Williams v Fraser [2021] NSWSC 416 | Case summary

Supreme Court of NSW|2020-09-22|Before: Harrison J

Hailee Williams' historical summary

Hailee Williams was born with congenital or dysplastic spondylolysis (pars defect). She was regularly involved in sport during her schooling and teen years including dancing and gymnastics. Later, she started running regularly and did kickboxing. Her medical history includes asthma and she suffered recurrent urinary tract infections. She had an episode of pyelonephritis. She also underwent a tonsillectomy.
In November 2009, Hailee Williams started experiencing left hip pain for which her general practitioner Dr Amin Mutasim referred her for pelvic X-rays. She was referred to Dr Michael Stening, an orthopaedic surgeon. He saw her first on 21 December 2009 and diagnosed a left anterior superior iliac spine apophysitis. He noted a six-month history of symptoms and advised conservative management.
Ms Williams first reported right-sided lower back pain to her general practitioner in November 2011. About that time, she took a job in a Chinese restaurant as a waitress, which involved clearing tables, taking orders and carrying plates. She did not have any difficulties with these tasks. During this time, she would also attend a gymnasium several times per week and engaged in kickboxing style exercise. She was not involved in the combat style of this sport.
In about March 2012, Ms Williams commenced work in a childcare centre. Initially, she did not find this work difficult, but after one month or so she developed pain in the left hip area. At the time she was 18 years old. Her work in childcare required repetitive lifting from the ground to waist level. There was also a lot of twisting of her lower back.
Between December 2011 and May 2012, Ms Williams reported episodic neck, back and right hip pain according to the clinical records of Hawkesbury Family Practice.
On 21 May 2012, she attended the Richmond Market Place Medical Centre and reported bilateral hip pain and tenderness over the left anterior superior iliac spine and L4/5 region. Her general practitioner referred her for X-rays of the right hip, left hip and pelvis, an ultrasound of both hips and sent her for an orthopaedic review.
The referral notes for X-ray mentioned lumbar spine discomfort. However, there was no formal request for an X-ray of the lumbar spine.
On 24 May 2012, X-rays of the hip and pelvis were undertaken, and a report prepared by Dr John Fraser, radiologist. Dr Fraser reported in summary that the hip joints were normal and that there was no evidence of arthropathy or other bony abnormalities. The ultrasound of the hip undertaken at Castlereagh Imaging on 31 May 2012 was reported as normal, again by Dr Fraser. In the report of the X-ray, there was no disclosure of a pars defect.
Ms Williams attended Dr Stening on 20 June 2012. She brought X-rays of her hips and pelvis to that appointment. Dr Stening did not identify a pars defect on the X-rays or the films. On that occasion, Dr Stening recorded the history of recurrent pain around the anterior aspect of both hips and tenderness over the anterior superior iliac spine. Dr Stening made a diagnosis of left and right ASIS apophysitis. He ordered conservative cortisone treatment as well as rest. Despite that, the symptoms continued. Dr Stening gave Ms Williams a medical certificate restricting her from lifting while squatting for three months. He advised her that she should not do any contact sport and that the symptoms would resolve as her growth plates developed.
In early December 2012, Ms Williams reattended Dr Stening as her pain had not resolved. She stated that at the time she was suffering from back and hip pain. Dr Stening ordered an MRI and ultrasound of her left hip. According to his notes, he did not order any examination of the spine because he was not given any history of the back pain.
The MRI and ultrasound of the left hip were reported as normal. Treatment continued to be conservative and Dr Stening referred Ms Williams to a physiotherapist (O'Neil Physiotherapy). The referral letter from Dr Stening stated 'Bilateral ASIS tendonitis for strengthening programs'. There was no reference to back pain in the referral.
On 10 January 2013, Ms Williams attended the O'Neil Physiotherapy Practice and saw Mr Craig Seabury, physiotherapist. He recorded history of worsening bilateral hip pain for more than one year. He also noted lumbar discomfort.
Physiotherapy continued without any success. Mr Seabury reported back to Dr Stening on one occasion in a letter erroneously dated 28 June 2013.
Hailee Williams was prescribed some home exercises. During this period of performing exercises, her problems became worse and she was struggling at work. Sometime around February 2013, she found it difficult to climb stairs. Physiotherapy continued until approximately 20 May 2013.
On 3 May 2013, Ms Williams was seen by an osteopath, Dr Thomas Samels. She was reviewed three times by him, and he recorded findings of low back pain and hip pain. Sometime in May 2013, Ms Williams started experiencing urinary incontinence.
On 5 June 2013, Dr Samels ordered a lumbar spine X-ray. In June 2013, Hailee Williams consulted her general practitioner seeking a referral to Associate Professor William Walter, an orthopaedic surgeon, for a second opinion. On 11 June 2013, she had an X-ray of her lumbar spine which demonstrated a 1.7cm anterior slip of L5 on S1 due to bilateral pars defects amounting to a grade II spondylolisthesis. The next day Ms Williams saw Dr Walter. He recorded a history of 18 months of pain which was initially a stabbing pain in the groin, but which had moved to the lower back and buttocks bilaterally.
Dr Walter reported that Hailee Williams was suffering from paraesthesia on the dorsum of the right foot, along with urinary incontinence with urgency. He performed a neurological examination and reviewed some of her prior radiology, nothing that an X-ray of her lumbar spine showed 50% spondylolisthesis at L5 on S1. He then referred Ms Williams to Dr Andrew Cree, orthopaedic surgeon, for urgent review.
On 12 June 2013, she was admitted urgently to the Mater Hospital.
On 13 June 2013, Hailee Williams underwent a further MRI scan of her lumbosacral spine which was reported with Grade III spondylolisthesis and severe L5 foraminal compression. She was seen on 13 June 2013 by Dr Cree who recorded bilateral L5 radiculopathy and partial cauda equina syndrome. Dr Cree was concerned about urinary incontinence worsening over the previous three months. In neurological examinations, he found a minimal weakness of extensor hallucis longus bilaterally, although the rest of the examination was normal. Dr Cree also noted some slight hypo-anaesthesia about the dorsum of the right foot and that the straight leg raise test was positive bilaterally.
On 13 June 2013, Ms Williams underwent an L5/S1 spinal decompression and fusion. On 14 July 2013, Dr Cree considered that Ms Williams was developing secondary pain syndrome and referred her to a pain management specialist. On 27 November 2017, Ms Williams was reviewed by Dr Cree who noted that she continued to have ongoing discomfort in her lower back with pain intensity ranging from 6/10 to 10/10 and that she had syncopal episodes as a result of severe pain. He also noted her to have pain in both legs, the left being worse than the right. Dr Cree suggested that enlargement of lumbar foraminal dimensions may alleviate her legs symptoms.
On 19 February 2018, Ms Williams was reviewed by Dr Cree and he suggested a further surgical decompression to enlarge the narrowed foramina at L5/S1 for that purpose.
On 13 March 2018, Hailee Williams was admitted to Westmead Private Hospital and underwent removal of lumbar L5 instrumentation and resection of the inferior pedicle walls to create more room for L5 nerve roots. However, she continued to experience low back and bilateral leg pain.

Breach of duty

In this context it therefore becomes necessary first to examine and determine the issue of precisely what complaints Hailee Williams made to her medical practitioners and when.

Hailee Williams

Ms Williams gave evidence in the form of statements dated 1 August 2019 and 19 May 2020, upon which she was extensively cross-examined. Ms Williams acknowledged that she recalled some things very clearly but that she had only a vague recollection of others. For the purpose of making her statements, Ms Williams had been shown the clinical records of hospitals in which she had been treated in order to refresh her memory about the dates and times of various consultations with doctors. Ms Williams stated in terms that her statement is based on her memory of what happened at each of her appointments or admissions or presentations to hospital but that there are many matters that she cannot now recall.
Ms Williams recalled her first appointment with Dr Stening on 20 June 2012. She was at that time taking daily Voltaren and Panadol for her back and hip pain. Her mother attended the consultation and she communicated with Dr Stening unless he spoke directly to Ms Williams. Her statement contained the following paragraphs: "87. I have a picture in my mind of handing Dr Stening a large envelope from the radiologist. He took the envelope over to a light box. I recall him opening the envelope and taking out a sheet of paper. The large envelope had X-ray films in it and a sheet of paper which I believe was the X-ray report. I recall him looking at the sheet of paper and placing it back in the envelope and then returning to his desk. To the best of my recollection now, he did not look at the films on the light box. I have no picture in my head of Dr Stening taking any of the X-ray films out and looking at them on the light box on that appointment. He handed the envelope back to either me or my mother. I recall Dr Stening writing on a sheet of paper on his desk. 88. I do not recall whether I informed Dr Stening I was working as a childcare worker at that consultation or at subsequent consultations. I may have filled out this information on a form, or my mother may have told him. 89. I now know from reading his reports that Dr Stening was aware of my work, although I do not now recall how that information was conveyed to Dr Stening. 90. I do not precisely recall the words I used to describe my pain because I recall at that stage I had a lot of trouble trying to work out how to verbally describe the pain and where it was on my body, but I recall standing up from my chair and telling and showing him, using my hands, that it hurt in my hips (indicating a point inside the points of the hip) and then turning around and placing each hand either side of my spine across my lower back. I have been asked to recreate the demonstration I performed for Dr Stening and I attach two photographs of the hand movements I used on the day. These photographs are marked 'A' and are to be found at pages 53 to 54 of this statement. 91. To the best of my recollection, I recall he asked me to get up on an examination table and sit on the edge of it. I recall laying [sic, lying] down on my back and he was raising both legs up and down while they were straight. I do recall being able to have my legs raised and lowered without any discomfort. I cannot recall experiencing any pain during that procedure. I cannot now recall if there were any other specific assessments conducted on the examination table. 92. I do not have any picture in my mind of lying on my front and I do not recall Dr Stening visually examining my back. I do not have any recollection of Dr Stening asking me to perform heel to toe walk or to remove my shoes or clothes. I do not have any recollection of Dr Stening asking me to adjust my clothing so that he could examine me. At that time I was still body conscious and I was not used to people looking at my body or touching me. To the best of my recollection he did not do so. 93. I recall being told by Dr Stening words to the following 'You are experiencing pain due to growth plates and that the pain should resolve over time. You will grow out of it and there is nothing else you can do. It is very common and nothing to worry about.' 94. I recall my mother discussing my treatment with Dr Stening. I do not recall the precise discussion however I recall there was mention 'You could try a cortisone injection that may relieve the pain, but there is no guarantee it will be effective.' 95. I do not precisely recall when, perhaps a couple days later, my mother took me back to the rooms of Dr Stening for a cortisone injection for my pain. My mother was present throughout that consultation. He gave me a cortisone injection into my left hip. 96. On this occasion, I observed Dr Stening going into open room on the side of his office where there was another examination bed with a curtain. Upon his return I was instructed to lay [sic, lie] on the examination table and I was asked to adjust my clothing by pulling my top up and my pants down to about my crotch so that my undies were showing. Once I was settled, he gave me an injection into my left hip on the front of my body. I did not get any injection on the right-hand side and I did not get any injection my back. 97. I recall again hearing a discussion between my mother and Dr Stening regarding the injections and possible follow up reviews. I have no specific recollection of exactly what was said but I recall we were told: 'It will take a few weeks to know if you will get a lot of benefit from the injection. It is not guaranteed to stop your pain and you will have to take it easy at work and home and you should not play sport for a few weeks'."
Ms Williams later described her second consultation with Dr Stening later that year as follows: "116. I do not precisely recall when, but I recall my mother taking me back to the rooms of Dr Stening in late 2012. My mother was present throughout the consultation and I heard her discussing my condition with Dr Stening, although I do not recall all of the details of what was said. 117. To my recollection, I barely spoke during that consultation and I let my mother speak on my behalf. I do recall, however, telling Dr Stening words to the effect of, 'My pain has not gone away, it's in the same places as before and it's much worse.' 118. To the best of my recollection, at the time I saw Dr Stening on this occasion, I did not have any numbness or any weakness or cramping in either leg. I did not have any urinary difficulties. These things came on in 2013. If I had been asked about numbness or weakness in my legs, I would have told Dr Stening I did not have these symptoms at this stage. I was still flexible. 119. To the best of my recollection, I was not asked any questions by Dr Stening about any pain I felt in my back. I may have demonstrated to him where the pain was using my hands. 120. I specifically recall remaining seated next to my mother in front of Dr Stening's desk throughout that consultation. I do not have any picture in my head of being asked to sit on the examination table. I do not recall Dr Stening looking at my back or touching my back. 121. I do not have an image in my mind of lying face down or face up on a bed at Dr Stening's rooms in December 2012. I do not have any memory of getting undressed at Dr Stening's rooms. I was not used to getting undressed in front of strangers and I was still very body conscious at that stage. I think if he had asked me to undress or adjust my clothes, I think I would have remembered this. 122. I vaguely recall Dr Stening saying words to the following effect: (a) One solution is to try another cortisone injection. However, I doubt it will do any good as the last one did not have any lasting effect; and (b) What is going on is a problem with the growth plates in your hip. It is a reasonably common condition and you will grow out of it as your body matures; and (c) I will refer you for an MRI to make sure there is nothing else wrong."
Ms Williams said that she was never given advice by any doctor or physiotherapist from June 2012 to June 2013 that she had spondylosis or spondylolisthesis. Ms Williams did not refer in her statements to her original consultation with Dr Stening on 21 November 2009.

Cross-examination of Hailee Williams

Hailee Williams agreed, somewhat uncontroversially, that she did not have a perfect recollection of what was said or done at consultations back in 2011 and 2012. She agreed that in the period leading up to her surgery on 13 June 2013 that where there was an issue with her back at the time that was concerning her, she would have reported it to medical practitioners. She did not agree that in the period from March until June 2012 her hip pain was the more constant and serious problem for her or that back pain was only an occasional problem. She said, "I thought it was a constant problem". However, Ms Williams went on to say this: "A. During the time from March, I do know that my left hip pain was worse, was a lot worse and very constant; and then when my right hip and back started to hurt, they were not as bad as my hip pain - as my left hip from March/April. And I'd say, yeah, that that's my answer. Q. So, just dealing with that answer. So, in the period March to June 2012, left hip pain was worse? A. Yes. Q. And it was constant? A. Yes. Q. Do you say that during that period you also had right hip pain? A. Towards more towards the middle of the year, yes. Q. So, closer to around June 2012? A. Yes. Q. When do you say the back pain began? A. My left hip started in June or the one before June; in the end of May."
After she started at Kindalin, Ms Williams said that her back pain was not intermittent but constant and "showed up constantly after activity". She said "it wasn't constant but would be flared up with my work". Certain activities caused it to be worse. Ms Williams said this about what she told Dr Mutasim: "Q. I understand that and I don't in any way challenge you on that. But what I'm asking about is what you told Dr Mutasim on 21 May 2012. Can you recall the detail of that now or now? A. I believe I said this before, when I said I was having pain from work; it was making it worse; and my hips and back were bothering me. But I do not recall the exact words that I used, or I don't think I can give you much more on that appointment."
She was then asked about her meeting with Dr Stening: "Q. What I'm suggesting is that you did not, neither you nor your mother said anything about back pain when Dr Stening asked that initial question and one of you, either you or your mother volunteered information about what your problem was? A. No. Q. You disagree? A. Yes, I disagree."
Her evidence continued: "Q. I'm just asking now specifically about the back so I don't need the full account of everything but what's your best recollection, first of all, whether it was you or your mother, you say it was your mother speaking? A. Yes, I have said that mum was speaking. Q. And what do you recall her saying to Dr Stening at the beginning of this consultation about your back? A. About the pain I was having in my hips and my back from working, she explained all of that. Q. Try and use the words, rather than summarising that she explained all of that about the pain in your hips and back? A. I do not know the words that she used. Q. It's possible, isn't it, that what she described at the time, was that in your last six months that you'd begun working as a childcare worker you'd developed recurrent pain around both hips and it was worse on the left than the right and nothing more than that? A. No."
Hailee Williams agreed that on 20 June 2012 Dr Stening said something to the effect of getting up and down from a squatting position and lifting kids was likely to aggravate her problem and that for the time being she should try to avoid those activities. Her evidence continued: "Q. What you said yesterday was that your pain was there from early 2012 but it got worse in March 2012 when you went to full time hours at Kindalin, do you recall telling us that? A. Yes. Q. And that you said in about May 2012 you had right hip pain and back pain starting, do you recall saying that? A. Yes. Q. Thinking about the second half of 2012 from about July to the end of the year, do you say that by then your back pain was constant? A. Yes. Q. Do you say that it had become much worse? A. Yes. Q. Do you say it was interfering with your activities, that is, in daily life and at work regularly? A. Yes, it was. Q. You indicated yesterday that your back pain, in the early part of 2012, was not constant, that is, it was worse with some activity but then was not so bad, do you recall giving that evidence? A. Yes. Q. So that do you say in the second half of 2012, that changed? A. Yes."
On 2 July 2012, Dr Stening gave Ms Williams a medical certificate placing restrictions upon her duties at work for three months. By October 2012, it had expired. However, by then her back pain was much worse, much more severe and much more constant. It became worse and worse in the second half of 2012.
Ms Williams saw Dr Stening for the second time on 3 December 2012. She said that she told Dr Stening that her bilateral hip pain and her back pain had got worse and was now constant and severe. She disagreed with the suggestion that neither she nor her mother said anything at all about back pain. She agreed that Dr Stening said words to the effect of "while I'm hoping you will grow out of your pain and it's due to apophysitis, I recommend you have an MRI scan of the left hip to see if there's something else going on to cause the pain".

Meigan Williams

Meigan Williams is Hailee Williams' mother. She gave evidence in the form of a statement dated 2 August 2019. Meigan Williams indicated that she had been shown the clinical records of the medical practitioners she has attended with her daughter about her hip and back pain and the clinical records of hospitals in which she has been treated in order to refresh her memory about dates and times of various relevant consultations.
Meigan Williams said that Hailee Williams started complaining of hip pain in 2009. She recalled taking her daughter to a general practitioner and being given a referral to Dr Stening. Meigan Williams said that she recalled Dr Stening "making a diagnosis" but does not remember what it was. She recalled that Dr Stening did not offer any treatments. Meigan Williams recalled that Hailee Williams complained to her of lower back ache towards the end of 2011 following her discharge from hospital for an unrelated condition. Sometime later she consulted Dr Mutasim who referred Hailee to Dr Stening for tenderness over her hip and the lumbar L4-5 region.
Hailee Williams was X-rayed at the Castlereagh Imaging at Penrith on 24 May 2012. They both attended Dr Stening's rooms on 20 June 2012 and took the X-ray with them. Meigan Williams said this: "68. Upon entering his rooms, I proceeded to describe why Hailee and I were there. 69. I did most of the talking. There was a conversation to the following effect: 'Dr Stening: What seems to be the trouble? Me: Hailee has had niggling hip and back pains off and on for a couple of years. You saw her a while back and said it was growth plates. I had her at a podiatrist and she wears orthotics. But she has started working in childcare and she was okay for a month or so but now her back and hip is getting worse. Dr Stening: What seems to cause it? Hailee: I get more hip pain and back discomfort when lifting the children and buckets of water. It gets worse when lifting a lot. Dr Stening: Where is the pain?' 70. I think he asked me about her job in childcare. I do not recall much about this topic. 71. I vaguely recall him saying something like 'lifting the children wouldn't be helping'. It is my recollection today that at no time during that consultation did Dr Stening physically examine Hailee. I have no image in my head of him doing so. 72. I recall observing Hailee standing up from a sitting position in front of his desk and turning slightly towards me as I was sitting in the chair to her left. I remember her placing her hands from her navel, around the right-hand side (as I looked at her) and back behind her towards her lumbar spine and saying, 'it hurts here and here'. To my recollection now, Dr Stening did not come around from his desk to see where Hailee was pointing. He did walk around behind her to get to the light board. 73. I handed Dr Stening the envelope containing Hailee's 24 May 2012 X-rays. I recall he put them onto the light box which was hanging on a wall. I recall him looking at each X-ray for a short time and moving on to the next one. I recall him pointing to one X-ray with his finger and saying something like, 'She is having trouble here in the growth plate'. At this time, he was point at something on the right-hand side of the picture on the light box. He then pointed to something on the left-hand side of the picture on the light box and said, 'If you compare both sides you can see where the difficulty is'. I could not work out the significance of what he was point at and I was sitting some distance away, but I took his word for it. 74. I do not have a recollection of seeing him reading an X-ray report, but he may have. 75. He also said: 'Dr Stening: This is a very common thing for girls (or children - I cannot now recall which word he used) of Hailee's age and it should right itself. It might take six months or so. Meigan: What else can be done? Hailee's in a lot of pain. Is there anything that can be done? Dr Stening: We could try giving her a cortisone injection into her hip. This is a steroid and it can be effective in many cases, but we cannot guarantee that it will work.' 76. I recall asking Dr Stening many questions about this condition, the level of pain she was experiencing and the impact on her and what can be done. Dr Stening said 'it should right itself and would take time, perhaps up to six months.
About a week later, Hailee Williams and her mother returned to Dr Stening for the cortisone injection into Hailee's "front left hip". They were told by Dr Stening to come back in six months if the pain persists.
Hailee Williams and her mother returned to see Dr Stening on 3 December 2012. Meigan Williams said this: "97. I recall taking Hailee to the rooms of Dr Stening on 3 December 2012. I do not precisely recall the time of that appointment. I recall being present during that consultation and again I did most of the talking. I vaguely recall a discussion to the following effect: 'Dr Stening: How have you been getting on? Hailee: The injection was okay and helped the hip pain for a couple of weeks. I have had trouble with the lifting at work. Me: What options do we have? Dr Stening: You could have another cortisone injection but as it did not provide lasting relief the first time, you are unlikely to get any benefit from a second treatment. Me: If a cortisone injection was not a viable option, what can be done to help Hailee's pain, as it was getting worse and it was affecting her life and work? Dr Stening: The X-rays did not show any abnormalities and Hailee's problems are likely to be her growth plates. This will resolve as she matures. Time will resolve the issue but in the interim Hailee should avoid, as much is possible, bending and lifting activities. Her job was not helping her.' 98. To the best of my recollection now, at no time, during that consultation did Dr Stening inspect and/or examine Hailee's hips, pelvis or back. To my recollection, she was not directed onto the examination table. It is my strong recollection she remained seated, with me, in front of Dr Stening's desk. 99. I recall again asking Dr Stening many questions about what else we could do for Hailee, what other options she had. I was looking for answers and asking a lot of questions. I felt I was not getting answers to my questions. 'Dr Stening: Physiotherapy could help, and I will refer you. We will get an MRI done and see what that shows up just to be sure'."
In about mid-December 2012, Meigan Williams contacted Dr Stening's rooms regarding Hailee's MRI results. Dr Stening called back later. She described the conversation as follows: "107. A conversation to the following effect (after exchanging pleasantries): 'Dr Stening: I've looked at the MR scan and there are no abnormalities revealed. So there is nothing structurally wrong and Hailee just has to wait for symptoms to resolve as she matures.' 108. I recall being surprised at the news. I was sure he would have found something wrong that would explain Hailee's symptoms. We went on: 'Me: Are you really sure there's nothing there? It doesn't make sense. Hailee is in real pain and it seems to be getting worse. Dr Stening: Yes. The MRI is normal. So is the X-ray. Her pain is likely caused by the growth plates, which is very common. It will sort itself out. Sometimes it takes longer than other times, but we'll just have to wait'."
Meigan Williams said that Dr Stening gave her no further advice about Hailee's condition or signs of deterioration. Meigan Williams did not see Dr Stening again in December 2012 and had no further contact with him until February 2013.
Meigan Williams said that on 13 June 2013, Dr Cree told her that Hailee's condition was "really a medical emergency" and that she could be rendered a paraplegic "within a matter of weeks" if she were not operated upon soon. Hailee was shortly thereafter taken to theatre for a lumbar spinal fusion and bone graft.

