

57. In written submissions, the plaintiff (at [44]-[47]) pressed the above chain of email correspondence between himself and the defendant in March 2011 as being evidence of the defendant’s failure to heed his concerns, and as indicative of his desire to pursue an implant that would offer the least amount of short-term risk. In respect of that, the plaintiff placed much weight on his words that he was “willing to postpone or even cancel this surgery” until he was satisfied with the prosthesis to be used (Plaintiff Written Outline of Submissions at [44]). The plaintiff submitted that the defendant’s email in reply (Exhibit PX3) did not adequately address his concerns. I reject this submission for the following reasons.

58. When read in context, the email chain demonstrates that the plaintiff had only raised concerns specifically regarding the composition of the device’s bearing and its coating, and the potential for associated metal-on-metal wear. The plaintiff’s enquiries were confined to the suitability of titanium bearings, and did not extend to the longevity or suitability of the short stem implant. In reply (Exhibit PX3), the defendant advised the plaintiff that a titanium bearing would not be used as it was not suitable. The plaintiff indicated satisfaction with that advice and did not press his enquiry further (Exhibit PX4).

59. Further, the plaintiff admits in Exhibit PX1 that the defendant had discussed the risks with him in relation to metal-on-metal bearings, and his response in Exhibit PX4, in my mind, is evidence of his acceptance of that fact following further enquiry. None of this leads me to a conclusion that the defendant did not consider the plaintiff’s concerns or provide adequate warning as to longevity of the device such that the plaintiff would have opted for a different implant if properly warned (assuming that breach was established).

60. To the contrary, in his initial email (Exhibit PX1), the plaintiff stated that the bearing was just as important to him as the short stem. To my mind, this statement reveals that he did not place any higher weight on the suitability of the short stem as he did on bearing issues when deciding to proceed with the implant which was eventually used by the defendant in his surgery. I should also add that, as I have indicated, the plaintiff ultimately did not run a case based on metal-on-metal articulation.

61. Thus, I find that, even if the plaintiff had established breach in relation to the First Issue, it seems clear that the plaintiff was committed to follow the defendant’s advice for the reasons which I have set out above. This, in turn, would have led me to conclude that the plaintiff would have failed to establish an inference of causation even if he had established breach.

Issue 2 – Steps Taken During the Revision Surgery to Identify and Eliminate Loosening

62. 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”).

63. In my view, in his written final submissions the plaintiff misstates the relevant legal test.

64. The plaintiff submitted in those submissions that the defendant was “not meticulous” when checking that the femoral stem was loose at the revision surgery in August 2011 (Plaintiff Written Outline of Submissions at [3]).

65. As the defendant correctly points out, this submission misstates the legal duty which fell upon the defendant, which is to exercise reasonable skill and care. The defendant submitted that the Court would find that the defendant discharged this duty of care during the Revision Surgery procedure performed on 30 August 2011 to confirm that the plaintiff’s stem was not loose.

66. The defendant submitted that I should accept the defendant’s evidence as 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.

67. The defendant’s evidence was that, as at August 2011, he had performed somewhere in the order of 400 revision surgeries (T 581.49-50). He said that he always performed such procedures in the same particular way (T 395.30-46). He described that process in detail in his evidence (T 395.48-50; T 396.1-30; T 397.23-38. Also see Exhibit DX8). His evidence included evidence of the steps which he always took to ascertain the stability of the stem (T 398.30-50; T 399.1-6). He said that he had no doubt that he followed his usual practice in performing the Revision Surgery. The defendant and his surgical assistant, Dr Grieve, discussed the operation report relating to the Revision Surgery. He said that this discussion occurred as the report was being written by Dr Grieve. The defendant then says that he checked the report, and following that review made his own additions to it.

68. In cross-examination, the defendant described the process which he adopts in hip replacement surgeries. He discussed what he did in a quite detailed manner. He said that his technique involved him using:

“the same robotic technique every single time. It’s - that’s just been drummed into us over years of training… It’s the same technique that pilots use called waypoint… Pilots use a thing called waypoints, your Honour. So, when you get in a plane, they do something, and they can’t go to the next step until they’ve completed the step before. We do a very similar thing in orthopaedic surgery when doing hip replacements, knee replacements, revisions. You can’t take shortcuts [be]cause you end up in the ocean if you’re a pilot” (T 489.4-22).