Cross-examination of Meigan Williams

Meigan Williams was asked about her daughter's consultation with Dr Mutasim. She was not prepared to accept the possibility that when she saw him with Hailee initially and described why they were there that she mentioned only hip pain but not back pain. Nor was she prepared to accept the possibility that in that consultation on 21 May 2012, back pain only came up for discussion at the end of the consultation after the examination of Hailee had been performed. She had it firmly in her mind at that time that Hailee had problems in her hips as well as her back.
With reference to the consultation with Dr Stening on 20 June 2012, Meigan Williams disagreed with the proposition that she did not describe to Dr Stening that Hailee was having any back pain. She reaffirmed the version of what occurred as described by her in paragraph 69 of her statement. She also disagreed that Dr Stening said that it looked like her daughter had suffered a recurrence of the condition that she had back in 2009. Meigan Williams recalled discussion about a cortisone injection but "absolutely disagreed" with the suggestion that Dr Stening said that getting up and down from the squatting position and lifting kids was likely to aggravate Hailee's problem or for the time being she should try to avoid those activities.
Meigan Williams also disagreed that during the second half of 2012 her daughter's main problem was her hip. Her hip pain was a constant problem and her back pain was intermittent. She said, "Hailee had good and bad days during that period of time, with both her hip and her back pain." She disagreed that Hailee's back was not a significant problem for her in the second half of 2012.
Paragraph 64 of her statement is in the following terms: "64. I recall on 24 May 2012 I took Hailee to Castlereagh Imaging in Penrith for her X-rays. I always read the X-ray referral and I have little doubt that I read it on this occasion. I gave the referral to the receptionist on arrival."
Meigan Williams was taken to that paragraph in cross-examination. Her evidence was as follows: "Q. Do you see in that you say in the second sentence, I always read the X-ray referral and I have little doubt that I read it on this occasion? A. Yes. Q. That's a reference to the X-ray that Hailee was sent for in May 2012 by Dr Mutasim? A. Yes. Q. In the same way, did you read the referral when she was sent for the MRI in December 2012? A. I don't recall doing that. Q. It's your practice to do it isn't it? A. It is my practice to read the reports that are put in the MRIs and in the X- rays, that is my definite practice. Q. Paragraph 64 doesn't refer to X-ray or radiology reports, it refers to referrals, do you agree with that? A. Yes. Q. If that's correct what's stated there, or did you intend in paragraph 64 to refer to the X-ray reports? A. I was referring to the X-ray reports. Q. We should correct the reference to referral to indicate that you meant X-ray reports? A. Yes. Q. You don't have a practice of reading referrals for imaging? A. No. Q. In this case though, had you, by the time you spoke to Dr Stening in December, had you actually received the report or not? A. Which report are you referring to? Q. Sorry, that was unclear. The report I'm referring is the MRI scan report for Hailee? A. The MRI report from my recollection was around 17 December when I had a phone call with Dr Stening. Q. By the time you had the discussion with him where he told you about the results, did you actually have the report? A. No, I don't believe I had the report. HIS HONOUR: Could I just interrupt? Q. At paragraph 64 of your first statement in the second sentence, you say I always read the X-ray referral and you go onto say, I gave the referral to the receptionist on arrival. Do I understand that following some questions from a few moments ago, that in the second sentence you want to change that to I always read the X-ray report? A. May I just clarify that paragraph 64 refers to 24 May 2012? I thought we were discussing December 2012. Q. All I wanted to know was, at paragraph 64, I agree you've isolated it in time in May 2012, I may have misunderstood but I thought from questions from Mr Downing you wanted to change the word referral in the second sentence to report? Did I understand that correctly? A. Yes. Q. Perhaps not a matter for me at this stage, but that doesn't seem to make any sense because you were on your way to the Castle Ray Imaging and would not at that stage have had a report, but merely a referral would you not? A. Yes, in that context that's correct. Q. When you say in that context, the change of the word referral to report, I have to indicate to the parties at paragraph 64 has led me to be confused, but I'm not running the evidence in this case and I'll simply note that that has confused me."
The fact that the referral dealt with Hailee Williams' hips and not her back was then further explored: "Q. You understood that was an MRI had been done confined to the left hip, correct? A. Yes. Q. Your concern at that point was that Hailee had significant problems not just in her left hip, but in her back? A. Yes. Q. That's your evidence isn't it? A. Yes. Q. Having been told now that the imaging that had been done of the left hip was clear, would you not have raised with Dr Stening your concern at the imaging of the back? A. I relied on Dr Stening of his expertise and his direction in Hailee's medical treatment and he assured us that it was the growth plates and that it would heal in time. Q. Do you think it's possible that in fact there was no discussion between you, Hailee and Dr Stening in December 2012 about the back? A. No."
Finally, on this topic, Meigan Williams gave this evidence: "Q. According to what Hailee was telling you, by December 2012, was the back pain as big a problem as the hip pain? A. Yes. Q. Surely, if that were the case, that is, if the back pain had been there for some time, that it was getting more constant, more severe, and it was as big a problem as the hip pain, you would have raised with Dr Stening at this point, your desire that there be some investigation of the back. A. As I said, I relied on Dr Stening to direct Hailee's medical treatment. When we raised the back pain with Dr Stening, we were told it was referred pain and that it was the hips and the growth plates. And that over time, they would heal. Q. What I'm suggesting to you is that it was only in the early months of 2013 that the back pain became a significant problem for Hailee, do you agree or disagree with that? A. I disagree with that."

Dr Fraser

At the commencement of the hearing, Dr Fraser made certain admissions. These were described in detail in Mr Downing's opening remarks. Some of what he said was to the following effect.
Even though the X-rays that Dr Fraser was asked to interpret and report on were not X-rays of Hailee Williams' lumbosacral spine, but were X-rays of her hips and pelvis, he accepts serendipitously that they revealed a right sided pars defect that he failed to see or to report upon. Dr Fraser accepts that that amounts to a breach of duty: it should have been identified at the time and further X-rays of the lumbosacral spine should have been recommended. Dr Mutasim took a history from Hailee Williams on 21 May 2012 of hip pain as well as back pain but in his referral letter to Dr Fraser did not seek imaging of her lumbosacral spine. His request was limited to her hips and pelvis. Dr Fraser's report to Dr Mutasim dated 24 May 2012 was as follows: "PELVIS AND HIPS Findings: No abnormality was seen in the bony pelvis. The geometry of both hip joints is normal with no evidence of an arthropathy or other bony abnormality. There is no periarticular calcification. The appearance of the symphysis is normal and the sacroiliac joints normal."
Nor did Dr Mutasim make any reference at all to back pain in the letter that was sent to Dr Stening. There is no agreement about Hailee Williams' precise presentation to Dr Mutasim or whether it was limited to her hips.
Dr Fraser also accepts, consistently with his admission, that if further specific X-ray imaging of the lumbosacral spine had been done, it would have led, in either June or December 2012, to a diagnosis of spondylolisthesis. There is considerable disagreement among the experts as to the precise grade of that spondylolisthesis, in part because there was no lumbosacral X-ray, CT scan or MRI performed at the time.
Dr Fraser's concession was appropriately in line with his evidentiary statement dated 5 August 2019, portion of which was as follows: "25 I am aware that in this matter, the plaintiff has served expert reports from Dr John Earwaker, radiologist, in which he reviewed the 24 May 2012 x-ray images of the pelvis and hips and reported on them. I am aware that Dr Earwaker identified a right-sided pars defect in the oblique projection of his right hip) and a hypoplastic bifid neural arch of what he took to be the fifth lumbar segment. Further, I am aware that Dr Earwaker has indicated his opinion that I departed from competent practice as expected by peer professionals in 2012 in not identifying and reporting the right-sided pars defect and the hypoplastic bifid neural arch. 26 As I have stated above, it is correct that when I reviewed the 24 May 2012 x-ray images, I did not identify the right-sided pars defect (which can be seen on the edge of the lateral/oblique projection of the right hip). As per my usual practice, if I had identified it, I would have mentioned it in my report. 27 While I can't now recall my precise thought process in reviewing the images and preparing my report, as per my usual practice, I would have been aware of the clinical history of pain in both hips and the lower lumbar region. However, as I have stated above, I would also have been aware that notwithstanding that history, the referring GB, Dr Mutasim, sought imaging with ultrasound and x-rays of the hips and pelvis only, not of the lumbar spine. It seems likely to me that because Dr Mutasim only wanted imaging done of the hips and pelvis, that was my primary focus in assessing the x-ray films (with the process of assessing the films being two-staged, as I have described above. 28 If I had identified the right-sided pars defect on 24 May 2012 then, as per my usual practice, I would have made a recommendation for further x-ray imaging of the lumbar spine and possibly, a CT scan of the lumbar spine."
It was in these circumstances that Dr Fraser's cross-examination was limited to the matters that are now considered.

Cross-examination of Dr Fraser

Dr Fraser gave the following evidence: "Q. Is it fair to say that you made a decision, although there'd been a clinical history of pain in the lower lumbar, you made a decision not to X-ray that part of the body? A. There was no request to X-ray the lumbar spine. Q. That might be so, but can you say today whether you turned your mind to the clinical history of pain in the lumbar spine? A. I did not, as the request was for X-ray and ultrasound of the hips, that's what was done. The lower lumbar is second line and certainly would have been very much the second or third raised point to attend to. If I may say, had Dr Mutasim wanted the lumbar spine X-ray, he would have asked for it, he didn't Q. Did you in your position as a radiologist have a view given as there was a history of pain in the lumbar spine, that it might be desirable to take an X-ray of the lumbar spine? A. No, lumbar pain is a very common issue, it was not requested, it was not done."
The cross-examination of Dr Fraser was necessarily limited having regard to his admission of breach of duty and his associated acceptance that if further specific X-ray imaging of the lumbosacral spine had been done, it would have led, in either June or December 2012, to a diagnosis of spondylolisthesis.

Conclusions concerning Dr Fraser's liability

Dr Fraser's failure to report the existence of a pars defect in his 24 May 2012 report misled Dr Stening. His evidence about this, effectively mirrored in interrogatories administered by Hailee Williams and answered by Dr Stening on 31 October 2016, is set forth at paragraph 139 of his evidentiary statement as follows: "139. If any of the imaging of Ms Williams' lumbo-sacral spine identified a grade I-III spondylolisthesis, then as per my usual practice, I would have taken the following steps: (i) told Ms Williams that she would need to return for further review and clinical assessment in 3 months' time and then at 3 monthly intervals; (ii) told Ms Williams that she would need to have serial X-rays at 3 monthly intervals to look for evidence of any progression; (iii) told Ms Williams that she should not engage in any high impact sports or activities; (iv) told Ms Williams that she should return sooner than 3 monthly if she developed symptoms in the lower limbs like weakness, numbness, tingling or altered sensation, including urinary or faecal incontinence. Further, that it was extremely important that she come back as soon as possible in those circumstances because she might need urgent treatment; (v) told Ms Williams that she needed to see a paediatric spinal sub-specialist for opinion and further management and provided her with a referral to a paediatric spinal sub-specialist."
In this respect, Hailee Williams relies upon Dr Stening's evidence in support of her case against Dr Fraser to establish that Dr Fraser's admitted breach caused her loss as the result of the way that it misled her then treating orthopaedic specialist. Dr Stening was understandably not cross-examined to suggest that his evidence in this regard was subject to challenge. Indeed, as Hailee Williams' submissions emphasise, Dr Stening went further in his evidence to indicate that he would also have recommended core strengthening exercises, a suggestion that accords with other expert evidence in these proceedings.
Dr Stening relied on the X-ray report from Dr Fraser and, although Dr Stening subsequently provided Hailee Williams with a medical certificate for restricted work duties, he did not immediately proceed to arrange for or offer alternative conservative, non-operative clinical management in the way that the experts agree would have been appropriate in mid-2012. Hailee Williams was thereafter left in a vulnerable position with an undiagnosed spondylosis or spondylolisthesis that exposed her to a risk of harm if left untreated. Her case against Dr Fraser is that if he had identified and reported on the pars defect in June 2012, that would have led to further inquiries which, in turn, would have revealed the state of Hailee Williams' spondylolisthesis.
Dr Fraser denied that his alleged negligence was a necessary condition of the occurrence of Hailee Williams' harm so that nothing he did or failed to do caused her loss as a matter of fact: s 5D(1)(a) of the Civil Liability Act 2002. Moreover, he denied pursuant to s 5D(1)(b) of the Act that it is appropriate for the scope of his liability to extend to the harm which Hailee Williams alleges she suffered.
Breach of duty having been admitted by Dr Fraser, it is convenient to defer consideration of the s 5D issues that relate to him, and the question of damages, if relevant, to later in these reasons.