69. I unhesitatingly accept the defendant’s evidence in this regard. He presented as a very organised, methodical man. My assessment of the defendant as being an organized and methodical individual was not only based on his evidence as to his operative procedures, but also based on his evidence as to his note taking which, in my view, appeared to be similarly methodical.

70. The plaintiff argued that the surgical report of the Revision Surgery was inadequate in that the operation report did not record all of the steps undertaken by the defendant to ascertain the stability of the stem. I do not consider this to be a matter which assists the plaintiff’s case. As the defendant explained in cross-examination, not everything which occurred during the procedure was written down in the post-operative report, and indeed what was recorded was not recorded in chronological order. Rather, as the defendant explained, the report was an overall review of what happened during the operation (T 544.41-43).

71. Crucially in my view, the report recorded that the stem was not loose. That was part of the report authored by Dr Grieve immediately following the procedure (T 549.15-25).

72. In my view, another matter of crucial significance in relation to this issue was the joint view of the orthopaedic experts that the defendant undertook all of the relevant and necessary steps required of him to confirm that the stem was not loose. Dr Doig and Dr O’Sullivan detailed what a competent orthopaedic surgeon should have done during the operative procedure to confirm that the stem was not loose or would not become loose soon after the procedure (Exhibit PX36 – answer to Question 7 (B51-B52)). They also agreed that if the steps as described by the defendant in his evidence were undertaken, then that was a reasonable way to assess whether the femoral stem was loose (T 634.29-50).

73. It should also be noted that, confronted with; first, the evidence contained in the surgical report; secondly, the evidence given by the defendant; and thirdly, the opinion of the orthopaedic experts, the plaintiff’s counsel in cross-examination did not put to the defendant the critical steps which the plaintiff asserts would have led to the discovery that the femoral stem was loose. The cross-examination went no higher than senior counsel for the plaintiff suggesting to the defendant that he could have made an error in checking whether the femoral stem implant was loose at the time of the operation (T 549.49-50).

74. The plaintiff submitted that I should draw an inference adverse to the defendant from the defendant’s failure to call Dr Grieve. I consider this submission to be misplaced. The matters recorded by Dr Grieve in the operation report were representations contained in a business record, which was admitted without objection. Once admitted, therefore, there was no need to call Dr Grieve.

75. The plaintiff’s submissions on the failure of the defendant to call Dr Grieve, based as they are on the rule in Jones v Dunkel (1959) 101 CLR 298, seem to me to be based on a misconception of the rule. The plaintiff in effect asks me to draw an inference that the evidence of Dr Grieve would have been positively damaging to the defendant’s case, whereas the rule, if it was engaged, merely allows an inference to be drawn that the evidence concerned would not have assisted the non-calling party’s case.

76. In my view, there was no need for the defendant to call Dr Grieve as his surgical report was admitted without objection. As is well known, the rule in Jones v Dunkel does not require a party to call a witness to fill a gap in their opponent’s case. The Jones v Dunkel inference is only available if an inference is available that the party failed to call the witness because they “feared” to do so (see Jones v Dunkel at 320-321 per Windeyer J). In the present case, I would not infer that the defendant failed to call Dr Grieve because he feared to do so, rather I would infer that the defendant did not call him because it was unnecessary to do so.

77. For these reasons, I reject the plaintiff’s case on the Second Issue.

Issue 3 – Alleged Negligence in Post-Operative Management

78. The plaintiff submits that the defendant failed to investigate his ongoing complaints of chronic pain, restricted movement, a loose femoral stem and leg length discrepancy in the period from 2012 to 2019 (the “Third Issue”).

79. In the joint orthopaedic report, the experts agreed that in order to diagnose loosening of the prosthesis, an orthopaedic surgeon exercising reasonable skill and care would be required to:

80. undertake a focused clinical examination of the patient; and

81. obtain a careful history from the patient; and

82. evaluate the radiographic imaging (T 615.12-27).

83. For the following reasons, I find that there was no such failure on the part of the defendant.

Focused Clinical examination

81. I shall deal first with the issue of undertaking a focused clinical examination of the patient.

82. In my view, the defendant’s clinical records establish that he undertook an appropriate clinical examination of the plaintiff on each occasion upon which he saw him.

83. Indeed, the plaintiff accepted during cross-examination that he was “examined on occasions” (T 226.43-45). He simply said that he could not recall on which occasions he was examined. This is to be expected given the effluxion of time and the number of attendances.