Dr Stening

A significant contest between Hailee Williams and Dr Stening is the question of whether Dr Stening was ever provided with a history from Ms Williams' general practitioner Dr Mutasim that included a reference to low back pain. An associated, and even more significant, contest concerns whether Hailee Williams or her mother ever complained of back pain to him or otherwise drew it to his attention during any consultations with him.
Dr Mutasim referred Hailee Williams to Dr Stening on 3 June 2012. His letter of that date to Dr Stening relevantly says this: "Thank you for seeing Miss Hailee Williams aged 18 yrs for opinion and continuing management. Presenting Problem: Pain in the left ASIS for last 2 months. Has had similar pain in 2009."
Following his consultation with Hailee Williams on 20 June 2012, Dr Stening wrote to Dr Mutasim as follows: "Thank you for your referral. Hailee's 18 years of age now. The last 6 months she has started working as a childcare worker and this has corresponded to developing recurrent pain around the anterior aspect of both hips, left worse than right. Several years ago she consulted with me and had similar symptoms and a diagnosis of iliac apophysitis. On examination she had pinpoint tenderness over the anterior superior iliac spine, left greater than right. There was also discomfort on hyperextension of the hip and on Ely test. IMPRESSION It looks as though she's developed recurrence of this iliac apophysitis. I've recommended that she have injections of cortisone into the area and then a period of rest for at least 3 weeks afterwards, abstaining from sports etc. It also would be wise for her to move from her current duties to one where she doesn't need to repetitively lift children as this may have contributed to the onset of her symptoms. I'll keep you informed of further developments as they transpire."
The terms of that letter significantly framed Dr Stening's evidence-in-chief. However, his cross-examination was largely informed by a different version of the facts upon which Hailee Williams relies.
Dr Stening administered a cortisone injection two days later. He reported to Dr Mutasim by letter dated 22 June 2012 as follows: "I injected Hailee's anterior superior iliac spine region with two ampules of Celestone Chronodose and local anaesthetic under sterile technique today. Hopefully this will alleviate her symptoms satisfactorily over the next week or so. I'll see her to inject the other side if she gets a good response from this injection today."
Dr Stening's statements of evidence are dated 15 August 2019 and 29 July 2019. It becomes necessary, despite its length, to reproduce a large portion of his first statement, relevantly as follows: "2009 14 Hailee Williams was first referred to me by her general practitioner, Dr Amin Mutasim, via a letter dated 21 November 2009. That letter is located at page 45 of my patient records for Hailee Williams. 15 I first saw Hailee Williams on 21 December 2009. I can't now recall if she attended alone or with her mother. At that time, as per the usual practice in my rooms, my receptionist would have given Hailee Williams and/or her mother a Patient Information Sheet to complete. A copy of the Patient Information Sheet for Hailee Williams is located at page 44 of my patient records for her. 16 As per my usual practice when seeing a new patient, when Hailee Williams first attended on me on 21 December 2009, I would have read the referral letter I had received from Dr Mutasim, taken a history from Ms Williams, conducted a physical examination and reviewed any imaging that was available to me. I may also have obtained some history from her mother if she was present. I would also, as per my usual practice, have concluded the consultation by discussing with Ms Williams (and her mother, if she was present) my views as to her diagnosis and my recommendations as to management and treatment. 17 My letter to Dr Mutasim dated 21 December 2009 (which is located at page 43 of my patient records for Hailee Williams) contains a summary of my interpretation of Dr Mutasim's referral letter, the history I obtained in respect of Hailee Williams, the physical examination I conducted, my review of Hailee Williams' imaging (which I assume she brought with her on 21 December 2009) and my views as to diagnosis and management/treatment. 18. Ms Williams' presentation on 21 December 2009 was with pain in the left anterior superior iliac spine (ASIS), though it is evident from my letter of 21 December 2009 that the history I got on that day was that while the symptoms had developed about 6 months' ago, just before Ms Williams ran in the City to Surf, they had completely resolved while Ms Williams was resting over the last 6 to 8 weeks. 19 In layman's terms, the ASIS is the anterior superior iliac spine that is located at the anterior or front aspect of the hip. 20 Where a teenage patient presents with ASIS pain, I have a usual practice in terms of the examination I perform. I have no doubt that during the 21 December 2009 consultation with Ms Williams, I examined her as per my usual practice. 21 First, I would have observed Ms Williams walking informally, as she came into the consultation room, to see if I could identify any abnormality. On occasions, if I don't think I get enough information through that informal observation, I ask the patient to walk around the room for me, so that I can formally observe the patient's gait. I can't now recall whether I requested that Ms Williams walk for me so that I could observe her gait during the 21 December 2009 consultation. 22 Secondly, where the presentation is of a teenage patient with ASIS pain, I initially have the patient lie supine on the examination bench and I palpate the pelvis by pressing over the iliac crests. That was where I understood Ms Williams had pain. 23 I then spring the pelvis, pressing down on the iliac crests and feel over the greater trochanters (where female teenage patients often have symptoms with hip pain). 24 I next move the hips around, flexing up and rotating in to look for any discomfort. I hold one leg up and then flop it out to the side while pressing down on the other leg in order to stress the sacroiliac joint. 25 Thirdly, I then turn the patient over prone in order to stretch out the front of the hips and see whether it might aggravate the patient's pain or discomfort coming from the iliac crest. I do that by hyperextending the hip. I next perform an Ely test by flexing the knee while the patient is lying prone. The Ely test assesses for rectus femoris spasticity/tightness. In layman's terms, the idea is to stretch the muscles arising from the anterior superior/inferior iliac spine. 26 During the Ely test, if a patient's bottom goes up while the knee is being bent, it indicates a tight rectus femoris muscle. It can also indicate that there is irritation at the origin of the inferior iliac spine, which can be a source of apophysitis. 27 It is evident from my letter of 21 December 2009 that I found nothing abnormal on examination, with no specific pain response. Further, it is evident from my letter of 21 December 2009 that I concluded that Ms Williams was suffering from a traction-type apophysitis of the ilio-tibial band/sartorius origin. 28 As per the letter of 21 December 2009, and my usual practice, I would have explained to Ms Williams, and her mother if present, my diagnosis in layman's terms. While I can't now recall the precise words I used, I would have said words to the following effect: - 'Hailee has pain arising from where the muscles arise from the anterior superior iliac spine, that is the bony prominence at the front of the hip. At her age there is a growth plate in this area that can become irritable. We call this apophysitis. Children generally grow out of this as the growth plate fuses.' 29 I did not arrange any follow up with Ms Williams after 21 December 2009. 20 June 2012 30 By a letter dated 3 June 2012, Dr Mutasim referred Ms Williams back to me for further opinion and management. A copy of Dr Mutasim's 3 June 2012 letter is located at page 40-41 of my patient records for Ms Williams. 31 Following on from the 3 June 2012 referral by Dr Mutasim, I first saw Ms Williams on 20 June 2012. A copy of my letter back to Dr Mutasim of that date, which stands as my clinical record of the consultation, is located at page 38 of my patient records for Ms Williams. 32 I can't now recall whether Ms Williams attended alone or whether her mother attended with her on 20 June 2012. Ms Williams was 18 years of age by that time and many patients of that age still attend with their parents or guardians. 33 By 20 June 2012, it was roughly 2½ years since I had last seen Ms Williams. Given the time period involved and the fact that it was a new referral, I would have treated the 20 June 2012 appointment as an initial review and thus allocated 20 minutes for it. I can't now recall precisely how long the appointment ran for. 34 As per my usual practice, when I saw Ms Williams on 20 June 2012, I would have read the referral letter of 3 June 2012 from Dr Mutasim. I would have seen from it that he described her presenting problem as pain in the left ASIS for the last 2 months and that it was similar pain to what she had presented within 2009. 35 On seeing that reference to Ms Williams' 2009 presentation, as per my usual practice, I would have read through my letter of 21 December 2009, in order to refresh my memory as to the nature of Ms Williams' presentation at that time. 36 As per my usual practice, I would have taken a history from Ms Williams on 20 June 2012. That is, having seen that the referral from Dr Mutasim was for pain in the left ASIS for the last 2 months, I would have asked her questions to the effect of the following: 'What symptoms do you have? Is the pain radiating anywhere? What relieves it and what aggravates it?' 37 The history I obtained is as set out in the first paragraph of my letter of 20 June 2012. I can't now recall whether that came from Ms Williams or her mother, if she was present. 38 Specifically, the history I obtained was that over the last 6 months, after Ms Williams had begun working as a child care worker, she had developed recurrent pain around the front of both hips, with the pain on the left worse than the right. 39 I am aware that in her statement, Ms Williams says certain things about what occurred at the 20 June 2012 consultation. At paragraphs 84-85 of Ms Williams' statement, she says that her mother was present on 20 June 2012 and that her mother did most of the talking to me. Ms Williams says that she recalls not speaking a lot to me. 40 As I have stated above, I can't now recall whether Ms Williams' mother was present on 20 June 2012. She may well have been. I also can't now recall how much Ms Williams' mother provided the history to me, as opposed to it coming from Ms Williams directly. 41 On 20 June 2012, because Ms Williams was presenting with pain at the front of the hips (bilateral ASIS pain) I would have examined her, as per my usual practice, as I have described it at paragraphs 20-26 above. 42 As per my 20 June 2012 letter, when I examined Ms Williams in 2012, I found that she had pinpoint tenderness over the bilateral ASIS, with the tenderness greater on the left than the right. That indicates that when I palpated over the ASIS, she reported pain on both sides, though the pain was worse on the left than the right. 43 Further, my 20 June 2012 letter indicates that when I examined Ms Williams prone, she described discomfort both when I hyperextended her hip and when I performed the Ely test. That discomfort is suggestive that the sartorious or quadriceps muscle is being stretched (and thus seemed to be the cause of Ms Williams' pain). 44 I am aware that in her statement, Ms Williams says certain things about the examination I performed on 20 June 2012. In paragraph 91, Ms Williams describes me examining her while she was lying supine. As I have indicated above, I would have examined her lying supine as part of my usual practice. However, Ms Williams further states that she recalls lying on her back and me raising her legs up and down while they were straight. 45 I don't now recall the fine details of the examination I performed on 20 June 2012, but doing straight leg raising is not part of my usual practice when it comes to examining a teenage patient presenting with ASIS pain. However, it is possible I had Ms Williams, while lying supine, lift her legs up while I pushed down against them. I sometimes do that with patients presenting with ASIS pain when I am concerned about hip pathology. If there is pain on straight leg raising while I push down, it can indicate that the pain is emanating from the hip joint or anterior to it. 46 I am also aware that in paragraph 92, Ms Williams says she has no picture in her mind of lying on her front (prone) during the appointment. As I have indicated above, it is my usual practice to examine the patient lying prone where a teenage patient presents with ASIS pain and my 20 June 2012 letter to Dr Mutasim confirms that I did so with Ms Williams, in that I describe hyperextension of the hip and performing the Ely test. 47 Ms Williams also says in paragraph 92 of her statement that she doesn't have any recollection of me asking her to adjust her clothes or of removing her clothes or shoes. Ms Williams was a female patient of 18 years of age as at 20 June 2012. With such patients, I try to be conscious of their sensitivities about disrobing and I often don't ask them to totally disrobe or even partially disrobe, unless I feel it is necessary. 48 Where I examine a patient as I have described examining Ms Williams above, I would not need to see the skin, so I may well not have asked her to remove her clothes or adjust her clothes. 49 I am aware that Ms Williams' mother Meigan Williams says in her statement, at paragraph 71, that her recollection is that I did not perform a physical examination of Hailee on 20 June 2012. That is incorrect. I examined Ms Williams as I have described above and I referred to that examination in my letter to Dr Mutasim of 20 June 2012. 50 On the basis of my review of Dr Mutasim's 3 June 2012 referral letter, my review of my earlier 21 December 2009 letter to Dr Mutasim about Ms Williams, the history I obtained from Ms Williams or about her on 20 June 2012 and my examination of her, my working diagnosis on 20 June 2012 was a recurrence of Ms Williams' iliac apophysitis. In accordance with my usual practice, my next step on 20 June 2012 was to review Ms Williams' imaging. 51 I can't now recall specifying reviewing Ms Williams' imaging on 20 June 2012. Further, my letter of 20 June 2012 does not specifically refer to the imaging. However, I am aware that Ms Williams (at paragraph 87 of her statement) says that she has a mental picture of handing me a large envelope from the radiologist, which contained x-ray films and what she understood to be an x-ray report. While I don't have a specific recollection of Ms Williams handing me the imaging, patients do normally bring their imaging to consultations with me. 52 I am also aware that contained within my patient records for Ms Williams are copies of Dr Fraser's report on the x-ray of the pelvis and hips dated 24 May 2012 (at page 42 of my patient records for Ms Williams) and a version of Dr Mutasim's referral letter of 3 June 2012 which includes as part of it Dr Fraser's report on the x-ray of the pelvis and hips of 24 May 2012 and his report on the ultrasound of both hips of 31 May 2012 (located at pages 40-41 of the patient records for Ms Williams). 53 That version of the referral letter from Dr Mutasim, containing Dr Fraser's reports, has a fax header indicating that it was faxed from the Richmond Marketplace Medical Centre at 12.26pm on 20 June 2012. While I can't now recall the specific circumstances of the fax coming in, it seems very likely that I had the imaging reports from Dr Fraser when I saw Ms Williams on 20 June 2012. As per my usual practice, I think it likely I reviewed the x-ray images of Ms Williams' 24 May 2012 x-rays of the pelvis and hips and also read the report from Dr Fraser in respect of those x-rays and also the 31 May 2012 ultrasound of the hips. 54 I would not, as per my usual practice, have reviewed the ultrasound films of Ms Williams' hips. My practice has always been that I don't look at ultrasound imaging, and instead rely on the radiologist's report, because my view is that to be clinically meaningful, you need to review the ultrasound in real time, rather than looking at static images. 55 While I can't now recall my specific thought process on reviewing the x-ray films and Dr Fraser's report on the x-ray films and ultrasound films, it is evident from my 20 June 2012 letter that I did not see anything that altered my working diagnosis of bilateral iliac apophysitis. If I had seen some particular abnormality on the x-ray images, particularly something that suggested a different diagnosis, I would have referred to it in my letter to Dr Mutasim of 20 June 2012. 56 More particularly, I did not identify a pars defect or any other defect of the spine on my review of the x-ray images. 57 I cannot now recall whether I identified a spina bifida occulta on reviewing the x-ray films on 20 June 2012. While my letter to Dr Mutasim of 20 June 2012 does not refer to a spina bifida occulta, it is unlikely I would have referred to the spina bifida occulta in the letter even if I saw it on my review of the x-rays. That is because my usual practice at the time, in reporting to a referring doctor regarding a patient presenting as Ms Williams did, was to regard a spina bifida occulta as an incidental finding. 58 I am aware that Ms Williams (at paragraph 87 of her statement) says that she has a recollection of me reviewing what she understood to be the x-ray report on 20 June 2012, though she has no recollection of me looking at the x-ray films on a light box. On the other hand, Meigan Williams, say that she recalls me looking at the x-rays on a light box (at paragraph 73 of her statement). 59 I have a light box in each of my consultation rooms. My usual practice is that wherever x-ray films are available, I review them on the light box. Consequently, on the assumption that Ms Williams on the assumption that Ms Williams or her mother gave me the x-ray images on 20 June 2012, I would, as per my usual practice, have reviewed them. That would have meant putting them on a light box and looking at them. I cannot think of any reason why I would not have looked at the x-ray images in Ms Williams' case. 60 I am also aware that Ms Williams says she recalls me writing on a sheet of paper on my desk during the 20 June 2012 consultation (paragraph 87 of her statement). I refer to paragraphs 11-12 above where I have described my usual practice when it comes to dictating letters to referring doctors. I can't now recall whether I wrote some brief handwritten notes on a blank piece of paper during the 20 June 2012 consultation. It is possible, though most often, I don't make any handwritten notes as I dictate the letter to the referring doctor as soon as I finish the consultation. If I did make some brief handwritten notes, I would have used them as a memory aid when I dictated the letter to Dr Mutasim later on 20 June 2012 or on the following day and I would have disposed of the notes immediately after dictating the letter. 61 As per my letter of 20 June 2012, my conclusion on 20 June 2012 was that Ms Williams had developed a recurrence of iliac apophysitis, with it being bilateral in June 2012, whereas it had been left sided only in December 2009. Further, by June 2012, the iliac apophysitis was worse on the left than on the right. 62 Also, as per my 20 June 2012 letter to Dr Mutasim, I recommended to Ms Williams on that day that she undergo treatment in the form of injections of cortisone into the ASIS, followed by a period of at least 3 weeks' rest. 63 I can't now recall the precise words I used in discussing my diagnosis and recommendations as to treatment and management on 20 June 2012. Based on my usual practice in terms of how I speak to patients about pain related to iliac apophysitis and the contents of my letter, I would have said words to the following effect: 'It looks like you've suffered a recurrence of the condition you had back in 2009. That is, you are getting pain around the area of the pelvis where the muscles arise. I think we should try some cortisone injections and we'll start with the left hip, where you have more pain, and see how you go after that. After the injection, you'll need to have a minimum 3 weeks of rest, where you don't do any strenuous activities like sports. I am hopeful that the pain will settle over time. If the pain becomes more constant, if the type of pain changes or if you experience pain at night, you should come back and see me.' 64 I am aware of what Ms Williams says I advised her on 20 June 2012. In relation to what she asserts in paragraph 93 of her statement, while I can't recall the precise words I used, I may possibly have said words to that effect. 65 In relation to what Ms Williams says I discussed with her mother about cortisone injections in paragraph 94 of her statement, I can't now recall the precise words used, but I may well have said words to the effect of those attributed to me. 66 I am aware that in her statement (at paragraph 100) Ms Williams says that I definitely did not say anything to her in June 2012 about not going to work or being on specific restricted duties and limited lifting tolerances. More particularly, I am aware that Ms Williams says that she has recently seen my letter to Dr Mutasim of 20 June 2012 and denies that I gave her advice about avoiding work or changing jobs, as per the last paragraph of the letter. 67 Based on the contents of my letter of 20 June 2012, the diagnosis I had arrived at of iliac apophysitis, the recommendation I made of cortisone injections and my usual practice in terms of how I speak to patients about pain related to iliac apophysitis, I think it very likely I said to Ms Williams words to the following effect: 'Getting up and down from the squatting position and lifting kids is likely to aggravate your problem. For the time being, you should try to avoid those activities.' 68 I can't now recall whether I said anything further specifically about changing positions or her work duties long term. Because my diagnosis as at 20 June 2012 was iliac apophysitis and I remained hopeful that it would resolve over time, I think it more likely I would have said something about avoiding particular activities for the time being, rather than about a long term change in position or work duties. 69 I am aware that Ms Williams alleges that by June 2012, she was experiencing pain in her back as well as pain in her hips (paragraph 77 of her statement) and further, she alleges that by June 2012, she was taking daily Voltaren and Panadol tablets at work for her back and hip pain (paragraph 83 of her statement). Further, I am aware that Ms Williams alleges that she demonstrated to me that she had pain across her lower back when she saw me on 20 June 2012 (paragraph 90 of her statement) and she also appears to raise as a possibility that she described back pain to me with words on 20 June 2012 (paragraph 90 of her statement). 70 Further, I am aware that Meigan Williams claims in her statement (at paragraph 69) that she said to me on 20 June 2012 words to the effect that Hailee had been suffering niggling hip and back pains off and on for a couple of years and that the hip and back pain was getting worse after she started working in childcare. She also claims (at paragraph 72 of her statement) that Hailee demonstrated to me where her back pain was. 71 While I can't now recall what words Hailee Williams or Meigan Williams used on 20 June 2012 to describe Hailee's symptoms or whether Hailee may have demonstrated the areas where she had symptoms in some manner, I am able to say what I would have done had Ms Williams or her mother described back pain or had Hailee demonstrated back pain on 20 June 2012. I had a usual practice in terms of what I would do where a teenage patient with ASIS pain complained of or demonstrated back pain, or where a parent reported back pain for the patient, which I would have followed in Ms Williams' case. 72 First, if back pain was described or demonstrated to me, I would have referred to it in my letter back to her GP, Dr Mutasim, as the referring doctor. That is because back pain was a symptom that had not been referred to in the referral letter to me and I would thus have treated it as a new symptom. Further and significantly, back pain is a fairly unusual complaint in a teenage patient, and it can be indicative of a range of conditions, some benign and some serious. I would regard back pain in a patient presenting as Ms Williams did on 20 June 2012 as a matter of some significance and I would therefore have referred to it in the letter back to the referring doctor. 73 Secondly, if I'd received a complaint or demonstration of back pain on 20 June 2012, I would have conducted a specific examination of the whole spine. More specifically, I would have had Ms Williams stand, I would have had her adjust her clothing so that her spine was exposed, and I would have had her extend, laterally flex and rotate the lower back. I would have specifically observed her lower back looking for any evidence of muscle spasm. 74 Further, as per my usual practice, I would have palpated the lower back to see if there was a step and I would have looked at the sagittal profile of the pelvis. I would also have examined the legs looking for any evidence of tight hamstrings. 75 Further, as per my usual practice, I would have done a neurological examination of Ms Williams, in order to test the power and sensation in the legs. Depending on the results, I may have moved to do a more specialised neurological examination, checking her reflexes, performing a Babinski test and checking straight leg raising for any evidence of radiculopathy. 76 Finally, as per my usual practice, I would, as part of my examination, have checked Ms Williams' abdominal reflexes in order to see if they were symmetrical (as asymmetrical reflexes can be a sign of occult intra-spinal pathology such as a syrinx). 77 Had Ms Williams complained of or demonstrated back pain on 20 June 2012 or had her mother described it, I would have referred in my letter back to Dr Mutasim not only to the fact of the complaint or demonstration of back pain, but to the results of my examination of her back. Even if Ms Williams' examination of the lumber and thoracic spine was normal, I would at least have referred to the fact of the complaint of or demonstration back pain and of my examination revealing no abnormality. 78 Thirdly, if I'd received a complaint of or demonstration of back pain on 20 June 2012, I would have, as per my usual practice, sent Ms Williams for x-rays of the lumbo-sacral spine. In particular, I would have ordered AP/lateral/oblique views of the lumbo-sacral spine. As at 20 June 2012, I only had imaging of her hips and pelvis. In a teenage patient with back pain, I would have wanted to obtain specific imaging of the lumbo-sacral spine to see whether there may be some abnormality causing her symptoms. 79 My letter to Dr Mutasim of 20 June 2012 contains no reference to any complaint of or demonstration of back pain, no reference to any examination of the back and no reference to me referring Ms Williams off for further x-rays of the back. Because there are no such references, I say that Ms Williams did not complain of or demonstrate back pain to me on 20 June 2012 and nor did Meigan Williams describe Hailee as suffering from back pain. 22 June 2012 80 I next saw Ms Williams on 22 June 2012, for the purposes of the cortisone injection into the left hip. Due to the passage of time, I can't now recall whether Ms Williams attended on her own for this consultation or whether she also had her mother with her. I'm aware that in their statements, Ms Williams and Meigan Williams allege that Meigan Williams accompanied Ms Williams on 22 June 2012. I don't dispute that this may be so. 81 I sent a letter to Dr Mutasim on 22 June 2012 (which is located at page 37 of my patient records for Ms Williams). In the letter, I confirmed that I injected 2 ampoules of Celestone Chronodose and local anaesthetic into Ms Williams (left) ASIS. I further noted that I was hopeful this would alleviate her symptoms satisfactorily in the next week or so and that I planned to see Ms Williams to inject the other (right) ASIS if she got a good response from the injection. 82 At paragraph 97 of her statement, Ms Williams sets out her recollection of a discussion she says she heard between me and her mother on 22 June 2012. Further, at paragraph 99 of her statement, she sets out her recollection of advice she says I gave her at the time of the injection. At paragraph 88 of her statement, Meigan Williams claims that I said Hailee should come back in 6 months if her pain persisted. 83 While I can't now recall the precise words I used in speaking to Ms Williams and/or her mother on 22 June 2012, I don't dispute that I may have said words to the effect of those attributed to me by Ms Williams at paragraphs 97 and 99. I think it unlikely I would have said that if Hailee's pain persisted, she should come back to see me in 6 months, as Meigan Williams claims. Rather, I think it likely, as per my usual practice, I would have said words to the effect of: 'If you get a good result from this injection, I'll do an injection on the other side. Please let me know how you go. If the pain becomes more constant, if the type of pain changes or if you experience pain at night, you should come back and see me'. 2 July 2012 84 At page 36 of my patient records for Ms Williams, is a copy of my 22 June 2012 letter to Dr Mutasim on which there is a handwritten annotation added. On reviewing the handwritten annotation, I recognise it as a note made by my secretary. Further, it appears to be a note of a telephone call received from Ms Williams on 2 July 2012, some 10 days after I injected her left hip with 2 ampoules of Celestone Chronodose. The handwritten annotation reads as follows: '2/7 PT had no relief with inj Pt requested a M/C for work to state no lifting - or restricted lifting (if so what are they) for six months. I can write cert if you like. (advised her to wait a little longer for result on injection)' 85 Also within my patient records for Ms Williams, at page 35, is a Medical Certificate dated 2 July 2012 filled in in my handwriting and signed by me, which I assume was provided to Ms Williams. It certifies her as fit for light duties from 2 July 2012 to 2 October 2012 on the basis of 'Tendonitis Hips'. It also indicates a restriction on her duties in the form of 'no lifting or repetitive squatting and lift from this position'. 86 While I cannot now recall being informed by my secretary of a call being received from Ms Williams on 2 July 2012 or creating the medical certificate for her, it appears, based on my review of the documents and my knowledge of the usual practice we adopted in my rooms where a patient rang up asking for a medical certificate, that Ms Williams rang up my rooms and spoke to my secretary, indicating that she had received no relief from the injection to the left hip and requesting a medical certificate for work to either exempt her from lifting or to certify her as fit for restricted lifting only. 87 As per the usual practice that was adopted in my rooms, I have no doubt that my secretary informed me of the call from Ms Williams, informed me that she described having received no relief from the injection and informed me that Ms Williams wanted a medical certificate for work to either exempt her from lifting or to certify her as fit for restricted lifting only. It appears from the note made by my secretary that she was unsure as what restrictions, if any, might be placed on lifting for Ms Williams and wanted to obtain my view in that regard. 88 Further, on review of the annotated letter of 22 June 2012 and the Medical Certificate dated 2 July 2012, I have no doubt that I told my secretary that I would write up a Medical Certificate and that I subsequently gave it to her, with a request that it be provided to Ms Williams. It also appears from the handwritten annotation on the letter that I told my secretary to convey to Ms Williams that she should wait a little longer for a result from the injection to the left hip. 89. On review of the Medical Certificate I signed on 2 July 2012, it is evident that I certified Ms Williams as being unfit for lifting or repetitive squatting for a 3 month period from 2 July 2012 and that I also certified that she was to not lift from the squatting position. 90 It is also evident from the Medical Certificate that I was certifying Ms Williams as fit for restricted duties on the basis of her having tendonitis of the hips. If I had been provided any information to suggest that she had back pain through the communication I had with my secretary on 2 July 2012, I would have requested that Ms Williams come in for a further review and I would have specifically referred to the back pain in her Medical Certificate. As I have stated above, back pain is a fairly unusual complaint in a teenage patient and it can be indicative of a range of conditions, some benign and some serious. 3 December 2012 91 Ms Williams returned to see me on 3 December 2012. I can't now recall whether she attended alone or in the company of her mother. I sent Dr Mutasim a letter dated 3 December 2012 in respect of my consultation with Ms Williams on that day. A copy of the letter is located at page 34 of my patient records for Ms Williams. 92. When I saw Ms Williams on 3 December 2012, as per my usual practice, I would have looked at my existing records for her (looking in particular at the June 2012 records). I would have reminded myself through reviewing the earlier records that Ms Williams had had an injection of cortisone into the left ASIS on 22 June 2012. As per my usual practice, I would have asked her on 3 December 2012 how she was going. I would have asked her questions with words to the effect of 'how are your hips? Did you get any relief from the injection?' 93 It is evident from the contents of my 3 December 2012 letter that Ms Williams told me (or possibly her mother told me, if she was present) that her hip pain had not completely settled despite the injection of cortisone and further, that she had obtained about a month's relief. 94 I am aware that Ms Williams alleges, at paragraph 117 of her statement, that she said to me words to the effect of 'my pain has not gone away, it's in the same places as before and it's much worse'. Further, I am aware that in her statement, at paragraph 97, Meigan Williams sets out a conversation that she says she vaguely recalls occurring on 3 December 2012, in which she says she told me that Hailee's pain was getting worse and affecting her life and work. 95 I can't now recall Ms Williams using words to the effect she alleges in paragraph 117 of her statement or Meigan Williams using words to the effect she alleges in paragraph 97 of her statement. If I had been told that Ms Williams' pain was much worse than it had been previously, or that it was getting worse and was affecting her life and work, then as per my usual practice, I would have recorded those matters in my letter to Dr Mutasim. Further, I would not have described Ms Williams' pain as not having settled completely or her having obtained approximately a month's relief from it in the letter to Dr Mutasim. In light of the contents of my letter to Dr Mutasim of 3 December 2012, I deny that Ms Williams or her mother used words to the effect of what they allege in their respective statements. 96 In the plaintiff's statement, she does not specifically allege that she said to me on 3 December 2012 that she had back pain, though she seems to raise it as a possibility. She also says, in paragraph 119 of her statement, that she may have demonstrated to me where the pain was (including in the back) by using her hands. 97 If Ms Williams had described back pain to me or demonstrated it to me on 3 December 2012, then I would have taken certain steps, as per my usual practice, as described at paragraphs 71-78 above. 98 My letter to Dr Mutasim of 3 December 2012 contains no reference to any complaint of or demonstration of back pain, no reference to any examination of the back and no reference to me referring Ms Williams off for further x-rays of the back. Because there are no such references, I say that Ms Williams did not complain of or demonstrate back pain to me on 3 December 2012 and nor did Meigan Williams describe Hailee as suffering from back pain. 99 I can't now recall whether I physically examined Ms Williams on 3 December 2012. While it is my usual practice to conduct a physical examination when a patient comes to see me, the 3 December 2012 consultation was a follow up after a specific mode of treatment I had employed when I last saw Ms Williams (on 22 June 2012). I was focused on how Ms Williams had done since I had performed the left hip injection and it is evident that Ms Williams informed me that she had only obtained limited relief. In circumstances where I was still unsure of the diagnosis and was considering further investigations (which I will refer to further below), I may not have conducted a physical examination on 3 December 2012. 100 As per my 3 December 2012 letter to Dr Mutasim, I recommended to Ms Williams that she have an MRI scan of the left hip. I was aware in December 2012 that teenage patients can have a number of conditions causing hip pain and Ms Williams' hip symptoms had persisted for some time if she was suffering from iliac apophysitis. As per my usual practice, I would have organised the MRI scan to see if there was some evidence of a hip condition other than iliac apophysitis that might explain the pain. 101 As per my 3 December 2012 letter to Dr Mutasim, I planned to review Ms Williams once the MRI results were available in order to advise regarding further management. 102 I am aware that at paragraph 122 of her statement, Ms Williams claims that I said certain things to her at this appointment. While I can't now recall the words I used in advising Ms Williams, I accept I may have said words to the effect of those set out in paragraphs 122(a) and (c). I deny that I said words to the effect of those set out in paragraph 122(b). That is because the growth plates in the hip would have fused when Ms Williams was younger and I would not have been suggesting to her that her symptoms as at 3 December 2012 reflected a problem with the growth plates in the hip. To my knowledge, the apophysis takes longer to fuse than the hip joint growth plates and I accept that I may possibly have said something about Ms Williams' hip pain being due to the muscle attached to the apophysis (or growth plate) causing irritation. 103 In all of the circumstances and as per my usual practice, I think it is likely I said to Ms Williams words to the effect of 'while I'm hoping you will grow out of your pain and it is due to apophysitis, I recommend you have a MRI scan of the left hip to see if there is something else going on to cause the pain'. 104 In paragraph 125 of her statement, Ms Williams sets out a conversation that she says occurred on 3 December 2012, leading to me suggesting that she try physiotherapy. I can't now recall the specific discussions I had with Ms Williams and/or her mother or the specific circumstances that led to the referral to physiotherapy. It is possible I had a discussion to the effect of that attributed to me by Ms Williams. 105 It is not part of my usual practice to refer teenage patients with ASIS pain for physiotherapy where I am unsure of the diagnosis (as I was with Ms Williams on 3 December 2012). However, in her case, while I was unsure of her diagnosis, it is evident from my patient records for Ms Williams that I was not contemplating the diagnosis of any condition that would raise a risk of harm through Ms Williams undergoing physiotherapy. It is evident from my various letters and the investigations I undertook that as at 3 December 2012, I was still wondering whether her symptoms may be due to being tight in the hip flexors and hip abductors. On that basis, a stretching program may have provided her with some benefit. 106 At paragraph 128 of her statement, Ms Williams describes forming an impression at this consultation that I was going through things very quickly and wanted Ms Williams to hurry up. While I can't recall the specific details of the 3 December 2012 consultation, my usual practice is to take as long with patients as is required given their clinical circumstances. I deny rushing the consultation and say that if the appointment on 3 December 2012 clinically required that I spend more time than the 10 minutes I would have allotted (for a follow up consultation), then I would have taken longer. 107 Also on 3 December 2012, I completed a referral to O'Neill Physiotherapy, signed it and gave it to Ms Williams. As at December 2012, I had a supply of physiotherapy referral forms for a small number of physiotherapists, including O'Neill Physiotherapy, in my rooms. While I did not retain a copy of the physiotherapy referral form for Ms Williams in my patient record for her, I have been informed by my solicitors that a copy is located in Mr Seabury's records for Ms Williams and I have reviewed it. I recognise it as containing my writing and signature. A copy of the 3 December 2012 referral is annexed to this statement and marked with the letter 'C'." [Emphasis added at 55 and 56]
Dr Stening's letter reporting to Dr Mutasim on 3 December 2012 is in these terms: "Unfortunately, Hailee's hip pain did not settle completely despite the injections of cortisone into the anterior superior iliac spine regions. She had approximately a month's relief. I've recommended she now proceed to an MRI scan of her left hip. The findings will be similar on the right side I'm sure. I'll review her with the results and advise regard [sic] further management."
Hailee Williams underwent the MRI scan foreshadowed in that letter on 12 December 2012. Dr Stephen Morris reported the results to Dr Stening as follows: "MRI LEFT HIP Clinical history: Complains of anterior hip pain,? labral tear,? ASIS tendinosis. Technique: Non-contrast MRI of the left hip. Findings: The gluteus medius and minimus tendons are normal at the trochanteric attachment. No trochanteric bursitis. The hip flexors proximal hamstring and adductor origins are intact. No abnormality along the ASIS is seen. The rectus femoris is normal. No joint effusion is seen. No fracture or osteonecrosis. No synovitis. Chondral thickness is maintained. No labral tear. COMMENT Normal study. There is no evidence of a labral tear. No tendinosis at the ASIS is seen."

Cross-examination of Dr Stening

Dr Stening was asked about Hailee Williams' later detected pars defect: "Q. Now, you've said in your statement that had you been informed that there was a right sided pars defect, your treatment of this young woman would have been different; do you recall saying that? A. Yes. Q. And to that extent, had that been reported to you, that would have been critically important information for you, wouldn't it? A. Yes. Yes, definitely. Q. And is that because regardless of whether she complained of pain or not, you would be keen to determine whether she had either spondylosis or spondylolisthesis? A. Yes, with a pars defect, aside from well, it needs to be monitored, essentially, or it needs to be identified and clarified as to the exact nature of the pars defect, yes. Q. But it also helps inform you of your clinical decisions, doesn't it, and your clinical management? A. Yes, yes. Q. And it's one of those things that it helps you provide advice to the patient as to what activities he or she ought to engage in and what activities he or she should not engage in; do you accept that? A. Yes. Yes, definitely. Q. And if you had the pars defect reported to you, you would have told - and this is at this consultation on 20 June 2012 - can you suggest you would have done a number of things, and to that extent can I take you to page 51 of your report your statement. A. Yep. Q. The first thing is you would not have sent a report like that to Dr Mutasim, would you? A. No. Q. And what you would have done, just looking at that report, is you would have turned your mind to the clinical history contained in that report, specifically in the second sentence that over the last six months she has started working as a childcare worker; do you see that? A. Yes. Q. And that in that six-month period with the commencement of that work, that had corresponded to developing recurrent pain. A. Yes. Yes. Q. And that that pain was developing around the anterior aspect of both hips, left worse than the right; do you see that? A. Yeah, yep. Q. And you would have formed a view, can I suggest, that she might have been suffering from two conditions, that is spondylolisthesis symptoms or ASIS pain, or both? A. Yes, I could have formed the view that, if I was aware that there was a pars defect, that the pain was referred from the back."
That evidence was followed shortly after with these questions and answers: "Q. Dr Stening, before lunch I was taking you to page 51 and we were saying, just by way of summary, that you'd agreed with me, I think that had you been told about the pars defect on the X-ray, you would have proffered a very different letter of advice to Dr Mutasim, is that correct? A. That's correct. Q. And one of the features, can I suggest, that would have struck you, is the history that you'd taken or recorded in your letter, that the plaintiff had started working in childcare and associated with that was the development of pain around both hips. A. Yes. But in my letter, which I have in front of me, at that time I attributed it to her repetitively squatting and you know, getting up and down with her role as a childcare worker. And attributed that more to the ASIS. Q. I understand. But one of the issues is that if she had the pars defect and she was engaged in heavy lifted and repeated lifting like this, she was at risk of experiencing lumbar pain, wasn't she? A. It was more likely to aggravate lumbar pain, yes. Q. And not only that, but if the spondylolisthesis was of a low grade, that is it hadn't yet slipped, if she engaged in heavy or repeated lifting or contact sports or that sort of thing, that sort of activity could give rise to the triggering of a slip, couldn't it? A. I'm not exactly aware of what duties involved with childcare work. But generally, more vigorous activity, particularly as you mentioned with sports, are likely to aggravate a slip. Q. And when we talk about vigorous activity, let's put aside the contact sports and so forth. Repeated lifting of items off the floor, or of objects or children off the floor would have been a significant matter that could have triggered a slip, wouldn't it? A. Well, we're thinking activity where you're flexing and extending the lower spine. If there's a condition in the lower spine, then yes, it's likely to aggravate it. Q. But not only when you say aggravating the condition, if it's spondylolisthesis, we're talking it could trigger a slip which hadn't previously been there, do you agree? A. Spondylolisthesis refers to the slip itself as in you start to see a slip on the X-ray but if there's just an isolated pars defect without actual slippage having occurred, you will get pain in the lower back and that's the aggravation that would occur. As to whether it triggers the slip to progress, I can't say for certain whether that would be the case. Q. But that would be a possible risk, wouldn't it? A. It's possible I guess, yes, or it could be a natural progression of the condition."
Dr Stening agreed that if he had been told about the pars defect, it was the very information that he would have included in his letter to Dr Mutasim on 20 June 2012.
Dr Stening was then cross-examined on the following important topic: "Q. The requirement for a three-month review and clinical assessment is in part reflective of one aspect and that is that young lady may still have had an immature skeletal process at that level, you agree? A. It's primarily to be sure that the slip is not progressing rapidly. Q. When you look at the X-rays at three monthly intervals to look for progression, this would be important to see, and I suggest a couple of things, one is to see whether there's any movement in the L5 process relative to S1? A. Yeah, that's correct. That's sort of been one progression of the slip, yes. Q. That may or may not be associated with any signs of symptoms? A. Yes. That may be - well, it may not be associated with any symptoms such as nerve root irritation but there could be symptoms still of back pain for instance. Q. But are there also circumstances in which you can have a progression of a slip with only mild or intermittent back pain which is due to muscular ligamentous strain? A. I think so. Yes, possibly. Q. So that slip may be, for all intents and purposes, asymptomatic or only partially symptomatic? A. Yes, correct. It's possible. Q. It may not give rise to any actual - I mean apart from directing or advising the patient to avoid contact sports or heavy lifting or repeated lifting and to try and obtain perhaps sedentary employment, they may still be able to engage in all their ordinary domestic and employment duties with very limited disability. Is that correct? A. That's possible, yes. Q. One of the other things you'd be able to determine on regular radiological view is any evidence of desiccation or intervertebral disc compression, correct? A. On plain X-rays, if you're referring you know to regular radiological review, you wouldn't necessarily see any disc herniation. You may - I mean but you may see assistant or some narrowing of the disc space. Q. That would those serial X-rays and so forth would be able to enable you to give further advice to the patient about any further exercise or core strengthening or physiotherapy they should be undertaking, correct? A. The core strengthening is an important component of trying to minimise any back pain and potential progression but if the serial X-rays showed that there was suddenly starting to be a rapid slip well then you would be concerned that you would have to refer off to a spinal surgeon quite, you know very promptly. Q. Yes, I understand. Because there's a risk… A. Yes, that's right. Q. … that it could progress quickly? A. Exactly, yes. Q. The other thing is if you've got a series of X-rays at three monthly intervals that would enable you to be able to give advice to the patient as to what was actually going on with the patient and provide them with the opportunity to make an informed decision about surgery. Correct? A. I think so. If, yeah, if you were I mean bearing in mind I would not be doing the surgery and you know some specialist would have been giving that information about the risks of the surgical procedure, et cetera. Q. And it's one of those things that surgery is really the last resort with back conditions isn't it? A. Yes, surgery is the - is designed to stop the slip from progressing further and potentially reducing the slip although it's my understanding it's difficult. It's difficult surgery to reduce it accurately and yes, it's designed to minimise that risk of deterioration and neurological function. Q. If the alternative is that the progressive X- rays demonstrate that there is no progression of the slip but the problem is compression on the intervertebral disc giving rise to radiculopathy then that might give rise to a very different surgical recommendation. Do you agree with that? A. If yeah, I mean if the disc was causing pressure on the nerve root and that pain couldn't be resolved then, yes, it's possible that surgery would need to be performed to take pressure off the nerve root. Q. But when it's talk about not being able to resolve it, the first course, even if you had radiculopathy would be to try and ensure that a program of conservative management would have taken place. Do you agree? A. Yes. Q. Non operative management? A. Yes, definitely. Q. Including avoiding any aggravating activity? A. That's part of the way of minimising symptoms, yes, exactly."
Dr Stening agreed with the following matters upon which Hailee Williams relies: "Q. … It's the case though that either through your experience or through your knowledge, that non-operative measures such as refraining from repeating of loading of the spine through repeat of flexion and extension and also core strengthening can often give rise to a resolution of symptoms. A. Yes, that's correct. Q. And it can often mean that there's a sufficient resolution of symptoms, not to prove a disability in the ordinary activities of daily living for the patient, correct. A. Yeah, that's correct. Q. And it can even defer [sic, divert] a person away from surgery as a solution to their problem, do you agree with that? A. It can. It can be the main stay of treatment. Yes."
It was part of Hailee Williams' case that she had demonstrated the location of her back pain for Dr Stening. He was asked about that: "Q. Look, Hailee says that you asked her to describe where the pain was and she stood up and she showed you by pointing, and I would like to take you to page 53 and 54. Do you see those paragraphs? A. Yep. Yes, I can see those. Q. Now, what do you say to the suggestion that you asked her to show you where the pain was and she indicated with her hands in that manner, do you say that took place or it didn't? A. I have no recollection of that taking place and with regard that, clearly she has her hands on her back as well as over her anterior superior iliac spine, the ASIS region, and that would indicate that she's pointing to the lower back, and that would have definitely been a red flag to me if she had have pointed in that you know, to that area. That would have concerned me."
Dr Stening relied upon the fact that it would have concerned him as support for his total absence of any recollection of it occurring. He insisted that if Hailee Williams had complained of pain in her back, and given a demonstration of the type she described, he "would have undertaken a completely different medical assessment".
Dr Stening not unreasonably had little, if any, recollection of the details of his first consultation with Hailee Williams and her mother to which they both referred in their evidence. It is apparent that Dr Stening was reliant upon the terms of Dr Mutasim's referral for much of what he could recall. I sought to clarify that position by asking him the following question in those circumstances: "Q. Just out of interest, Doctor, it may be quite reasonable in the circumstances but is it fair to say that your only accurate recollection of anything that took place at this consultation is what is reflected in your letter to the GP or do you have an independent recollection of anything that occurred at that time to which there's no specific reference either in terms or by implication? A. I don't have any recollection of anything other than what is outlined in my letter to the GP."
With further reference to the specifics of any possible physical examination he might have conducted, Dr Stening said this: "Q. Let me put the question to you. Hailee Williams has indicated that she recalls you lifting her leg straight, each leg straight, one after the other as she was lying face up, right? A. Yes. Q. To that extent, given your usual practice, that could have been a result of you examining her because of a complaint of back pain, couldn't it? A. If she complained of back pain and I was trying to elicit if there was any history of neurological problems, then yes, I could have done that. Q. If that was about the usual practice in the event of a complaint of back pain, right, is it possible do you think, doctor, that in fact you did receive a complaint of back pain, performed the tests, did not find any satisfactory evidence of back pain and then did not include it in your letter? A. No, I think that's unlikely. Because if I had examined a patient for a spinal exam or an exam for back pain I would have, even if I thought that all the findings were normal and I didn't elicit any you know signs of irritation or whatever that might indicate something was going on, I would have conveyed that as a positive finding in my medical records to exclude pathology. So I would have used that, I would have mentioned that in my letter because it is a although something is normal it is also a positive finding for excluding diagnoses."
Dr Stening agreed that if he had come to a view that Hailee Williams had no back pathology and he had been looking for it, it is improbable that he would not have referred to it. That is because it would have been an important positive finding upon which to report to the referring doctor.
Dr Stening agreed that there was an inconsistency between the restrictions placed upon Hailee Williams in the medical certificate for restricted duties that he later provided and the terms of his letter to Dr Mutasim: "Q. Do you see any inconsistency between the medical certificate you gave on 2 July and the advice you were giving Dr Mutasim in that letter? A. Yes. Well the inconsistency, it would be that - to move from her current duties."
Dr Stening agreed that Hailee Williams needed to get away from repetitively lifting children.