84. I accept the defendant’s evidence that the plaintiff’s leg length was measured on multiple occasions and no change in leg length inequality was found over time until the significant deterioration in leg length inequality was noted in 2019 (T 580.38-40). It should also be noted in that regard that when this deterioration was recorded, the plaintiff had not attended on the defendant for some 18 months.

85. Based on the defendant’s clinical notes and his evidence, which I accept, I find that the defendant undertook appropriate and reasonable clinical examinations of the plaintiff over the years during which the plaintiff attended upon him.

Credit Issues

86. Before dealing with the issue of the plaintiff’s allegation as to his reports to the defendant as to his level of function and activity, it is necessary for me to determine issues of credit. This issue is especially important in relation to the plaintiff’s evidence of his level of function and activity, and his alleged reports to the defendant as to those matters over time. Consideration of that issue basically involves resolving a clash between the oral evidence of the plaintiff concerning these matters and the defendant’s clinical notes.

The Defendant’s Clinical Notes against The Plaintiff’s Recollection

87. I have no hesitation in saying that I consider the defendant to be a witness of truth. He gave his evidence in a direct and forthright manner. As I have earlier indicated, he presented as a cautious and methodical man.

88. He treated the plaintiff between 2010 and 2019. He said that without the benefit of his notes, he would not be able to recall what occurred during his consultations with the plaintiff over the years “except for some very specific items” (T 457.35-38). This concession was to be expected and, in my view, had the effect of bolstering his credit. I take this view as, in my opinion, it would be implausible if the defendant had professed to recalling more than he did, given the timing of the subject events, and his experience with what was no doubt many patients over time.

89. I have no hesitation in accepting the defendant’s clinical notes (Exhibit DX5) in preference to the plaintiff’s recollection, where there is a dispute about what occurred in any given consultation. The defendant gave evidence as to his usual practice for recording contemporaneous notes during consultations, which I accept.

90. In that regard, it should be noted that the plaintiff confirmed that the defendant took contemporaneous notes during each and every consultation. He also agreed with much of the content of the clinical notes for the period between 24 August 2010 and 23 March 2019. Tellingly in my view, the matters with which the plaintiff did not agree in relation to the defendant’s notes were either the parts of the notes he could not recall, or those which did not suit his case.

91. In final submissions, the defendant provided to the Court a colour-coded photocopy of the defendant’s clinical notes. I marked that document MFI 8. This document I found to be a telling one as it demonstrated vividly that, overwhelmingly, the plaintiff agreed with the content of the defendant’s notes. Crucially, it also demonstrated that the occasions when the plaintiff denied the content of the defendant’s notes were overwhelmingly the occasions when the entries recorded facts adverse to the plaintiff’s case.

92. In Peden v Ferguson [2012] NSWSC 492 at [100]-[101], Adamson J (as her Honour then was) discussed the crucial role of medical notes in the search for truth. Her Honour stated:

It is important, in my view, to appreciate the significance of clinical records. which are intended to record matters which are salient from a medical point of view. The following passage from Hope JA's judgment in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 548-549 is a convenient articulation of why the admissibility of such records is "of great importance in the search for truth":

"Any significant organization in our society must depend for its efficient carrying on upon proper records made by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned. In the every-day carrying on of the activities of the business, people would look to, and depend upon, those records, and use them on the basis that they are most probably accurate. This position applies to hospitals, as to any other form of business; indeed, hospital records provide an excellent example of the basis, and of the usefulness, of Pt IIC [of the Evidence Act 1898]. If a busy honorary such as the second respondent wished to remind himself what the appellant's precise problem or medical condition was, or to learn what had happened since he last saw her, he would undoubtedly refer to the records, and would act upon the basis that they were correct. If, for some reason, a new honorary had to take over the case, it is to the records that he would go to find out what had happened or what he had to do. No doubt mistakes may occur in the making of records, but I would think they occur no more, and probably less often, than in the recollection of persons trying to describe what happened at some time in the past. When what is recorded is the activity of a business in relation to a particular person amongst thousands of persons, the records are likely to be a far more reliable source of truth than memory. They are often the only source of truth."

I consider the clinical records of medical practitioners to be the most reliable evidence in these proceedings. There is no doubt that each was contemporaneous in that they were made in the course of each consultation with the plaintiff. Furthermore they were made by persons who had, at the time the record was created, no interest in doing other than making a record of what had occurred. While many criticisms were made of the defendant's records, which are addressed in more detail below, the effect of the criticisms were that his records were incomplete or insufficiently comprehensive, rather than that what he recorded was incorrect.

93. I respectfully agree and adopt what fell from her Honour.

94. The issue of what the plaintiff told the defendant as to his squash playing during the relevant period occupied significant prominence in the lay evidence. In broad terms, the plaintiff denies that what he told the defendant about his squash playing is as recorded in the defendant’s notes.

95. In my view, there is no ambiguity in the notes where they refer to the subject matter of squash, and they are not open to multiple interpretations. The only source of information going to that issue must have been the plaintiff himself. I have little hesitation in finding that the defendant’s notes accurately recorded what the plaintiff told the defendant.

96. I also consider that the plaintiff’s recollection as to what occurred at his many consultations with the defendant over the years to be unreliable where his oral evidence is contradicted by the defendant’s notes.

97. In addition, I found that the plaintiff was prone to exaggeration, when he thought that exaggeration would assist his case. He described his consultations with the defendant as being “groundhog day” yet he did not attend upon his GP at any time to seek a second opinion from another orthopaedic surgeon (T 197.14-23). This is so notwithstanding, as I have earlier mentioned, he had seen up to six orthopaedic surgeons previously and, before consulting with the defendant, had been booked to undergo surgery to insert a mini stem prosthesis, which surgery he cancelled (T 157.6-10).

98. Further, I note that the plaintiff did not write to the defendant (as he had done on at least two occasions prior to his total hip replacement) to raise his claimed concerns. On his own case, the plaintiff continued to put his faith in the defendant despite seeing the defendant for years and despite his condition worsening during that period (T 199.46-50; T 200.1).

99. The plaintiff’s evidence as to what occurred at the consultation of 20 January 2015, in my view, was especially damaging to the plaintiff’s credit. According to the defendant’s clinical notes, the plaintiff reported “some” left groin ache. The plaintiff, however, gave evidence that, “I wouldn't use the word "some". I was in agony”. To similar effect, on 10 April 2015, the notes reported, “still noting a few pulling feelings in his left groin”. The plaintiff stated the following on this issue:

Q. You were still noting a few pulling feelings in your left groin?

A. I relayed that I was in constant pain.

Q. Constant pain?

A. Agony.

Q. Agony? You told Associate Prof Woodgate agony?

A. I used the word "agony", yes.

100. I simply do not accept that, as the plaintiff would have it, he told the defendant that he was in “agony” but that the defendant failed to either note that fact, or act upon it.

101. Another matter which I consider to be adverse to the plaintiff’s credit is his evidence that he asked the defendant about the device and was advised that it was “fine” on every occasion upon which he saw the defendant. This assertion is also inconsistent with the defendant’s evidence and the clinical notes which, as I have indicated, I accept.

102. The plaintiff also said that he mentioned to the defendant his concern as to his leg length inequality at every consultation. That is also inconsistent with both the defendant’s evidence and the clinical notes. In addition, it was a matter which was not put to the defendant.

103. The plaintiff maintained that, other than on the occasion of his first consultation with the defendant, the defendant did not measure his leg length to obtain measurements at any time thereafter. The defendant denied this, which evidence is supported by his contemporaneous clinical notes which record measurements on the following occasions:

104. 2/12/2010 – 0.5cm-1cm;

105. 22/6/2011 – 0.5cm;

106. 1/8/2011 – 2.5cm;

107. 11/11/2011 – 1cm;

108. 9/8/2012 – 0.5cm-1cm;

109. 30/8/2017 – 1cm;

110. 12/3/2019 - 1.5cm;

111. 28/3/2019 – 1.8 cm.

112. The defendant also cast doubt on the plaintiff’s reliability as a witness insofar as he maintained that he did not have any injections into his back until 2019. The defendant submitted that that is inconsistent with the objective evidence, which establishes that he underwent a previous left sacroiliac injection on 16 September 2013. I agree with this submission.

113. The defendant also submitted that the plaintiff exaggerated the extent of his pain in the long period after the Revision Surgery. The defendant pointed out that this evidence is contrary to objective facts. For example:

114. When he saw his GP, Dr Cowap, on 18 June 2012, he reported that he was “doing well” following the surgery performed by the defendant and made no other complaints of pain.

115. Dr Cowap did not record any complaint about anything to do with the plaintiff’s hip on 31 July 2012.

116. On 27 August 2012, Dr Cowap recorded “muscle strain post increased use recently L thig hpost [sic] THR – will US & refer ortho if not settling”.