The statement of claim

It is instructive at this point to consider in some detail the way in which Hailee Williams frames her case against each defendant. As will already be apparent, the essential background to her claims is that Dr Mutasim found her to be "tender over the (L) ASIS and L4-5" and that he gave her a referral to undergo a pelvis and hip X-ray and an ultrasound of both hips. Dr Fraser was provided with a history of lower lumbar pain by Dr Mutasim in his letter of referral for X-rays. The amended statement of claim then contains the following allegations: 1. Dr Fraser knew that young men and women with lower lumbar pain in the age group from late teens to early twenties can be cause by spondylosis and spondylolisthesis and that such conditions can be treated conservatively so that permanent damage is avoided. 2. Dr Fraser did not provide the history of lower lumbar pain provided to him by Dr Mutasim in the 24 May 2012 X-ray report or in the 31 May 2012 ultrasound report. 3. Dr Fraser knew or ought to have known that the history of lower lumbar pain in addition to hip pain in a 17-year old girl may be important clinical information to any doctor or specialist reading the X-ray report or the ultrasound report. 4. Had that history been provided, on the balance of probabilities Dr Stening would have ordered further studies and may, or would on the balance of probabilities, have identified the pars defect, spondylitis and spondylolisthesis. 5. Dr Stening would in those circumstances probably have advised Hailee Williams to give up any exercise or work that involved shock to the spine, bending or repeated heavy lifting or twisting and to give up her work at a childcare centre.
Hailee Williams alleges against Dr Stening that he owed her a duty of care on 20 June 2012 and thereafter to exercise reasonable skill and care in reviewing and interpreting her pelvis and hip radiological images, to investigate her right sided pars defect, spondylolytic defects and progressive spondylolisthesis and to investigate her lumbar spinal pain. Dr Stening admits that he owed a duty to exercise reasonable care and skill in managing, advising and treating her but does not otherwise admit the allegation.
Dr Stening denies that he was negligent in any way at all. That denial necessarily includes a denial of each and every allegation of negligence pleaded against him at paragraph 97 of the second further amended statement of claim as follows: 1. Failed to review and/or interpret properly or at all, the plaintiff's pelvic and bilateral hip x-rays of 24 May 2012; 2. Failed to identify, properly or at all, the presence of an "inverted Napoleon hat" sign on the plaintiff's pelvic and bilateral hip x-rays dated 24 May 2012 on or about 20 June 2012; 3. Failed to comment on and/or record, properly or at all, the presence of an "inverted Napoleon hat" sign on the plaintiff's pelvic and bilateral hip x-rays dated 24 May 2012 on or about 20 June 2012; 4. Failed to identify, properly or at all, the presence of the "Scotty dog collar" sign on the plaintiff's pelvic and bilateral hip x-rays dated 24 May 2012 on or about 20 June 2012; 5. Failed to comment on and/or record, properly or at all, the presence of an "Scotty dog collar" sign on the plaintiff's pelvic and bilateral hip x-rays dated 24 May 2012 on or about 20 June 2012; 6. Failed to take and/or record, properly or at all, a detailed medical history that included a recent history of lower back ache and/or back pain on or about 20 June 2012; 7. Failed to investigate and/or treat, properly or at all, the plaintiff's lower back ache and/or back pain on or about 20 June 2012; 8. Failed to advise the plaintiff, properly or at all, that she had an abnormal radiological image of a possible unstable spondylolysis on or about 20 June 2012; 9. Failed to advise the plaintiff of the signs and/or symptoms of unstable spondylolysis and/or progressive spondylolisthesis on or about 20 June 2012; 10. Failed to advise the plaintiff to seek medical attention if she developed signs and/or symptoms of unstable spondylolysis and/or progressive spondylolisthesis on or about 20 June 2012; 11. Failing to perform an appropriate examination of the plaintiff on 20 June 2012; 12. Failed to take and/or record, properly or at all, a detailed medical history that included a recent history of lower back ache and/or back pain on or about 18 December 2012; 13. Failing to perform an appropriate examination of the plaintiff on 18 December 2012; 14. Failed to investigate and/or treat, properly or at all, the plaintiff's lower back ache and/or back pain on or about 18 December 2012; 15. Failed to order, properly or at all, a lumbo-sacral junction radiological imaging on or before 10 January 2013; 16. Failed to notify, properly or at all, the plaintiff's treating medical and/or paramedical practitioners of the plaintiff's right sided pars defect on or before 10 January 2013; 17. Failed to notify, properly or at all, the plaintiff's treating medical and/or paramedical practitioners that the plaintiff's abnormal radiological image of spondylolysis may be indicative of instability on or before 10 January 2013; 18. Failed to notify, properly or at all, the plaintiff's treating medical and/or paramedical practitioners that the plaintiff's abnormal radiological image of spondylolysis may be indicative of a right sided pars defect on or before 10 January 2013; 19. Failed to advise the plaintiff, properly or at all, that she had an abnormal radiological image of a possible unstable spondylolysis; 20. Failed to advise the plaintiff of the signs and/or symptoms of unstable spondylolysis and/or progressive spondylolisthesis on or before 10 January 2013; 21. Failed to advise the plaintiff to seek medical attention if she developed sign and/or symptoms of unstable spondylolysis and/or progressive spondylolisthesis on or before 10 January 2013.
It was accepted by counsel for Dr Stening that Hailee Williams also makes, and that he must meet, an allegation that even if she said nothing to him on 20 June 2012 about her back, and even without a correct report from Dr Fraser identifying her pars defect, a complaint of hip pain to Dr Stening by her or a referral about hip pain from Dr Mutasim should have led him to examine her back.

Hailee Williams

There is no substantial factual dispute between Hailee Williams and Dr Fraser. However, there is a significant factual dispute between her and Dr Stening. Dr Stening does not contend that Hailee Williams is lying in recounting her version of what occurred in consultations with him. Indeed, the defendants' joint submission was that I should accept that Hailee Williams was attempting to give evidence of her recollection of key events honestly and to the best of her ability. However, the defendants, but Dr Stening in particular, maintain that Hailee Williams' recollection is poor and should be discounted in favour of his recollection, aided by or derived from his written recording of what occurred there. The principal area of dispute is whether Dr Stening was told by either Hailee Williams or her mother that she was experiencing back pain.
Dr Stening submitted that there were "multiple bases upon which it can be demonstrated that [Hailee Williams'] recollection is poor so that the Court ought [to] exercise caution in accepting what she now claims to recall having occurred". Those submissions are as follows.
First, Hailee Williams acknowledged that the first occasion on which she tried to reduce her recollection of her attendances on Dr Stening to writing was when she prepared her 1 August 2019 statement. That was obviously many years after the "key attendances" to which it refers.
Secondly, while Hailee Williams "vacillated to a degree as to the quality of her recollection", she candidly conceded that her recollection of what occurred on 20 June 2012 and 3 December 2012 was limited. For example: "Q. Sitting there today, you don't now recall exactly what happened on each day you attended each doctor, do you? A. No, I don't exactly recall. … Q. How did you lie down on it? A. On my back. Q. On your? A. Back. Q. And at some point did you turn over and lie down on your stomach? A. I do not recall that. Q. What I want to suggest to you is that Dr Stening got you onto the examination bed in order to examine you and did a number of things, so can you, as I go through it, can you respond and indicate whether you agree or disagree? A. Yes, I can. Q. So, first of all, I want to suggest that he got you to lie on your back and he felt on your pelvis, that is, felt with his hands on the outside of each side of your pelvis, do you recall that? A. No. I do not recall. Q. I want to suggest, he then pushed down on your pelvis and also at the top of your hips, that is, put some pressure down, do you recall that? A. I do not recall that. Q. I want to suggest that he moved your hips around and moved them into different positions when you were lying on your back, do you recall that? A. No, I do not recall that. Q. I want to suggest to you that he then got you to turn around and lie on your stomach, do you recall that at all or not? A. No, I do not recall that. Q. I'm suggesting that, on your stomach, he did a couple of things, first of all, he pulled your legs backwards, do you recall that at all? A. I don't know, I do not recall being on my stomach so, no, I do not recall that either. Q. Well, if you don't recall being on your stomach at all, what I'm suggesting is that that occurred, do you say your recollection it didn't occur or you just don't recall now? A. That's not, I don't recall."
Thirdly, even though Hailee Williams accepted that her recollection of the various attendances on Dr Stening had been refreshed by reviewing his records, he submitted that it was "strange" that she could no longer recall any of the relevant records she reviewed. The defendants submitted in those circumstances that "there must be a real risk that [her] actual recollection has been inadvertently contaminated with information gleaned from reviewing parts of the relevant treating records".
Fourthly, and said to be allied to the previous point, the defendants submitted that "it is well settled that…where determination of critical issues of fact will involve an evaluation of oral evidence of disputed events, the process of fact finding should be informed as far as possible 'on the basis of contemporary materials, objectively established facts and the apparent logic of events'": Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31]. The defendants referred to what was said by Lord Pearce in Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 at 431 as follows: "Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes, the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance."
Fifthly, the defendants submitted that some aspects of Hailee Williams' recollection of what occurred on 20 June 2012 and 3 December 2012 "are patently wrong". For example, Hailee Williams has no recollection of lying in the prone position. However, Dr Stening's report to Dr Mutasim on 20 June 2012 explicitly refers to the fact that he performed the Ely test which can only be done in that position.
Sixthly, there is a conspicuous absence in the treating records of other health professionals of Hailee Williams reporting or complaining of back pain. The defendants' submission was that "it is [therefore] far more likely that this reflects the fact that [Hailee Williams] is wrong as to what she was actually experiencing and complaining of at the time, as opposed to the alternative conclusion, which would be that multiple, independent, practitioners have made a consistent error in recording complaints of hip pain but not back pain".
This proposition was supported by some examples. Hailee Williams' evidence was that her back pain began in about May 2012, which was a couple of months after she began full-time work at Kindalin. This became more severe, more constant and more debilitating in the second half of 2012. The defendants' submissions emphasised that while Hailee Williams gave evidence that she would have told the general practitioners she was seeing about what was troubling her, there is no reference at all to back pain in the Hawkesbury Valley Practice notes from 30 August 2012 through to 15 November 2012, although there are multiple references to hip pain.
The defendants also submitted that Hailee Williams did not complain of back pain to Dr Maria Jelinek who she saw on 5 and 15 November 2012, when she complained only of problems with tonsillitis, right hip pain and tremors in her hand. Even though the entries are long, none contains any reference to back pain.
Hailee Williams did complain of back pain to Dr Mutasim. On 21 May 2012, he recorded a history of pain in her hips and back that had arisen through her work. Dr Stening submitted that "the structure of his notes strongly suggests that what [she] initially reported to him…was pain in her left and right hip and [that] it was only through specific examination of [her] back that he identified some tenderness over the L4-5 region". Dr Mutasim recorded no complaint of back pain at her consultation with him on 16 August 2012.
Dr Fraser and Dr Stening summarised these points with the following written submission: "Overall, there is a strong flavour of reconstruction in the plaintiff's evidence. That is not in any way a criticism of her or her honesty. Indeed, it is a tendency the courts have recognised …In circumstances where the plaintiff has ended up with a poor outcome following on from her back surgery and she and her mother hold a strong belief that the spondylolisthesis should have been picked up earlier, it is entirely plausible that they may have convinced themselves of making certain complaints (and effectively being ignored) particularly when seeing Dr Stening. The end result of the above submissions is that the defendants urge that where there is a conflict between the evidence of the plaintiff and Dr Stening as to what occurred, Dr Stening's version of events, as supported by the contemporaneous records, should be preferred. He candidly accepted that he could not now recall the detail of the consultations and relied on the contents of his notes and his usual practice. … Dr Stening has the considerable advantage of having contemporaneous records, which most likely were dictated immediately after each appointment with the plaintiff…His evidence about his usual practice, particularly as regards complaints of back pain in teenage patients, accorded with common sense and had the ring of truth about it."

Meigan Williams

The defendants made the same submissions with respect to Meigan Williams. While she was not dishonest, they submitted that her evidence was tainted by hindsight and of poor quality. The defendants referred to the following matters as examples of that.
Meigan Williams' evidence was that Dr Stening did not examine her daughter on 20 June 2012. The evidence otherwise indicates that that is wrong.
Secondly, Meigan Williams disputed that when he injected Hailee Williams' left hip with Celestone Chronodose, he said that he would inject the other side if Hailee got a good response from the procedure. Dr Stening submitted that it was "exceedingly likely that he would have spoken those words", given the terms of his 22 June 2012 letter to Dr Mutasim, and that Meigan Williams "must be wrong in her recollection".
Thirdly, Meigan Williams said that she recalled seeing Dr Daniel Frost in about November 2012 in respect of her daughter's ongoing hip and back ache. However, the Hawkesbury Family Medical Practice records demonstrate that Hailee Williams did not see Dr Frost at all in November 2012.
Finally, the defendants submitted that "there were some bizarre elements to Meigan Williams' evidence about certain matters". For example, she said in her evidentiary statement and oral evidence that it was, in effect, her usual practice to read the various radiology referrals. Meigan Williams later changed that evidence to suggest that her usual practice was instead to read the X-ray or radiology reports. The defendants submitted that her evidence about that "made no sense" and was inconsistent.

Plaintiff's response - truthful and reliable

Hailee Williams submitted that she has not sought to set out the terms of any conversation that she could not remember. She admitted that she had no recollection of some things that must have happened in her consultations with Dr Stening. She recognised the difference between memory and reconstruction. These things "stood to her credit".
Additionally, there were differences in the recollections of Hailee Williams and her mother about the same events. This indicated that there was "no real pollution of memory arising from discussions between them".
Meigan Williams gave evidence that she advised Dr Stening that "Hailee has had niggling hip and back pain on and off for a couple of years". Hailee Williams submitted that that was consistent with the pre-existing medical evidence. Meigan Williams' description is significantly understated. Meigan Williams was cross-examined about it: "Q. Did Hailee speak at all in terms of discussions with Dr Stening? A. Only when she was asked to point out where the pain was. Q. You say that Dr Stening asked her to point it out? A. Yes. Q. At paragraph 69 you have set out what you say you told Dr Stening after he asked, what seems to be the trouble? A. Yes. Q. Accepting that that's your account there, I'm suggesting to you that when you spoke to Dr Stening on that occasion, that is 20 June 2012, you didn't describe to him Hailee having any back pain, do you agree or disagree? A. I disagree with that. Q. I'm suggesting to you that neither did Hailee indicate, through pointing or standing and motioning any back pains, during that consultation do you agree or disagree? A. Disagree. Q. You maintain that the words you spoke were as set out in paragraph 69? A. Yes."
Hailee Williams emphasised that she did recall some things that her mother also remembered. Significant among those was the suggestion that Hailee Williams performed a demonstration to assist Dr Stening: she stood up and pointed to where her pain was. She gave evidence of the demonstration and was not cross-examined about it. She submitted that, even though her mother was cross-examined about it, the failure to cross-examine her on this issue was "critical to the finding of breach against Dr Stening".
Hailee Williams made the following written submission in this context: "Meigan Williams also gave evidence that Hailee demonstrated to Dr Stening where she suffered pain by standing up and using her hands to indicate pain. She was cross-examined at T183.20 and reiterated the plaintiff had demonstrated to Dr Stening where the pain was. Meigan corroborates the plaintiff's account. More importantly, the unchallenged evidence of the plaintiff corroborates Meigan's account. This makes it impossible for the court to find that Hailee did not demonstrate back pain to Dr Stening. As such, there was a relevant communication to him in the clearest terms."
Hailee Williams submitted that it is "critically important with lay witnesses to challenge their account in cross-examination…as a matter of procedural fairness which gives rise to the fundamental rule of advocacy": see Browne v Dunn (1893) 6 R 67; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11. She submitted that the High Court decision in Kuhl means that the defendants could not rely on cases like Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [42] to the effect that cross-examination may not be the only way in which to guarantee procedural fairness. Hailee Williams submitted that the obligation to cross-examine a witness on a critical topic cannot be displaced by particular practices that may have developed. Specifically, it was not enough for Dr Stening to rely upon his usual practice, to the effect that he would have recorded matters differently in his report to Dr Mutasim if Hailee Williams had demonstrated back pain as she alleges, to counter the evidence from her that she did so.
Usual practice evidence may be relied upon to base findings as to whether things were done or said: see Morris v Hanley (2003) 173 FLR 83; [2003] NSWSC 42 at [70]; Bergman v Haertsch [2000] NSWSC 528 at [271]; Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721. Dr Stening conceded that he could not recall the detail of his consultations with Hailee Williams and relied upon the contents of his letter to Dr Mutasim and his usual practice: "Q. Yes. Now, I take it that really, given the number of patients you see, you have very limited, if any, recollection of this consultation. A. Very limited recollection, yes."
I have earlier recorded at that Dr Stening uncontroversially conceded that he did not have any recollection of anything other than what was outlined in his letter to Dr Mutasim. The letter did not record a complaint of back pain.
Dr Stening was cross-examined about photographs tendered by Hailee Williams that depicted the type of demonstration she said occurred at the 20 June 2012 consultation. He said that if she had pointed to her back it would have been "a red flag". He relied on his letter to Dr Mutasim to suggest it did not happen and that such a demonstration would have led to a completely different medical assessment.
It does not seem to me that a failure specifically to cross-examine Hailee Williams about the demonstration she says she performed was a denial of procedural fairness that offended the rule in Browne v Dunn. It is clear from a comparison of their respective evidentiary statements that, well before the time that Hailee Williams and Dr Stening came to be cross-examined, there was a factual dispute about the matter. Hailee Williams appended photographs depicting the type of demonstration she said took place. Dr Stening dealt with it in his statement at some length. It could hardly be suggested that Dr Stening is now purporting to rely upon his general practice to gainsay Hailee Williams' evidence about it where she had not already been given an appropriate opportunity to confront or to deal with Dr Stening's evidence about it. Significantly, Dr Stening does not say from his recollection of the consultation that the demonstration did not occur. There seems to me therefore to have been little point in confronting Hailee Williams with a suggestion that her memory of a demonstration was flawed when the provenance of the contrary proposition merely derived from Dr Stening's recollection which itself rose no higher than his assumptions about usual practice.
The question remains about whether Dr Stening's usual practice evidence is decisive or even persuasive. Hailee Williams accepted that usual practice may be brought to the aid of a doctor when assessing his or her evidence but that the issue depended largely on the circumstances. However, she submitted that the proof of the existence of Dr Stening's usual practice does not resolve the dispute favourably to him on the question of whether the demonstration took place in fact. In effect, Dr Stening's usual practice argument was limited to what was or was not in his letter to Dr Mutasim, which is quite different to reliance upon a practice of only asking 17 year-old girls who present with a complaint of back pain to demonstrate where the pain was experienced.
Dr Stening's argument, that because there was no reference to back pain in his letter to Dr Mutasim there could have been no reference to back pain during the 20 June 2012 consultation, is obviously circular. It does not take account of the possibility that he failed in this case to conform to his usual practice for some reason. Hailee Williams suggests that one reason may have been that Dr Stening was under time pressure and did not dictate his report immediately before seeing other patients. He may possibly have dictated the letter to Dr Mutasim having lost his notes or made an incomplete recording of what occurred at the consultation. He may have failed to record a complaint of back pain even if it had been made to him. Hailee Williams submitted that the administrative processes in Dr Stening's surgery give rise to the possibility of note-taking error, dictation error or even transcription error.