117. The plaintiff then did not see his GP until some 13 months later on 10 September 2013, when he reported that he was having “ongoing issues post THR” and that he had been “back to playing squash but gets intermittent severe pains”.

118. He then saw Dr Cowap about 15 months later on 22 December 2014, when he made no complaint about his hip and then not again until 10 March 2016, when Dr Cowap recorded “1) Ongoing L hip pain - in flexors - ? ileo-psoas tear - having physio, needs daily mobic - refer back to Dr Woodgate for review…”.

119. The defendant did not attend upon that GP practice again until 2021.

120. The plaintiff saw another GP, Dr Anwar, at the Revesby Family Clinic, in 2014, and then not again until 13 April 2017 and 2 June 2017 to get scripts for Mobic.

121. I agree with this submission.

122. I also consider the fact that the plaintiff did not seek a referral to another orthopaedic surgeon despite the fact that, on his case, his pain was apparently getting worse, and his level of activity was reducing.

123. Similarly, the plaintiff did not make an earlier appointment to see the defendant, whom he saw next on 30 August 2017, more than a year after his previous appointment. Thereafter, the plaintiff did not see the defendant for some 17 months, until 12 March 2019. This was during a period when the plaintiff gave evidence that the physical problems he was experiencing had not improved and were in fact getting worse (T 226.10-15).

124. Another matter which in my opinion is destructive of the plaintiff’s credit is that he maintained that the defendant did not mention the possibility of further revision surgery until 2017. That also is inconsistent with the clinical notes, which I accept.

125. Further, when asked about the consultation on 12 March 2019, when the defendant recorded “stem loose and sinking” (Exhibit DX5 (p26)), the plaintiff maintained that the defendant advised him “categorically that my stem was fine, that my device was fine” (T 227.22-23). I do not accept this evidence.

126. I also formed an adverse view of the plaintiff’s credit by reference to his evidence as to what he told the defendant concerning his squash playing. This oral evidence was in stark contrast to the defendant’s notes. The plaintiff sought to downplay how much squash he was playing. One example of this is the exchange at T 174:26-49; 175:1-8:

Q. You told Associate Prof Woodgate, in terms of your functioning, that you were playing squash at least once per week for up to three hours, didn't you?

A. No.

Q. You didn't say that at all?

A. I wasn't playing squash. I didn't play squash that early on. So, I wasn't playing, definitely wasn't playing. I wasn't playing squash, and I wasn't playing squash for three hours at that time.

Q. So, is your evidence to his Honour that you weren't playing squash at all as at 8 March 2012?

A. How many months is that after the surgery?

Q. About six and a half months after your revision surgery.

A. So, I was allowed to hit the ball up but not play squash. So, I recall six to eight months, I just hit the ball up, and then just before the 12-month mark, I was doing routines with Christian, and then at 12-month mark I was allowed to do - be on a court which I played doubles. So, at that point in time, no, I wasn't playing three hours of squash. I was - at six-month mark, yes, I was on a squash court for 45 minutes just hitting the ball up.

Q. You also told Associate Prof Woodgate, as at 8 March 2012, that you had developed some sharp pain in your right knee. Correct?

A. Correct.

Q. And that would occasionally radiate down the outside of your right knee.

A. Correct.

Q. You told him, that is Associate Prof Woodgate, that you were wearing a knee guard or a brace to play squash.

A. I'd been wearing a knee guard prior, in 2006 - 7, wearing a knee guard. I didn't say I was wearing a knee guard at that particular point in time, playing squash, because I wasn't playing squash.

112. The plaintiff’s evidence as to what he told the defendant concerning his squash playing, in which he sought to draw a distinction between his elapsed time at the squash courts on the one hand, and the time during which he was actively playing on the other, also did not reflect well on his credit. He suggested that what he told the defendant as to squash playing was a reference to his elapsed time spent at the squash courts and not time during which he was actually playing.

113. To my mind, this evidence defies common sense. The plaintiff obviously knew that the only relevance of his squash playing to the defendant was the extent that his playing squash was relevant to his post-operative functionality. Thus, the plaintiff must have known that the only matter relevant to the defendant was the time during which he was playing squash, and that the total time during which he was actually at the squash courts was quite irrelevant.

114. I shall return to the detail of this evidence shortly.

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.

116. I shall now return to the subject of the second area of enquiry which the orthopaedic experts said was required, namely the obtaining of a thorough history of functionality obtained from the patient (see [79] herein).

History of the Plaintiff’s Level of Function and Activity

117. The defendant’s clinical notes record what the plaintiff told him as to his level of activity. These notes included the notation as to how often those activities occurred and the duration of his performance of them. As I have earlier indicated, those activities included the plaintiff’s reports of his playing squash.

118. The plaintiff gave evidence that he recommenced playing doubles squash a year after the Revision Surgery (T 75.34-41). He described his routine in 2012 as being present at the courts for one and a half hours and playing for some period of that time (T 82.5-45). He continued to play squash through 2012 and up until 2017, albeit with some intermittent breaks (T 83.13-14). He maintained that he did not play singles squash at any time after 2012 (T 83.42-43).

119. The plaintiff accepted that he told the defendant about playing squash. However, as I have earlier mentioned, his evidence in this regard seems to draw a distinction between telling the defendant the elapsed time during which he was at the squash courts, as distinct from the time during which he was actually playing squash.

120. For example, the plaintiff denied that he told the defendant on 8 March 2012 that he was playing squash at least once per week for up to three hours (T 174.26-33). Despite his initial evidence that he wasn’t playing any squash as at that date, he then changed his evidence to be that he was on the “squash court for 45 minutes just hitting the ball up” (T 174.26-45).

121. He also denied that he told the defendant on 9 August 2012 that his right knee was settling well. He denied saying that both his hip and knee were going so well that he had been able to play four hours of squash the preceding Saturday, including playing singles (T 184.42-48).

122. It should also be noted that the plaintiff also told a physiotherapist at Take Control Active Rehab on 4 September 2012 that he was playing squash one to two times per week, rock climbing once per week and going to the gym twice per week (Exhibit PX26 (B181)).

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.

124. The plaintiff’s response to the inconvenient entry in the Take Control notes was similar to his position in relation to the defendant’s notes. The plaintiff agreed that the physiotherapist had accurately recorded all of the other matters that the plaintiff reported to her on that occasion, but said that the physiotherapist had erroneously recorded what he reported in respect of the entries which contradicted his case.

125. The plaintiff did accept however that when he saw the defendant on 7 February 2013, he told him that he was playing squash weekly (T 189.27-29).

126. When confronted with the evidence that he told the defendant in early 2014 that he had been playing squash for at least four hours, the plaintiff responded “I’ve never played squash for four hours, but, yeah, I played squash. It was a couple of hours, one and a half hours” (T 201.5-7). This was at a time when the plaintiff asserted that he was in “constant agony” (T 201.32-37).

127. The defendant’s clinical notes recorded that on 25 August 2014, he reported to the defendant that he played six games, singles and doubles. Notably, the defendant also recorded “2hrs on court”. The plaintiff denied that he said anything about singles, but could not recall if he mentioned the number of games which he played.

128. As I have earlier indicated, the plaintiff attempted to explain away the defendant’s notes in relation to the issue of squash by recourse to the distinction between how long he was at the squash centre on the one hand, and how long he played on the other. For example:

Q. And you told Associate Prof Woodgate that you were spending three hours on the court. Correct?

A. Three and a half - three and a half hours at the courts. Yes. An hour, hour and a half on the court.

Q. You didn't say that to Associate Prof Woodgate in August 2014, did you, Mr Taylor?

A. I don't - I explained that I was at the courts for three and a half hours. Dr Woodgate knew I did my stretches beforehand, so I've never played squash for three and a half - three and a half hours on the court, ever. I don't know anyone that's played that much squash so I never - I never played for three and a half hours.

Q. You didn't tell Associate Prof Woodgate that you were at the courts for three hours but only playing for an hour and a half, did you?

A. Dr Woodgate was aware that I did my stretching beforehand and the cross-trainer and then was on the court, hitting the ball up and then I played - played on the court.

…

Q. Mr Taylor, what I'm suggesting to you is that you did not tell Associate Prof Woodgate in August 2014 that you were spending three hours at the court but only playing for an hour and a half, did you?

A. We never got into that much detail. No.

129. On 10 April 2015, the defendant recorded that the plaintiff was “playing squash”. The plaintiff denied that was the case, saying “I don't recall if I told him I was taking time off, but I was taking time off at that time, I wasn't playing every week…That's correct, I wasn't sure if I told him.”

130. On 14 August 2015, the defendant recorded “still squash – 3hr 1x/wk” (Exhibit DX5 (p25)). This led to the following exchange in cross-examination:

Q. --at that point? Associate Prof Woodgate asked how you were going, and you said to him that you were playing squash at least three hours weekly?