Disposition of the 20 June 2012 consultation dispute

In my opinion, a combination of factors points to the conclusion that Dr Stening was not told of back pain at or before the 20 June 2012 consultation with Hailee Williams and her mother.
First, neither Dr Mutasim's request to Dr Fraser for X-rays or imaging, with whose report dated 24 May 2012 headed "PELVIS AND HIPS" Dr Stening was provided, nor Dr Mutasim's 3 June 2012 letter of referral to Dr Stening, makes any mention of back pain despite Dr Mutasim having taken a history on 21 May 2012 that included back pain. Dr Mutasim is not a defendant.
Secondly, Dr Stening did not refer to back pain at all in his letter reporting to Dr Mutasim. That of itself is not conclusive of whether Hailee Williams or her mother referred to back pain at the 20 June 2012 consultation. Its significance lies primarily in the fact that the letter from Dr Stening reporting to Dr Mutasim directs attention to the very matters that Dr Mutasim referred to in his letter to Dr Stening.
Thirdly, Dr Stening recommended, and Hailee Williams underwent, a steroid injection into her anterior superior iliac spine, but did not receive treatment related to back pain. Dr Stening carried out this procedure and reported upon it to Dr Mutasim. Meigan Williams attended with her daughter on the occasion of this procedure for injection into the hip.
Fourthly, Dr Mutasim did not subsequently raise with Dr Stening after he received either his 20 June 2012 letter reporting upon the consultation, or his 22 June 2012 letter reporting upon the steroid injection, that there was no reference in either of them to back pain or, in relation to the latter, that it could not have been appropriate for the treatment of a complaint of back pain. Dr Stening's letter after the injection made specific reference to the alleviation of symptoms, which presumably Dr Mutasim would have questioned if he had not referred a patient for treatment of hip pain.
Fifthly, Dr Stening's recommendation for Hailee Williams to refrain from certain activities such as sports and to move from her (then) current duties involving repetitive lifting of children does not point only or even necessarily to the existence of a back problem. The recommendation was not uniquely indicative of the existence of a back pathology but was consistent with the protection of her diagnosed condition of iliac apophysitis. In any event, Dr Stening was not giving a warning with respect to the conservative management of a back condition and there is no suggestion that his warning was inadequate if it related to the management of Hailee Williams' anterior superior iliac spine.
In my view, Hailee Williams and her mother are mistaken in their recollections that Dr Stening was told or shown anything by either of them to indicate that Hailee Williams had or was concerned about or was complaining of any pain or problem with her back. The evidence that demonstrates that Hailee Williams was seeing Dr Stening for a problem with her hip, which evidence does not rely on memory or recollection, but instead derives from contemporaneously created documents, is difficult to discount as unpersuasive: see, for example, Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 549. Moreover, the total absence of any critical response to these documents that one might have expected if they were incorrect is telling. That includes not only Dr Mutasim but also Meigan Williams whose involvement in her daughter's care was commendably close and constant. It is improbable that she would not have picked up on the fact that the medical professionals were all talking about hips if the issue was pain in the low back.
Although Hailee Williams' reliance upon the events surrounding the 3 December 2012 consultation with Dr Stening is different, the objective facts at that time similarly also in my view support the conclusion that, despite the statements and evidence of Hailee Williams and her mother about that consultation, she was still only complaining of hip and pelvic pain but not back pain. As with the documents produced in June 2012, the letter dated 3 December 2012 from Dr Stening reporting to Dr Mutasim, and the content of the MRI report from Dr Morris dated 12 December 2012, are concerned solely with her hips and not with her low back.
Penultimately, and significantly in my view, Dr Stening wrote to Meigan Williams directly on 18 February 2013. Appreciating that she has no medical training and that, to some extent, the letter is couched in technical language, its terms are nonetheless instructive: "Dear Mrs Murphy, Hailee's MRI scan of her hip was reported as normal. In particular there was no sign of inflammation around the anterior-superior iliac spine, the site of tenderness to palpation. Consequently, it's difficult to recommend any surgical treatment in the presence of a normal MRI. Unfortunately, her symptoms in my opinion can only be dealt with by regular tensor fascia lata or gluteal muscle stretches which can be instructed by her treating physiotherapist. Hopefully the medical certificate that I've also sent you will help in managing the planned trekking trip." [Emphasis added]
Further, and also significantly, Dr Stening provided Hailee Williams with a medical certificate dated 18 February 2013 at the request of her mother, presumably in support of the cancellation of her planned trekking trip. It said this: "Miss Murphy has been under my care for bilateral hip pain. Treatment to date has not satisfactorily relieved her hip pain. For this reason, she has difficulty mobilising. As further investigations are being undertaken presently, she needs to continue seeing me for ongoing treatment and as such is unable to travel. In particular, she would have significant difficulty doing vigorous activity such as a trekking holiday until her symptoms have abated."
Finally, apparently on the recommendation of Dr Stening, Hailee Williams saw Mr Craig Seabury in January 2013, who wrote to Dr Stening in that month in the following relevant terms: "Thank you for referral of Ms Hailee Murphy for physiotherapy assessment and treatment of her bilateral chronic hip pain. Initial examination on 10 March 2013 revealed the following: • Reported - chronic 8/10 pain to bilateral anterior hips with left worse than right • Pain worsening after activity and prolonged stationary position i.e. sitting • Palpation - 9/10 VAS to ASIS bilaterally worsening when moving medially to AIIS • Tender on palpation to bilateral psoas major."
It is apparent from Mr Seabury's own examination of Hailee Williams that she was complaining to him of bilateral hip pain but not back pain. His examination notes record that he was dealing with such complaints but not others. This is consistent with what I consider to have been the concerns and complaints to which Hailee Williams directed Dr Stening during 2012.
Should Dr Stening in any event have been alert somehow to the possibility that Hailee Williams had a back problem that he should have investigated even if I find that she did not disclose it and that Dr Mutasim's referral did not mention it? The suggestion appears to be that a young woman of Hailee Williams' age in June 2012 presenting with a complaint of bilateral hip pain should somehow also have been examined and investigated with a view to discovering or teasing out the existence of a lumbar or other back pathology.
In my opinion, this issue can be easily disposed of in the context of a consideration of the anterior question raised under s 5O of the Act of whether or not Dr Stening has established that he acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. That is because I have found that Hailee Williams only complained of pelvic and hip pain and did not also complain of lower back pain.
The orthopaedic experts in their joint report agreed that where there were no complaints of back pain made by Hailee Williams on open ended questioning, and Dr Stening properly inquired as to the duration of the pain, its precipitants and characteristics, it amounted to competent professional practice to examine her as he did on 20 June 2012 concentrating on her hips and to arrive at a diagnosis of anterior superior iliac apophysitis.
Question 8 of the joint report of Drs Sekel and Walker dated 9 March 2018 and its relevant answer are as follows: "On the assumption that Dr Stening had available to him on 20 June 2012 when he saw the plaintiff the referral letter from Dr Mutasim of 3 June 2012, the 24 May 2012 X-ray report from Dr Fraser and the films of the 24 May 2012 X-ray of the pelvis and hips and by reference to Dr Stening's letters to Dr Mutasim of 20 June 2012 and 3 December 2012, please provide your view as to whether Dr Stening acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional opinion as competent professional practice in his management of the plaintiff on: (a) 20 June 2012 (if she complained of): (i) Pelvic and hip pain? (ii) Pelvic and hip pain as well as lower back pain? (b) December 2012 (if she complained of): (i) Pelvic and hip pain? (ii) Pelvic and hip pain as well as lower back pain? The following is agreed: (a) 20 June 2012 8.1 Re (i) in the case of pelvic and hip pain only: the answer is 'yes', Dr Stening did act in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice in his management of the plaintiff. The same reasoning as set out in particular to the answers to question 6, is applicable. (b) December 2012 8.2 Again, re (i) in the case of pelvic and hip pain only: the answer is 'yes'. The same reasoning as set out in particular to the answers to question 6, is applicable."
Question 6 had raised a similarly bifurcated issue as to the adequacy of Dr Stening's examination of Hailee Williams. It was agreed that if she had only complained of pelvic and hip pain, his examination of her was adequate. For example, De Sekel said that as at 20 June 2012, with a complaint of pelvic and hip pain alone, it would be reasonable to just look at that area on examination. Both Dr Sekel and Dr Walker agreed that the position in each case would be different if Hailee Williams had complained of lower back pain that Dr Stening overlooked or essentially ignored. In other words, neither doctor would criticise Dr Stening's conduct in their joint report responses if no complaint of back pain had been made to him in either June or December 2012.
This issue became a little more complex following cross-examination of these experts. Dr Walker said this: "HIS HONOUR: That's the sort of history that a prudent orthopaedic surgeon examining an 18-year old would try to elicit I think was the question. WITNESS WALKER: So your question was for hip pain so this is I come back to this the word hip pain is very - it's a layman's word okay? Patients, and unfortunately general practitioners, tend to think that hip pain is in a different region. So, if a patient came to me and said they had hip pain I would say please show me where that pain is. Okay. Now, the pain in this case, if we're being specific was related to the front of the pelvis over the anterior superior iliac spine. And I would not have then going into a deep detail with regards to asking specific questions, have they seen a podiatrist, have they seen an osteopath. I would have asked a possible cursory question around back pain. But again, if it's specific here and we're not talking about diffuse pain in the pelvis, then that would have been less likely to have been asked. I would be surprised if I would have attempted to an elicit a lengthy history of allied health treatment for this problem."
Dr Sekel had earlier given this evidence: "MORRIS: Dr Sekel, do you have anything to say about that? WITNESS SEKEL: Nothing more than if they've come with a very specific point of complaint of an area that was unwell previously and it's just exactly the same I wouldn't necessarily go to the back but if it was anything like mild diffuse or if there was a diffusion and not specific I do think you'd look at the back."
Despite the agreed answers in the joint report, Mr Morris attempted in his questioning of these doctors to suggest that with a complaint of only hip or pelvic pain, and without a complaint of back pain, it would amount to less than competent practice, or a breach of duty, not to ask Hailee Williams about back as well. Counsel for Dr Stening submitted that any suggestion to that effect offended common sense. Having regard to the nature of the inquiry required by s 5O, I take that submission to be that any opinion that a doctor should go looking for something about which a patient did not complain, or to which the doctor's attention had not been directed by a letter of referral or similar, should be considered by me to be irrational: s 5O(2) of the Act.
However, the determination of this question was made easier by the following evidence given by the doctors: "DOWNING: And you're aware that we're talking about consultations in June and December. But if we start with June 2012, would you agree that it would be normal practice to ask a patient on their attendance a question along the lines of, where is your pain? WITNESS SEKEL: Yes. DOWNING: And to then, would you agree that if the answer was to the effect that it was pain at the front of the hips, it would appropriate questioning to then ask questions about the - what brought on the pain, any precipitating factor to start with. WITNESS SEKEL: Yes. DOWNING: And what was the character of the pain, asking them to describe the nature of the pain. WITNESS SEKEL: Yes. DOWNING: And ask them to indicate where the pain was localised. WITNESS SEKEL: Yes. DOWNING: They would all be appropriate questions for a competent orthopaedic surgeon to ask, I take it you agree with that. WITNESS SEKEL: Yes. DOWNING: And Dr Walker, do you agree with the answer, with Dr Sekel's answers to that? WITNESS WALKER: Yes. DOWNING: Thank you. HIS HONOUR: If it's of any assistance to you Mr Downing, I don't think there's likely to be any dispute that what Dr Sekel did-- DOWNING: Stening. HIS HONOUR: …what Dr Stening did was appropriate, which those questions were, in large, directed at. I think the issue is obviously whether or not he should have done any more. DOWNING: Well, yes your Honour but perhaps… HIS HONOUR: Anyway, I'll say no more, please go on. We don't want to waste time. DOWNING: If you assume, Dr Sekel, that on asking that question, where is your pain, the plaintiff only indicated the front of the hips, I suggest to you that it's not necessary to then specifically ask her about the back, would you agree with that? WITNESS SEKEL: Yes. DOWNING: And Dr Walker. WITNESS WALKER: Yes."
I am satisfied having regard to the evidence that Dr Stening did not act otherwise than in accordance with then prevailing professional practice by not inquiring of Hailee Williams, presenting with a complaint of bilateral hip or pelvic pain in June or December 2012, whether she suffered from low back pain in the absence of a specific complaint from her about it. In accordance with recent authority, it becomes unnecessary to consider the different question of whether such a failure would in similar circumstances also have amounted to a breach of Dr Stening's duty to take proper care in the provision of medical treatment.

3 December 2012 consultation

Hailee Williams does not contend that anything that occurred at the 3 December 2012 consultation gives rise to any fresh allegations of negligence by Dr Stening. Her submissions say that "the primary case against Dr Stening rests with the 20 June 2012 consultation" and that the "consultation of 3 December 2012 was another opportunity for the back issue to have been discovered and acted on, but it was not". Her submissions go on to say that "in this regard, the breach of 20 June 2012 subsumes what occurred later on 3 December 2012 in terms of causation".
Hailee Williams maintains that her back condition remained undiagnosed at this consultation. That was said to be "in large part" because Dr Fraser did not disclose the existence of the pars defect on the radiology report that was provided to, and relied upon by, Dr Stening.
Whatever these submissions intended to convey by the use of the expression "in large part", suggesting or inferring that Dr Stening also committed some additional discrete act of negligence on 3 December 2012, it is not reflected in the particulars of negligence alleged against him in the current pleading. I take this particular submission to mean, in the light of the pleadings, that if Dr Stening did not breach his duty of care to Hailee Williams in June 2012, he did not do so thereafter. The particulars of negligence at paragraph 97 (a) - (k) isolate the relevant date as 20 June 2012. To the extent that the particulars at paragraph 97(l)-(u) allege failures by Dr Stening thereafter, they are all founded on the proposition that Hailee Williams was complaining to Dr Stening of lower back pain, a proposition which I have rejected. Specifically, I do not accept that either Hailee Williams or her mother reported or demonstrated back pain during the 3 December 2012 appointment with Dr Stening.

Conclusions - breach of duty

Dr Fraser's admitted breach of duty forecloses the need further to consider that issue with respect to him. The question of whether his breach of duty caused any loss to Hailee Williams is discussed below.
In my opinion, Hailee Williams has not established that Dr Stening was told by her, or by her mother, or that he otherwise became, or should have become, aware that she was suffering from low back pain at any time between 20 June 2012 and December 2012. I find that with respect to the 20 June 2012 and 3 December 2012 attendances, neither Hailee Williams nor her mother made any complaint of back pain, either by words or demonstration. I am satisfied that Dr Stening proceeded upon the basis that Hailee Williams was referred to him complaining of bilateral hip and pelvic pain and that that is what she described to him on 20 June 2012. She did not describe anything different on 3 December 2012. In those circumstances, any conclusion that Dr Stening either failed to act in accordance with widely accepted competent professional practice or any allegation that he breached the duty that he owed to conform to the standard of care required of a reasonably competent paediatric orthopaedic surgeon cannot stand.
In the result, there should be judgment for Dr Stening.

What was Hailee Williams' condition after 24 May 2012 but prior to surgery on 13 June 2013?

Hailee Williams maintains that she has sustained loss and damage, in the sense that her condition deteriorated to its current state because she did not receive appropriate advice and conservative management after 24 May 2012. She claims further that both her pre-surgical condition and her post-surgical condition would have been entirely prevented if that treatment had been provided and that her damage has therefore been caused by Dr Fraser's breach.
Dr Fraser maintains that Hailee Williams' problems are the unavoidable result of her congenital spinal condition which could not have been prevented by conservative management as she alleges. Dr Fraser also contends that surgery was in any event inevitable and that Hailee Williams' current situation is a response to that surgery rather than a continuation and deterioration of her antecedent pre-surgical medical problems.
In these circumstances, it becomes necessary to determine what her antecedent medical condition was immediately prior to surgery on 13 June 2013. It matters not for the purposes of this question whether that condition was or was not preventable by conservative management in the way she alleges: this is considered below.
In my opinion, Hailee Williams' condition in June 2013 was parlous. There is evidence to suggest that on or close to the day her surgery was performed, Hailee Williams was in a state of incipient neurological compromise with potentially catastrophic consequences, including paralysis, if not corrected.
It is not in issue that Hailee Williams suffers from a chronic pain syndrome consisting of neuropathic and nociceptive pain with significant sensitisation of her nervous system as an aggravating factor. However, there is a divergence of views among experts as to whether that syndrome arose for the first time after surgery on 13 June 2013 or whether what she describes in submissions as "presurgical nerve insults" with developing radiculopathy, spinal lordosis, urinary incontinence and peripheral anaesthesia, among other things, were the prime cause, with later surgery no more than "the tipping point" in that process.
Dr Fraser asserts that Hailee Williams suffers from what is called a failed back surgery syndrome, which is a group of conditions associated with persistent or recurrent low back pain, with or without sciatica, following spinal surgery. Dr Fraser relies upon material supporting the assertion that between 10 and 40 percent of all people with pre-existing lower back pain who undergo surgery will develop chronic pain in the spine and the limbs after a single spinal surgical procedure. Hailee Williams emphasises that such a statistic is no more than an uncontroversial recognition of the fact that somewhere between 60 and 90 percent of people recover.
The evidence does not appear precisely to describe or explain the mechanism for the development of Hailee Williams' chronic pain syndrome other than by reference to her pre-operative and post-operative conditions. Dr Cree was the surgeon who operated on Hailee Williams. His unchallenged evidence was that she had pre-operative urinary incontinence, saddle anaesthesia and diminished tone consistent with "full-blown" cauda equina-type syndrome on 13 June 2013, although not consistent with an MRI scan demonstrating L2-L3 compression.
This issue was discussed at considerable length in the evidence of experts in joint session on 26 June 2020. It revolved in large part around the question of whether Hailee Williams had a cauda equina syndrome and whether or not that was in effect an essential indicator for surgery in her case.
Dr Sekel agreed that Hailee Williams did not have cauda equina syndrome. Dr Sutton's view was as follows: "WITNESS SUTTON: Can I make one further point, just to go back to what we spoke about earlier this morning. When you have a slip you have an increase in capacity of the spinal canal. You normally see a cauda equina syndrome when there is a disc protrusion and mechanical compression of the cauda equina. We're not - as a result of the spondylolisthesis the spinal canal is actually wider, there is no mechanical compromise of the sacral nerve roots."
Dr Biggs made the following point: "WITNESS BIGGS: …What we've all agreed upon, everyone in this room and all the radiologists is that there are bilateral defects in the pars, hence the slippage will not cause the compression of the cauda equina."
Professor Dan contributed to the discussion on the issue of whether Hailee Williams' signs were an indication for surgery. These were things such as kyphosis and loss of lumbar lordosis. He expressed this view: "WITNESS DAN: I think that what Dr Biggs was saying was spot on. I also think that it should be stated, fairly strongly that the presence of those factors in themselves aren't a reason for immediate surgery. And I think that if I had seen her on that day, she would have been put on an elective waiting list, rather than anything urgent. And I suspect she would have come to surgery at around the same time."
I take that opinion to be that Hailee Williams' condition was such that at or around 13 June 2013 she was going to require surgery sooner or later, even if the urgency perceived by Dr Cree was overstated. However, the corollary of that eminent opinion is that at some point before 13 June 2013, she was suffering significantly from lower back problems that were causing distress that was sufficient for her then treating orthopaedic surgeon to consider that he could not safely postpone operating to relieve her symptoms.
Associate Professor Boesel offered a very comprehensive and helpful opinion about the aetiology of Hailee Williams' pain syndrome: "WITNESS BOESEL: So, I believe that this patient had pre-existing vulnerabilities prior to the development of her spondylolisthesis related nerve compression, and those include a history of migraine and endometriosis, both of which are painful conditions. In the psychological, psychiatric domain, she had been adversely affected by the death of a close friend at some point relatively close to the development of these physical problems, so those can be understood as priming factors or vulnerabilities, and certainly, within the post-surgical pain syndrome literature, these sorts of factors are recognised; right? So, psychological vulnerabilities seem to reduce the resilience of the nervous system to painful insults, and other painful conditions increase the propensity to develop this sensitised state, so that's the background of the patient. She then went on to develop a progressive spondylolisthesis, that became symptomatic between December and the time of her operation in 2013. From my reading of the record and the patient's history, the predominant pain complaint was, in fact, one of back pain, which you can certainly attribute to the structure deterioration in her lumbar spine. She then went on to have corrective surgery, and to be clear, if you look at Dr Cree's reasoning, he was concerned about further neurological deterioration. He noted that there was evidence of radiculopathy in the form of weakness, in the extensor hallucis longus, which correlates with the L5 dermatome, and some mild sensory change. He did not comment about neuropathic pain at that point. The goal of the operation was to stabilise the spine and prevent further deterioration and the development of further neurological compromise. Pain, I don't think, was part of the decision making process, your Honour, so it was about mechanical salvage and stabilisation, and certainly, I am of the opinion, based on looking at the scans, that that was competently achieved, so she has a stable spine, and that region has been posteriorly decompressed to allow for more room within the spinal canal, and the L5 nerve roots appear to have been successfully decompressed as well. Now, the major problem that this lady has subsequently developed, and that she now has, is severe back pain and severe leg pain. The back pain, on my examination, clearly has neuropathic features, so she's hyper sensitive, she can't tolerate light touch, she can't tolerate stimulation with pin prick, but at the same time, she also has some sensory impairment in that region, so they're all classic nerve pain features, and when I speak of the superior cluneal nerves, they're nerves that cover the lumbar region up to the top of the buttock, and that's where she's experiencing a lot of her back pain. Now, there is also mechanical pain really related to muscular deterioration, predominantly, and perhaps a little bit of arthritis next to the fusion as well, so these two things are overlaid with each other. Now, I think there's been a major sensitisation process as part of the development of this back pain. In terms of the lower limb condition, she has neuropathic pain below the knees with associated sensory change, but that is in the distribution of multiple dermatomes, which would suggest that something else happened to her beyond a period of L5 compression, which didn't manifest predominantly with pain prior to surgery. So, I would attribute the predominant cause of her condition to a combination of pre-existing vulnerabilities, and then the effects of the surgery with the spinal canal having been instrumented extensively, and manipulated, and the nerves having been manipulated."
However, as the experts agreed in the Joint Causation Report, those pre-existing vulnerabilities that occurred between February 2013 and June 2013 included lower back pain, radicular pain, loss of lumbar lordosis, peripheral anaesthesia, urinary incontinence, saddle anaesthesia and diminished anal tone. Dr Fisher was of the view that these pre-existing vulnerabilities materially contributed to Hailee Williams' ultimate pain syndrome: "WITNESS FISHER: Well, if all those ducks line up then, you know, on the balance of probabilities, you'd say that it's likely that the spondylolisthesis and the disc compression, and the degree of its impingement on the nerve L5 nerve root is quite likely to have contributed to her pain at that time, and to the ultimate development of a chronic neuropathic pain capped off by the impact of the major operation."
I am unable to accept Associate Professor Boesel's emphatic views that Hailee Williams' pain syndrome was only caused by her surgery. The evidence in this case satisfies me that Hailee Williams continued to suffer from similar symptoms after her surgery to those she had unfortunately suffered before it, and which significantly supported the decision to operate upon her.

Could Hailee Williams' condition have been avoided by prior conservative management and was surgery always inevitable?