A. I played once a week for an hour and a half at the courts for three hours.

Q. I think you've already accepted, sir, that you didn't make that qualification at any point when you spoke to Associate Prof Woodgate about the level of squash you were playing, did you?

A. I did tell Mr - Dr Woodgate that I had spent time at the squash courts stretching, being on the court, off the court. No-one stays on the court. I've never met anyone that stays on the court. So, you play a game, come off a game. So, I'm not sure how - we didn't have a lengthy conversation in exactly what I did at that time. It was rounded down that I was there at the course [sic] for three hours but as I've explained to you, I never played for three hours ever in my life. I've always done my stretches, played for an hour and a half, chat for a while, go home.

Q. But that's not what you told Associate Prof Woodgate when you described your level of squash activity, is it?

A. I didn't go into great detail. I mentioned I was at the courts for three hours.

HIS HONOUR

Q. What would be the relevance of the amount of time you were actually at the courts compared to the actual time you were playing?

A. Well, no-one sat me down and gone, "Steve, how long did you play for?" Because how could I work out - I'm there on the court for ten minutes to play a game, I'm off - off the court for ten minutes, or I'm on there for 15 minutes, I'm off for five minutes. I play a game for ten minutes and then I'm off for half an hour, like--

Q. Weren't you seeking to impart to your doctor information which was relevant to your hip problems?

A. Yes.

Q. What would be the relevance of the amount of time you sat around chatting at the squash courts?

A. I suppose my level of activity was included in my stretches and on my bike.

131. The plaintiff’s recourse to asserting that what he was relaying to the defendant was his total time at the squash centre on the one hand, and not the time which he spent actually playing cannot be accepted. I consider such evidence to be self-serving in the extreme. As I have earlier indicated, it did not reflect well on his credit.

132. It is also important to note that after this 14 August 2015 consultation, the plaintiff then did not see the defendant for over a year. This, in my view, is another objective fact inconsistent with the plaintiff’s case. On 17 August 2016, the defendant recorded “Squash 1x/wk – 3 hrs” (Exhibit DX5 (p26)). The plaintiff on the other hand said that he “wasn't playing squash very much in 2016… No, I was taking time off. I was still playing, but I was taking time off to hopefully - things to heal; my leg to heal, for the pain to go down. And then I would take like a month off, then come back to squash. If my back went out, I'd miss a couple of weeks of squash, so it wasn't every week”. The plaintiff also recalled saying that he “wasn't playing all the time every week” (T 218:43-50; T219:1-6).

133. On 30 August 2017, exactly six years post-Revision Surgery, the defendant recorded “Squash 1x/wk” and that the plaintiff was working as a courier and doing animation work (Exhibit DX5 (p26)). The plaintiff asserted that he “didn't say weekly… At that time, I wasn't playing weekly. I was taking time off from the pain. I was intermittently playing squash” (T 223.26-31). The plaintiff asserted in cross-examination that at this time he was in “agony”. This is to be compared with the defendant’s record of “some stiffness/still int tearing feelings psoas”.

134. Further, in relation to the plaintiff’s reports to the defendant as to the nature of his physical activity, the plaintiff accepted that he told the defendant that he was using a bike and cross-trainer in August 2014.

135. The plaintiff explained that he was taking the anti-inflammatory Mobic during that time. He says that this fact supports his case as to his ongoing disabilities. I do not accept this. This submission ignores the defendant’s evidence that he was prescribed Mobic for discomfort in multiple areas, and not exclusively for pain in his hip.

136. In summary, 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.

137. I do not accept the plaintiff’s evidence which contradicts the defendant’s notes in relation to his level of function and activity. If the plaintiff was in fact experiencing the lack of functionality in the period as he claims in his evidence before me (which I do not accept), then I would find that he was conveying the opposite impression to the defendant.

138. For these reasons, I find that the plaintiff has not established breach in relation to the Third Issue.

Issue 4 – Consideration of Radiographic Imaging

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”).

140. It is convenient to deal with issues arising out of the alleged failure to consider radiology generally, separately from the plaintiff’s case based on the defendant’s consideration of an image obtained in February 2013. This later image was the subject of the plaintiff’s amendment application (see [27] herein).

141. As to the allegation of a failure to consider radiological reports generally, I do not consider the plaintiff has made out his case.