As is apparent, Dr Fraser has conceded that he breached his duty in failing to identify Hailee Williams' right sided pars defect and in failing to report to Dr Mutasim that she required further radiological imaging of her lumbosacral spine. I have already concluded, and Dr Fraser has acknowledged, that he breached his duty in those respects.
Hailee Williams contends that her undiagnosed pars defect could and should have been managed conservatively with core strengthening exercises, restrictions on her work obligations and recreational pursuits and by avoiding strenuous activities entirely. She maintains that on the balance of probabilities, her spinal condition would have effectively resolved if treated in this way and that surgical intervention could and would have been entirely avoided or at least restricted.
Hailee Williams' submissions were as follows.
The experts agree that had Hailee Williams' pars defect, whether it be dysplastic or isthmic, been diagnosed in or before January 2013, she would have been treated conservatively with non-operative management. That conservative treatment would have involved physiotherapy, hydrotherapy, core strengthening exercises with advice to avoid lifting, weightlifting and any high impact exercises. She would also have been advised to avoid any hyperextension activities including kickboxing, gymnastics and bending over and lifting children. She would have been told to avoid spinal manipulation and/or spinal adjustments by chiropractors, osteopaths or her physiotherapist. Moreover, Hailee Williams would have been told to change her occupation from childcare to one that did not involve flexion, extension and lifting weights.
The reason underpinning such advice relates to removing activities that traumatise the lumbar discs and precipitate spondylolysis or low Grade I spondylolisthesis progression or movement. Repetitive activities involving lumbar extension or flexion and lifting heavy weights aggravates the lumbar discs and can wear articulating surfaces of the L5 and S1 vertebrae, ultimately leading to compression of the intervertebral disc, disc degeneration and loss of disc height, crushing the lumbar L5 nerve causing radiculopathy and further spondylolisthesis slippage.
The experts agree that symptoms of nerve irritation, such as shooting pains in the legs, leg cramps (including nerve irritation or referred back pain), pain below the knee and into the dorsum of the foot, lower limb pins and needles and lower limb paraesthesia are suggestive, particularly the latter, that the nerves are under pressure or duress.
Dr O'Neill's opinion was that sensory loss or sensory symptoms or weakness (including pins and needles and paraesthesia), indicates that the nerves are under serious compromise, and may lead to partially irreversible damage.
Furthermore, there is agreement among the experts that had Hailee Williams' pars defect/spondylolysis or low Grade I spondylolisthesis been identified, she would have been clinically assessed, a detailed history of her symptoms would have been obtained and arrangements would have been made for further radiological investigations, such as lateral X-rays and flexion extension views and MRI scans. The purpose of the further radiology and clinical assessment and monitoring is to identify the problem, the nature and extent of the pars defect (dysplastic or isthmic), spondylolysis or low Grade I spondylolisthesis and to monitor its progression (if any). The experts agree that Hailee Williams would in such circumstances have been reviewed every three months.
The literature spanning several decades consistently reports on the mechanism likely to cause spondylolisthesis, the prescription of conservative management to treat it and the advice in favour of surgical intervention if the spondylolisthesis progresses to a symptomatic or disabling high grade (Grade III or above).
The literature and the experts also agree that the incidence of spondylolysis can appear sometime after walking begins, implying that upright posture and bipedal position plays a significant role in its development. Its incidence increases from 4.4 per cent in children aged six years to 6 per cent by 18 years and remains stable at that rate and from that age throughout adulthood.
The condition is observed in children and adolescents who have participated in sports that involve repetitive hyperextension of the trunk, such as gymnastics, weightlifting, swimming, wrestling, rowing, javelin throwing and cricket, thus making the condition symptomatic.
For adolescents presenting with Grade I (0% - 25%) or Grade II (26% - 50%) isthmic spondylolisthesis (based on the Wiltse-Newman classification and Meyerding spondylolisthesis grading system), those who are treated conservatively experience resolution of their pain symptoms and stabilisation of their spondylolisthesis in over 80 percent of cases. Following conservative treatment, according to the literature, they return to normal activities of daily living, including sporting activities, and do not progress to surgery. Similarly, according to the literature, in adolescents presenting with Grade I or Grade II dysplastic spondylolisthesis and treated conservatively, 68 percent or more responded to conservative treatment and avoided surgical intervention. The literature further notes, and the experts agree, that the progression of spondylolisthesis after 20 years of age is much less likely to occur due to ossification of the growth plates (skeletal maturity) and the tightening (fibrosis) of the musculo-ligamentous tendons.
Dr Sekel and Dr Drnda said that the conservative treatment regime is not only intended to avoid all activities of hyperextension and lifting but also to provide targeted core strengthening exercises, to allow the ligaments to mature and to permit the formation of osteophyte calcification around the damaged disc which stabilises the spine. Conservative management is designed to get past a developmental period where the patient has hyper-elastic musculo-ligamentous tendons which then develop during the transition to skeletal maturity.
Professor Earwaker gave evidence that he has seen radiological images of people with Grade II dysplastic spondylolisthesis who were skeletally mature, whose dysplastic spondylolisthesis had stabilised without surgical intervention.
The literature also indicates that the incidence of spondylolisthesis progression in the dysplastic type is approximately 32 per cent and in the isthmic type 4 per cent. Dr Biggs gave evidence about this which is referred to below.
Dysplastic spondylolisthesis is associated with lumbosacral kyphosis, involving a trapezoidal L5 vertebra with hypoplastic transverse processes and sacral doming. The combination of the dysplastic anomaly juxtaposed with the sacral doming increases the potential of a rapid slip. Some experts suggested that sacral doming is indicative of inevitable progression leading to surgical intervention. Hailee Williams challenged that proposition, noting that it does not definitively lead to surgery. She maintained that there is controversy in the literature regarding whether the properties of the L5 vertebral body and the sacrum are predictive of slip progression.
The experts agreed, directly or otherwise, that recurrent backwards and forwards movement of the L5 vertebra over the S1 vertebra can cause sacral doming and that the removal of repetitive lumbar extension and flexion movement, consistently with conservative management, reduces the force on the sacrum and thereby reduces sacral doming.
In short, Hailee Williams submitted that she was a candidate for non-surgical conservative management, notwithstanding the nature and extent of her congenital condition in mid-2012.
Dr Fraser contends on the contrary that the pars defect was such that it could never have been satisfactorily managed in this way and that it was inevitable that Hailee Williams would have had to submit to surgery of the type that she ultimately underwent.
The process of assessing hypothetical causation was described by Hayne J in Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 at [113] thus: "The search for causal connection between damage and negligent act or omission requires consideration of the events that have happened and what would have happened if there had been no negligent act or omission. It is only by comparing these two sets of facts (one actual and one hypothetical) that the influence or effect of the negligent act or omission can be judged."
This analysis was reinforced by the High Court in Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 at [66] as follows: "For the purposes of the law of negligence, 'damage' refers to some difference to the plaintiff. The difference must be detrimental. What must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that a difference has been brought about and that the defendant's negligence was a cause of that difference. The comparison invoked by reference to 'difference' is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligent act or omission not occurred."
In Bolitho v City and Hackney Health Authority [1998] AC 232; [1997] UKHL 464, Lord Browne-Wilkinson said this: "Where, as in the present case, a breach of a duty of care is proved or admitted, the burden still lies on the plaintiff to prove that such breach caused the injury suffered: Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613; Wilsher v. Essex Area Health Authority [1988] A.C. 1074. In all cases the primary question is one of fact: did the wrongful act cause the injury? But in cases where the breach of duty consists of an omission to do an act which ought to be done (e.g. the failure by a doctor to attend) that factual inquiry is, by definition, in the realms of hypothesis. The question is what would have happened if an event which by definition did not occur had occurred… However, in the present case the answer to the question 'what would have happened?' is not determinative of the issue of causation. At the trial the defendants accepted that if the professional standard of care required any doctor who attended to intubate Patrick, Patrick's claim must succeed. Dr. Horn could not escape liability by proving that she would have failed to take the course which any competent doctor would have adopted. A defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter. I have no doubt that this concession was rightly made by the defendants. But there is some difficulty in analysing why it was correct. I adopt the analysis of Hobhouse L.J. in Joyce v. Merton, Sutton and Wandsworth Health Authority [1996] 7 Med. L.R. 1. In commenting on the decision of the Court of Appeal in the present case, he said, at p. 20: 'Thus a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person's duty towards the plaintiff required that she take that action. The former alternative calls for no explanation since it is simply the factual proof of the causative effect of the original fault. The latter is slightly more sophisticated: it involves the factual situation that the original fault did not itself cause the injury but that this was because there would have been some further fault on the part of the defendants; the plaintiff proves his case by proving that his injuries would have been avoided if proper care had continued to be taken. In the Bolitho case the plaintiff had to prove that the continuing exercise of proper care would have resulted in his being intubated'."
In the present case, Dr Fraser's failure to observe or to report upon Hailee Williams' pars defect on 24 May 2012 caused no immediate loss or damage to her. However, to the extent that Dr Stening and others relied upon the radiology report to treat her, and did so thereafter in a way that differed from what they would have done if they had known of the true anatomical position, any loss that Hailee Williams suffered as a result is on her case a loss that was caused by Dr Fraser's breach of duty.
Hailee Williams has submitted that Dr Mutasim and Dr Stening were reliant upon Dr Fraser's report in the following ways: 1. In forming their clinical opinions. 2. In formulating clinical management plans. 3. In advising Hailee Williams about the serious nature of her condition and about the vocational and recreational activities she should avoid, and the rehabilitative steps she should take to minimise the risk of further injury.
Hailee Williams submitted that Dr Fraser's report was critical to Dr Stening's decision about whether he had the necessary skills to manage her properly or whether she should be referred on for paediatric orthopaedic care with a sub-specialty in the treatment of paediatric spinal conditions. Dr Stening's evidence was that if there had been complaints of pain in a different body part, especially if Hailee Williams were not responding to attempts to relieve the pain of which she complained to him, he would have referred her for an MRI scan: "Q. If it be the case that on 3 December the plaintiff provided you with complaints of pain in a new body part, is that something that you believe you would have included in your letter to Dr Mutasim? A. If it's, yeah, if it's a new symptom that would concern me, would prick my ears up that maybe something else is going on. Particularly at that point where she was not responding to, you know, my traditional approach to try and relieve pain around the anterior superior iliac spine so, and I'm starting to think maybe something else is going on, hence the referral for the MRI scan."
In the events that occurred, Dr Stening did not order further tests or other diagnostic assistance.
Dr Fraser's position on the issue of whether his breach of duty caused any loss or damage is that it did not, in the sense that the evidence on his account establishes on the balance of probabilities that Hailee Williams would have come to surgery on or about 13 June 2013, as she did, whether or not he had breached his duty of care. He contends that the very same pain condition and consequent psychiatric difficulties from which she now suffers were the inevitable consequence of her congenital defect which would have developed sooner or later, whether she had surgery or not, and could not have been prevented by the implementation in or about June 2012 of a regime of conservative management. In short, the loss she has sustained cannot be attributed to his breach.
Moreover, Dr Fraser contends that, even if Hailee Williams sustained what might be described as pre-surgical loss as the result of his breach, the genesis of her current pain syndrome is solely to be regarded as the manifestation of the surgical procedure itself, as distinct from her antecedent medical condition, and that the surgery was inevitable. Dr Fraser also contends that anything from which Hailee Williams now suffers is the materialisation of an inherent risk of the surgery that could not have been avoided by the exercise of reasonable care and skill.
Consistently with the decision in Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311, where a case can conveniently be decided under s 5I, it should be. This is because s 5I, like s 5O, does not merely deny s 5B causation but provides a defendant with a compete answer to any claim falling within Part 1A of the Civil Liability Act.
Section 5I of the Act provides as follows: 5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk.
Dr Fraser submitted that at any time during which Hailee Williams may have come to surgery, from mid-February 2013 until 13 June 2013 (or what Dr Fraser suggests is "more realistically" from April 2013 until 13 June 2013), there was an inherent risk of her developing a failed back surgery syndrome or a mixed pain state and that such risk was one that could not have been avoided by the exercise of reasonable care and skill, whether on Dr Fraser's part or on the part of anyone else who may have treated her if her spondylolisthesis had been diagnosed earlier.
Clearly enough, Hailee Williams' primary case is that she would have avoided surgery altogether if Dr Fraser had not breached his duty of care. That case proceeds upon the basis that conservative management, including core strengthening, would have prevented the progression of her slip and that Hailee Williams would have "continued to suffer from minor back twinges from time to time but she would not [have become] grossly disabled". Dr Fraser maintains that such a proposition "simply cannot be maintained on the available evidence", particularly the evidence of the radiologists and orthopaedic surgeons, neurosurgeons, neurologists and rehabilitation physicians.
Briefly stated, Dr Fraser's position is that Hailee Williams' pain condition was the unavoidable consequence of surgery that was itself inevitable: the earlier discovery of her spondylolisthesis would not have led to the avoidance of surgery, even with conservative interventions. It follows, therefore, that for the inherent risk defence to succeed, Dr Fraser must establish two things. First, that Hailee Williams would have required surgery for her spondylolisthesis, even if her pars defect had been diagnosed earlier and treated (as she says it should have been), with lumbosacral imaging revealing the spondylolisthesis, associated limitation on activities, the recommendation for core strengthening exercises and physiotherapeutic care. The second is that Hailee Williams would always have risked developing the harm from which she now unarguably suffers, whether caused by the surgery or not, and that it could not have been avoided by the exercise of reasonable care and skill.
Dr Fraser maintained that irrespective of whether Hailee Williams was properly advised and conservatively managed, as he concedes she would have been had her spondylolisthesis been diagnosed in June 2012, she would always have come to surgery on or around 13 June 2013. This was said to be for several reasons, drawn from Dr Fraser's written submissions as follows.
First, most experts have indicated for various reasons that in her case, surgery for Hailee Williams was inevitable. That is the view of Professor Dan, Dr Tuffley, Dr O'Neill, Dr Sutton, Dr Biggs and Associate Professor Boesel. Only Dr Sekel and Dr Drnda support the alternative view. Dr Fraser suggested that the minority view was flawed for several reasons.
For example, Dr Sekel's support for Hailee Williams' position was based on statistics as to dysplastic spondylolisthesis. It is also submitted that Dr Sekel has changed the position he agreed to at the experts' conclave: "DOWNING: But it's correct, isn't it, that nowhere in your answer to question 9, which specifically directed you to the assumption that she would be having conservative management, did you qualify your answer, as set out in 9.1, to suggest that conservative management would have halted the progression and avoided surgery? WITNESS SEKEL: Well, it wasn't discussed. DOWNING: You understood what you were answering in 9.1, didn't you? WITNESS SEKEL: It wasn't discussed. DOWNING: But Dr Sekel, you understood that - you had read the questions, I take it? WITNESS SEKEL: Yes, of course I did. DOWNING: And you understood - read the question now, that what it was asking was-- WITNESS SEKEL: 'Is it likely she would have come to surgery?' DOWNING: No, start at the beginning, please, at question 9. That is, 'In your view, if she had been diagnosed with the spondylolisthesis in June or December 2012, and treated for it as per 7(a) and 7(b)', that is, the conservative management that I've already taken you to? WITNESS SEKEL: Right. Yes. DOWNING: 'Is it likely she would have come to surgery, and if so, what sort', and your unqualified answer to question 9.1 was, 'Yes, it is likely that the plaintiff would still have come to surgery in any event, that is, on the assumption she was conservatively managed'? WITNESS SEKEL: Yes, because that - I would have taken into consideration what happened to her next, not just on that one point in time. DOWNING: Dr Sekel, that - the question didn't direct you to that, did it? It directed you to specifically assume she was conservatively managed, as you've specified in the answer to question 7 she would have been, and to express a view as to whether she would still have come to surgery, and your unqualified response, along with all of the other experts was that, 'Yes, she would still have come to surgery'? WITNESS SEKEL: Yes. DOWNING: You've changed tack from then to now, haven't you? WITNESS SEKEL: I don't - I don't see where. I might be a bit thick. DOWNING: You now say that if, in fact, she had been diagnosed at those times, and she'd been conservatively managed, you take the view that she would have avoided surgery? WITNESS SEKEL: Statistically, yes. DOWNING: You say statistically, that is, by reference to the body of literature about the different forms of spondylolisthesis? WITNESS SEKEL: For dysplastic spondylolisthesis. Yes. DOWNING: What I'm suggesting to you is that the view you expressed then, with the knowledge of a type of spondylolisthesis she had, that conservative management was unlikely to prevent her ultimately coming to surgery? WITNESS SEKEL: (No verbal reply) HIS HONOUR: You'll need to respond, Dr Sekel. WITNESS SEKEL: I'm sorry. You're asking me to answer that? DOWNING: Yes? WITNESS SEKEL: What was the question again, sorry? DOWNING: What I'm suggesting is that you have changed your position from then to now. WITNESS SEKEL: Yes. DOWNING: And you say-- WITNESS SEKEL: From just - from just - well, the answer's yes. DOWNING: And you say that the justification for that is the statistics in respect of dysplastic spondylolisthesis? WITNESS SEKEL: Yes. DOWNING: They were statistics that were known to you then, weren't they? WITNESS SEKEL: Yes."
Dr Fraser contended that Dr Sekel's reliance upon statistics was an inferior substitute for specific reference to Hailee Williams' clinical presentation and circumstances. Moreover, Dr Fraser submitted that Dr Sekel's change of position on what is a critical issue in these proceedings "does him no credit". Dr Fraser submitted that I could have "very little confidence" in Dr Sekel's views that conservative management would have averted surgery in this case.
Dr Drnda was similarly challenged. In his report dated 7 November 2019, he said that a reasonable practitioner who was aware of Hailee Williams' lumbosacral spinal problem in June 2012 would have advised her to avoid work that involved repetitive bending, twisting, lifting and carrying heavy items and to avoid contact sports like netball, basketball, martial arts or anything that involved running and jumping. He then expressed the view that, on the balance of probabilities, if that advice had been heeded, there "would be a significant possibility that [she] would stabilise at a certain level of back discomfort and avoid progression of her listhesis". [Emphasis added]
Dr Drnda was cross-examined about that view: "DOWNING: You have your report now. WITNESS DRNDA: Yes. DOWNING: Page 11 of 19, right at the top. WITNESS DRNDA: Okay. Had advice been given in C above and the plaintiff had followed that advice, then on the balance of probabilities, what was the likely cause of the plaintiff's condition? Yes, I understand the significant possibility the plaintiff would stabilise a certain level of back discomfort and avoid progression of her listhesis. DOWNING: And you read the question carefully. WITNESS DRNDA: Yes. DOWNING: And you chose your words in answering the question carefully. WITNESS DRNDA: Yes. Yes, what was the question? DOWNING: That was the question." [Emphasis added]
Dr Drnda had earlier given the following response to questions from Mr Morris about the same issue: "WITNESS DRNDA: I agree partially with everyone. But I believe that Hailee Williams in June 2012 was probably grade two, not high grade and if conservative management, as it was outlined was instituted, she would have very good chance to remain in the same level and not to deteriorate in February. When she had MRI scan May - I think May, so a year later roughly. Scans showed depending how you measure it, how precise you are, it was borderline between two or three you can - instead late two early three. But not more than that. So, I cannot accept that she was in June 2012 grade three. She must have been grade two. And because there was no treatment - appropriate treatment instituted, she deteriorated over eight months. So, February 13 when she developed signs of, developed symptoms of irritation to nerve root. So, conservative management in my opinion, including avoidance of physical strain that she had at work, so basically leaving work, looking for alternative work, looking alternative sport activities, prefer swimming than anything else, would possibly lead or very likely, more likely than not, lead to stabilisation at the level that she was. And more likely than not she would avoid surgery. Because there was no treatment - appropriate treatment until February 2013, she deteriorated, she got worse and then she tipped over the point where she was then heading towards the surgery. [Emphasis added]
Dr Fraser's submissions emphasised the italicised words, suggesting that there was an element of Dr Drnda checking himself when he used the language of possibility rather than probability, which Dr Fraser submitted was a matter of significance that Dr Drnda appreciated. He submitted that on Dr Drnda's views, Hailee Williams could prove no more than that she lost a chance of avoiding surgery through conservative management, and failed therefore to satisfy the civil burden: see, for example, Tabet v Gett at [67] -[69] as follows: "67 In this case, saying that a chance of a better medical outcome was lost presupposes that it was not demonstrated that the respondent's negligence had caused any difference in the appellant's state of health. That is, it was not demonstrated that the respondent's negligence was probably a cause of any part of the appellant's brain damage. 68 As Gummow ACJ explains, to accept that the appellant's loss of a chance of a better medical outcome was a form of actionable damage would shift the balance hitherto struck in the law of negligence between the competing interests of claimants and defendants. That step should not be taken. The respondent should not be held liable where what is said to have been lost was the possibility (as distinct from probability) that the brain damage suffered by the appellant would have been less severe than it was. 69 It may be that other cases in which it might be said that, as a result of medical negligence, a patient has lost 'the chance of a better medical outcome' (for example, a diminution in life expectancy) differ from the present case in significant respects. These are not matters that need be further examined in this case. It need only be observed that the language of loss of chance should not be permitted to obscure the need to identify whether a plaintiff has proved that the defendant's negligence was more probably than not a cause of damage (in the sense of detrimental difference). The language of possibilities (language that underlies the notion of loss of chance) should not be permitted to obscure the need to consider whether the possible adverse outcome has in fact come home, or will more probably than not do so."
In that case, the injured plaintiff was unable to prove that it was probable that the brain damage that he sustained would have been avoided if treatment with corticosteroids had been undertaken earlier. The evidence was insufficient to be persuasive. Dr Fraser maintains in like fashion that Dr Sekel's reliance upon statistics, associated with his change of opinion, and Dr Drnda's initial reference only to a significant possibility, were not sufficient to establish that in this case Hailee Williams would have avoided surgery even if appropriately treated.
Secondly, Dr Fraser submitted that Hailee Williams had several idiosyncratic characteristics that put her at a significantly increased risk of suffering a slip progression in her spondylolisthesis and the consequent need for surgery to address it. These included the trapezoidal shape of her L5 vertebra and the dome shape of her sacrum, significant hypoplastic deficiencies in her facet joints which meant that forward slip of L5 on S1 was not adequately prevented and the fact that Hailee Williams was skeletally mature as at 24 May 2012.
Dr Earwaker was also cross-examined about this area as follows: "DOWNING: Just following up on what you've just said. When one looks at all of the different factors in respect of the plaintiff's spinal anatomy you identify one factor that would be protective against there being a problem with a slip but a number that suggests that there was a real risk of slip. Is that a fair summary? WITNESS EARWAKER: Yeah, that's a fair summary. DOWNING: So that even if you'd identified this at an early age, you would have already been concerned that there may well be progress of slip and a need for surgery? WITNESS EARWAKER: Yeah."
Some things described by Dr Earwaker in his 27 February 2018 report should also be noted at this point. Dr Earwaker referred to the 11 June 2013 X-ray findings of Hailee Williams' lumbosacral spine as follows: "There is a Grade 3 Spondylolisthesis of L5 on S1. The sacrum is dome-shaped and the L5 vertebral body has a trapezoidal configuration consistent with the presence of a high-grade slip. There is severe narrowing of the L5-S1 disc space consistent with secondary disc degeneration. The intervertebral foramina also appear to be compromised. Impression: Congenital/Dysplastic Grade 3 L5-S1 Spondylolisthesis…"
Dr Earwaker noted that Hailee Williams suffers from the congenital, otherwise known as dysplastic, form of spondylolisthesis: it has been present since birth. He then said this: "In the case of [Hailee Williams] the L5 neural arch is severely dysplastic; the right side being more underdeveloped than the left side. There is a consequent congenital anomaly of the lumbosacral articulation with facet joints (particularly in this case) which do not buttress the forward slip of L5 on S1. The pars interarticularis is usually poorly developed. Invariably the malformed elements which constitute the laminae fail to fuse midline. Dysplastic spondylolisthesis is associated with lumbo-sacral spinal instability."
Dr Fraser submitted that having regard to this and other material, the evidence strongly supported a finding that Hailee Williams' degree of slip was very likely unchanged or only marginally changed, between 20 June 2012 when she saw Dr Stening and 13 June 2013, when she underwent surgery. Dr Fraser's proposition is that Hailee Williams' condition in June 2012 was such that she was at that time inevitably destined to come to surgery and that the delay in that occurring until June 2013 did not make any difference. The degree of her slip of L5 on S1 did not materially change during that time and conservative management of her condition would have made little, if indeed any, difference at all.
Thirdly, Dr Fraser submitted that the evidence given by Hailee Williams' experts after considering her clinical circumstances in the critical period between June 2012 and June 2013 indicated that "there is even more reason to prefer the view of the defendants' experts". It was contended that Dr Sekel appears to have accepted that because of all of Hailee Williams' predisposing congenital factors, the prospects of her avoiding surgery through conservative management "could be put at no higher than a chance": "DOWNING: Would you agree that in all - and again I'm directing this to you, Dr Sekel. Would you agree that in all of the plaintiff's circumstances she was congenitally one of the patients who was at significantly increased risk of slip progression? WITNESS SEKEL: Yes. DOWNING: That is even there had been a diagnosis of the slip earlier, that is in mid-2012 and you tried to conservatively manage her, she still faces that risk? WITNESS SEKEL: Yes, it's a proportion. DOWNING: What I'm suggesting to you, and you can agree or disagree, is that while there was a chance you might have been able to prevent her progressing to surgery and in particular the progression of her radicular symptoms you could put it no better than that, being a chance? WITNESS SEKEL: That's correct. But not inevitable. HIS HONOUR: Sorry, I didn't quite follow. What's not inevitable? WITNESS SEKEL: That she would end up progressing and having radicular symptoms needing surgery - progressing to the stage where she needed surgery and developed radicular symptoms, it was not inevitable. DOWNING: Would you also agree that the spondylolisthesis in her case had been there and would have been affected by her day to day activity throughout her childhood? WITNESS SEKEL: Yes. DOWNING: Especially during the period of pubertal growth? WITNESS SEKEL: Yes."
Dr Fraser argued that when regard is had to Hailee Williams' documented activities between April 2012 until May 2013, there was no more than a small chance she would have avoided surgery if her condition had been accurately diagnosed and she had been restricted in her activities through conservative management. Dr Sekel agreed with this: "DOWNING: What I want to suggest is that if you accept that they were her actual activities, the proposition that by sending her to conservative management and her being managed in the way you've described. The proposition that that would have made all the difference for surgery is no more than a small chance. WITNESS SEKEL: Yes, if that's all she did."
Dr Drnda agreed: "DOWNING: And do you agree with his [Dr Sekel's] answer, that if in fact she behaved in that way, you could put the prospect of avoiding surgery at no higher than a chance? WITNESS DRNDA: So, if I assume that she had reduced work in childcare with limited ability to - with limited lifting and the regular physiotherapy. DOWNING: Yes. WITNESS DRNDA: And still developed what she developed. Well then I would agree that chances would decrease for her to avoid surgery."
Necessarily inherent in Hailee Williams' approach is the assumed position that conservative management of her condition from June 2012 would have made a relevant difference to her progress. For abundant caution I note that my understanding of her case on this issue is that she could not by conservative management have been made better than she was on 20 June 2012, but that the avoidance of problematic work related and recreational physical activities, together with core strengthening exercises, could have maintained her condition as at that date and thereby avoided deterioration that would have led to surgery.
The defendants' experts have argued that Hailee Williams was always a candidate for surgery, with or without conservative management. As Dr Tuffley said in his evidence: "…we always say, avoid extension, because it tends to aggravate their symptoms, but in some cases it's important because you're trying to get the pars defect to heal when there's only a very slip [sic], or there's only spondylolisthesis, but in these cases it's - avoiding extension is not going to see the pars defect heal, but it might decrease the irritation".
During the concurrent evidence of the experts, the following discussion also occurred: "WITNESS BIGGS: Thank you. A few things. The numbers that Ron has said, 4% relates to those who progress in terms of their slippage. That's not the number who end up having surgery. The 32% for the dysplastic ones are the ones who progress in terms of their slippage, not the number who need surgery. Secondly, we - the fact that two thirds or whatever we say improve with conservative management, that is referring to grade one or two spondylolisthesis. With the grade three, the article by Cadderlia reports only a 10% improvement with conservative management. And most of the literature would support operating on high grade spondylolisthesis if they're symptomatic. And personally, I believe this lady had a grade three in June '12. So therefore, I don't think conservative management would have helped her. MORRIS: Well you've seen the - we'll deal with that. WITNESS DAN: Your Honour. HIS HONOUR: Yes. WITNESS DAN: Can I just say that. HIS HONOUR: Professor Dan. WITNESS DAN: I completely agree with what Dr Biggs has said and I think that it was inevitable that this particular young woman was going to come to surgery. WITNESS SEKEL: Ron Sekel. I agree also but from a particular date and not from the 2012 dates. MORRIS: So, when do you say, Dr Sekel? WITNESS SEKEL: I'm going on the clinical changes that occurred in mid-February, going through her notes she was cruising with a level of discomfort, gradually, slowly increasing in the back. But then the hamstring sign became strongly positive in mid-February. And she started developing diffuse neurological type symptoms into the lower limb after that or at that time. And so, from reading that clinically as best we can without back up radiology, to me she became a surgical problem round about the middle of February 2013 and not before. I would have treated her conservatively, with a conservative attitude until mid-February and then a month or two afterwards, if conservative measures were implemented and she remained with her symptoms that would have precipitated discussions about getting on with surgery. I believe she became a surgical candidate after that time. And leaving her longer just left her in pain with all the problems that followed. MORRIS: Dr Drnda. WITNESS DRNDA: I agree partially with everyone. But I believe that Hailee Williams in June 2012 was probably grade two, not high grade and if conservative management, as it was outlined was instituted, she would have very good chance to remain in the same level and not to deteriorate in February. When she had MRI scan May - I think May, so a year later roughly. Scans showed depending how you measure it, how precise you are, it was borderline between two or three you can - instead late two early three. But not more than that. So, I cannot accept that she was in June 2012 grade three. She must have been grade two. And because there was no treatment - appropriate treatment instituted, she deteriorated over eight months. So, February 13 when she developed signs of, developed symptoms of irritation to nerve root. So, conservative management in my opinion, including avoidance of physical strain that she had at work, so basically leaving work, looking for alternative work, looking alternative sport activities, prefer swimming than anything else, would possibly lead or very likely, more likely than not, lead to stabilisation at the level that she was. And more likely than not she would avoid surgery. Because there was no treatment - appropriate treatment until February 2013, she deteriorated, she got worse and then she tipped over the point where she was then heading towards the surgery. MORRIS: Thank you. WITNESS BIGGS: If I may. Michael Biggs again. I don't actually agree, I'm afraid. I don't think she was a grade two in June 12. If we accept that that's when her symptoms occurred, in June 12, then we can call that her date of her diagnosis, assuming she'd had x-rays, let's call that the date of diagnosis. All the literature would suggest that increase slippage from the date of diagnosis occurs in under 4% of patients, so on the balance of probabilities, she hasn't changed her slip from the date of her diagnosis until the date of her surgery." [Emphasis added]
Dr Tuffley's evidence was to the following, similar effect: "WITNESS TUFFLEY: I think the - whether or not there was pre-existing trauma is irrelevant in this case. I think what we're seeing is the natural history of a condition which has been there for a long time, and it's just that as it progresses, various elements change the symptoms. I think, on the x-ray that was eventually taken in mid-2013, there's such a gross degree of disc degeneration that it indicates the condition has certainly been there for a long time. I think we're getting a bit hung up between grade 2 and grade 3. I mean, a grade 2 can be a 49% slip and a grade 3 a 51% slip, so I think it's - I think we're all agreed she had a significant slip around about the 50% mark, for some time, and I just think we're seeing the natural history, and I think when she's presented, she's fully mature, and a lot of conditions have a natural history where they get worse through adolescence, particularly in children, such as, say, scoliosis, for example, and then once their skeletally matured, it stabilises in terms of the degree of deformity. I don't agree with Dr Sekel, that conservative treatment would have resulted in the restoration of a more cuboid L5. I think those secondary changes in the doming of the sacrum and the doming of the underside of the L5 and the trapezoidal shape, they're all part of the natural history of her particular condition." [Emphasis added]
In response to Hailee Williams' so-called alternative case, that she would have fared better from surgery if it had been performed earlier, Dr Fraser submitted that, with the sole exception of Dr Sekel, all experts agreed that it would not be appropriate to operate before there was the manifestation of some neurological deficit. That was first observed by Dr Cree on 13 June 2013 and surgery followed immediately thereafter. In short, Dr Fraser submitted that I should conclude that even if Hailee Williams had been diagnosed earlier and she had been conservatively managed under expert orthopaedic and spinal care, she would not have come to surgery any earlier than she did in fact.
The burden of Dr Fraser's response to this question is that if, contrary to my conclusion, his breach of duty caused loss and damage to Hailee Williams that necessitated surgery, her current medical problems were entirely caused by that surgery and that its clinical inevitability means that he can successfully invoke the protection of s 5I of the Act. In other words, the development of Hailee Williams' current pain syndrome was an inherent risk of that surgery, to which it is exclusively referable, and that the risk could not have been avoided by the exercise of reasonable care and skill.
Although as will shortly appear, because of the view I have taken concerning the issue of whether conservative management could have avoided surgery, the issue does not arise, I do not consider that the development of Hailee Williams' pain syndrome on the evidence in this case has been shown to be separate and distinct from her antecedent medical condition that prompted the surgery that Dr Fraser contends carried the alleged inherent and unavoidable risk.