142. The defendant’s notes (which, as I have indicated, I accept) demonstrate that the defendant considered the available radiographic imaging at each and every consultation with the plaintiff. Many of those instances were confirmed by the plaintiff himself and by the cross-examination (see, for example, T 555.14-18; T 555.45-47).

143. At times, the defendant recorded on the various radiological reports or in his clinical notes his agreement or disagreement with conclusions set forth in the reports, based on his own review of those images. He certainly did not accept the views of the radiologist who prepared the reports uncritically.

144. In any event, and importantly, the evidence of the orthopaedic experts, and particularly the expert called by the plaintiff, Dr Doig, was that while radiological images were an important diagnostic tool, they were not a paramount consideration to a treating orthopaedic surgeon. Indeed, he said that radiological reports were of lesser importance diagnostically than clinical examination and an exploration of the patient’s history of functionality taken by that surgeon.

145. Further, 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.

146. The plaintiff alleges that the defendant wrongly interpreted an image of February 2013 as not indicating loosening of the prosthesis. The plaintiff’s case in this regard was based on the report of Dr Thomson, radiologist. In his report, which was tendered without objection (Exhibit PX17), Dr Thomson expresses the view that an X-ray dated 22 June 2011 demonstrated loosening from the stem.

147. Dr Thomson was not required for cross-examination.

148. The defendant submitted that I should not accept Dr Thomson’s opinion. This submission was based primarily on two factors. The first was that the report was a report expressly generated with the benefit of hindsight. This was to be contrasted with the orthopaedic evidence which was not affected by hindsight.

149. This second factor militating against me accepting Dr Thompson’s opinion, the defendant says, was the manner in which Dr Thomson was instructed. These instructions crucially asked him to assume matters set forth in a letter from Dr Neil to his referring GP of 18 April 2019. This letter contained many expressions of opinion adverse to the defendant, some of which were contrary to the evidence before me and contrary to my findings.

150. I consider there to be considerable merit in these submissions, which have assisted me in preferring the joint opinion of the orthopaedic experts, Dr Doig and Dr O’Sullivan, over the opinion of Dr Thomson.

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.

154. I prefer the joint opinion of the orthopaedic experts to the opinion of Dr Thomson.

155. For the above reasons, I find no breach by the defendant in relation to the Fourth Issue.

Issue 5 – Whether the Plaintiff would have had Pain Free and Functional Use of his Leg if a Conventional Stem had been Used

156. The plaintiff submits that it is probable that he would have enjoyed pain free and functional use of his left hip from the hip replacement surgery if a conventional femoral stem was implanted in May 2011, or, in the alternative, if the MSA short femoral stem was replaced in the revision procedure performed in August 2011 (the “Fifth Issue”).

157. As the defendant correctly asserted, the Fifth Issue is really a matter of causation.

158. In my view, it is more likely than not that, had the procedure been undertaken with a conventional stem in August 2010, 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.

160. For those reasons, I find that the plaintiff has not established the Fifth Issue.

Damages

161. I am conscious of the fact that the Court of Appeal has indicated that it is generally preferable for a trial judge who proposes to find for a defendant in personal injuries matters to nonetheless express a view as to the damages which would have been awarded, had there been a verdict for the plaintiff (Nevin v B & R Enclosures [2004] NSWCA 339 at [74]-[75]).

162. This is generally a preferable course, as it may obviate the need for a retrial on the question of damages in the event of a successful appeal on liability.

163. I have given this issue due deliberation and have come to the view that providing alternate conclusions on damages is not practicable in the present case. This is so as there are many factual issues bound up in my conclusions on liability which, if one or more of them were to be disturbed on appeal, would generate a different conclusion on damages.

164. To give but one example of this, the plaintiff has alleged breach of duty before the initial surgery, at the Revision Surgery, and ongoing thereafter until 2019. I have found that there was no breach at any time; a different decision on breach, however, would lead to a different damages outcomes depending on the point in the timeframe at which the appellate court were to determine that breach had occurred.

165. In my view, it would be impossible to determine damages until the appellate court had determined the time of the breach.

166. Accordingly, I consider this to be a case in which it is not preferable for me to express an alternate view as to the proper measure of damages in the matter.

Conclusion

167. For the foregoing reasons, the plaintiff’s case against the defendant must fail. There should be judgment and verdict for the defendant. Costs should follow the event, although I will hear the parties on costs if they wish me to do so.

Orders

168. Accordingly, I make the following Orders:

169. That there be judgment and verdict for the defendant against the plaintiff.

170. That the plaintiff pay the defendant’s costs.

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