Consideration and conclusions

In my opinion, if Dr Fraser had correctly diagnosed Hailee Williams' anatomical spinal problem or condition on 24 May 2012, she would still have developed her current pain syndrome and associated problems even if her condition had been conservatively managed. The evidence about the likely ineffectiveness of conservative management is, in my view, quite compelling. Dr Fraser's breach did not cause her loss. That is because conservative management of her pre-operative pain syndrome would not have been enough to stem or stall the natural progression of a serious congenital anatomical spinal condition that led to it. Hailee Williams would also inevitably have come to surgery at some point after 20 June 2012 whether Dr Fraser had breached his duty or not. His breach did not cause the need for surgery or the consequences of the surgery if, contrary to my view, they were different to or more significant than her pre-surgical difficulties.
Moreover, in considering the competing evidence about this I have necessarily had regard to the onus of proof that Hailee Williams bears. I accept unconditionally that the evidence establishes that if her condition had been detected earlier, specifically when Dr Fraser reported on her condition to Dr Mutasim, she would in the first instance have been conservatively managed in the ways detailed by the experts. However, I am unable to accept that Hailee Williams had any more than a chance that this approach would have obviated the deterioration of her condition in the way that has occurred. In accordance with authority, such as Tabet v Gett cited earlier, Hailee Williams is required to establish that it is probable that conservative management would have avoided her current problems. The uncontroversial proposition that she had a chance of doing so, and that she has established the existence of that chance, does not suffice to prove that Dr Fraser is liable to her for his breach of duty.
It is important in this context to take note of the experts' views at which they arrived in conclave and which are recorded in the Joint Report of Experts re Causation dated 26 May 2020. Because Dr Sekel and Dr Drnda were members of that conclave, and because on one view their evidence in court was at odds with the opinions they expressed in the Joint Report, it is necessary to set out the terms of Question 10 in that report and the answers provided by the doctors concerned: "Question 10 If the plaintiff had been provided conservative management/treatment, including advice as to limiting physical activities in day to day life and in employment, at the times set out in question 9 above and she had limited her activities consistent with the advice she had received, then please provide your view as to her likely clinical course and in particular: 10.1. Whether her spondylolisthesis would have stabilised or progressed; and 10.2. Whether she would have come to some form of surgery notwithstanding the conservative management/treatment. The experts do not agree, with their respective answers and reasoning as follows: 1. Professor Dan Neurosurgeon and Dr Tuffley Orthopaedic Surgeon: The plaintiff's spondylolisthesis would have still progressed because it is an inherent characteristic of the disorder. Yes, she would have come to some form of surgery notwithstanding the conservative management/treatment. The condition is one which progresses almost despite treatment rather than because of the treatment. Any effect of the physiotherapy treatment by Mr Seabury in this case was likely to exacerbate symptoms but not likely to alter the natural history of the condition. The main cause of the plaintiff's gradually increasing symptoms was a loss of disc height due to degeneration, and that further 'displacement' if any would have only been a minor contributory cause of her increasing symptoms. In support of this contention I refer to the following literature: (i) the article tabulated 73 in the Conclave material 'The Natural History of Spondylolysis and Spondylolisthesis' by Beutler et al; (ii) to page 420 of Dr Sekel's added document 'Spondylolysis and Spondylolisthesis in Children and Adolescents' by Cavalier et al, (Attachment 1 to this joint report); (iii) 'Radiological Progression of Spondylolisthesis in Children and Adolescents' by Danielson et al, (Attachment 2 to this joint report); and (iv) 'Progression of Spondylolisthesis in Children and Adolescents; a long-term follow-up of 272 patients' by Seitsalo et al, (Attachment 3 to this joint report). Dr Drnda Neurosurgeon and Dr Sekel Orthopaedic Surgeon are in agreement with each other, with their respective reasoning as follows: 2. Dr Sekel, Orthopaedic Surgeon: Statistically, she would have stayed static with conservative measures, but after the development of the reduced straight leg raising more likely than not would have progressed. In June and December 2012, I think she would have stabilised out statistically but by March 2013 she needed surgery, and she would have progressed from then on. That is, by 28 March 2013 and 1 May 2013 she was progressing and was no longer stabilised. The progression was because of the absence of appropriate conservative measures. After 15 February 2013 she was on a progressive course. Before that she had a chance statistically of stabilising out. Further, I am of the opinion that the physiotherapy treatment by Mr Seabury did cause a progression of the plaintiff's condition. The lack of adequate conservative care precipitated this, not just the physiotherapy, because she was doing other things as well. Her exercise program contributed. Physiotherapy was not the cause of her needing surgery, but it was a contributing factor. 3. Dr Drnda Neurosurgeon: There was a good chance for her to stabilise the condition and not to proceed to surgery, if investigations started in May 2012 to June 2013; if she had the diagnosis and instigated a proper spinal physiotherapist and did everything the spinal physiotherapist found beneficial. Specifically: if she had been advised to stop working in childcare, then she would have good chance to stabilise. When in February/March 2013 her condition worsened, that was late, at that stage definitely she would progress to surgery. Prior to that there was no advice to stop working. There is evidence of athletes having grade II spondylolisthesis, athletes are fitter and stronger but they are also in high impact sports that with proper physiotherapy (and there are reports of them wearing a brace), they could improve and continue competing. The plaintiff did not need to go into competing sports, she just needed to adjust her lifestyle and vocational training. She needed to adjust all her life around her condition, so she would have had good chance to avoid surgery. With 6 or 8 months of a lack of conservative treatment, mismanagement when told not to quit her job, from June 2012 to February/March 2013, she lost that opportunity."
With the best will in the world I am unable to be satisfied that opinions such as "she had a chance statistically of stabilising out", "there was a good chance for her to stabilise the condition and not to proceed to surgery", "she would have good chance to stabilise", "the significant possibility the plaintiff would stabilise a certain level of back discomfort and avoid progression of her listhesis" or even Dr Sekel's qualified response, "Yes, if that's all she did" to the proposition that conservative management "would have made all the difference for surgery is no more than a small chance", translate into evidence from these experts that it was more probable than not that Hailee Williams would have been successfully managed with timely conservative treatment. Moreover, beyond understandable attempts to explain these views away, they are at odds with other opinions of at least equal weight from Professor Dan and Dr Tuffley that Hailee Williams' "spondylolisthesis would still have progressed because it is an inherent characteristic of the disorder" and that "she would have come to some form of surgery notwithstanding the conservative management/treatment" [Emphasis added]. The same doctors said that the "condition is one which progresses almost despite treatment rather than because of treatment". Professor Dan and Dr Tuffley thought that the main cause of Hailee Williams' gradually increasing symptoms "was a loss of disc height due to degeneration", otherwise described as "the natural history of the condition".
There is in any event a dispute among the relevant experts in this case about the precise grade or level of Hailee Williams' spondylolisthesis. The evidence and the competing views about this simply do not enable me to conclude which opinion is correct. Dr Biggs believed Hailee Williams had a Grade III spondylolisthesis and that conservative management would not have helped her. He referred in his evidence (quoted above at [218]) to various statistics related to whether certain patients had a low-grade or a high-grade spondylolisthesis. An article attached to the Causation Report indicates that "non-surgical management of the symptomatic patient with high-grade spondylolisthesis is generally less successful than with low-grade spondylolisthesis". However, Dr Drnda gave evidence that he believed Hailee Williams in June 2012 "was probably grade two, not high grade". Despite that, Dr Drnda was unable to say more than that "if conservative management, as it was outlined was instituted, she would have very good chance to remain in the same level and not to deteriorate in February" [emphasis added]. I raise these matters to emphasise that, accepting favourably to Hailee Williams for the purposes of the argument that Dr Drnda's view about the seriousness of Hailee Williams' condition is correct, he was even so unable to speak other than in terms of chances. His evidence in joint session that it was more likely than not that conservative management would have forestalled deterioration of her condition or the need for surgery is difficult to accept having regard to his other references to chance, his position taken in the conclave and the weight of competing expert opinions to the contrary.
Although it has already been referred to, Dr Drnda provided a report in support of Hailee Williams' case on 7 November 2019, about which he was cross-examined. With specific reference to the agreed regime of suitable conservative management, Dr Drnda was asked, and answered, the following question: "8(f) Had the advice been given in (c) above, and the plaintiff had followed that advice, then on the balance of probabilities, what was the likely course of the plaintiff's condition? There would be a significant possibility that the plaintiff would stabilise at a certain level of back discomfort and avoid progression of her listhesis."
I have set out the precise terms of the question and the answer to make it clear that Dr Drnda was specifically referred to the balance of probabilities but only answered in terms of possibilities.
I am in the circumstances unable to be satisfied on the balance of probabilities that earlier conservative intervention or management would have altered the course of Hailee Williams' progress. I am not satisfied that Dr Fraser's negligence was a necessary condition of the occurrence of the harm that she suffered. It follows that I cannot be satisfied that her loss and damage were caused by Dr Fraser's breach of duty in failing to diagnose her condition. I reiterate that I accept that conservative management and treatment would have been instituted in mid-2012 but for that breach of duty. Although it is not presently relevant to the determination of factual causation to consider what Hailee Williams would have done if Dr Fraser had not been negligent, I am satisfied that Hailee Williams would have followed advice if it had been given to her in accordance with the experts' opinions of what conservative management would have involved.

Conclusion

In these circumstances there should be judgment for Dr Fraser.

Damages

It remains nevertheless to consider the quantum of the damages to which Hailee Williams would, but for my conclusions, otherwise have become entitled.

Non-economic loss

Hailee Williams made the following submissions.
Hailee Williams is 27 years of age. At the time of the alleged negligence in 2012, she was approximately 18½ years of age.
She had successfully completed her higher school education and was enrolled in university to study Primary School Education. Her expectation was to become a primary school teacher and ultimately move into student counselling.
She deferred from university in 2012 and entered childcare so she could gain experience in managing children. Her rationale was to see whether she would enjoy working with children given her proposed career path. As a result of her medical condition, primary school teaching is no longer possible.
Hailee Williams is now significantly disabled by her pain condition. The defendants accept this. She has developed a chronic and entrenched pain syndrome which is a combination of nociceptive and neuropathic pain radiating from her lumbar spine to her lower limbs and feet. This has been of longstanding duration.
Ms Williams' chronic nociceptive and neuropathic pain syndrome has adversely affected her psychological state resulting in a chronic adjustment disorder with depressed and anxious mood within the context of chronic physical disabilities and pain disorder.
She suffered a severe emotional shock when she was told she required urgent surgery in order to avoid becoming a paraplegic. Following surgery, she has suffered ongoing pain. She has never been without pain.
The severity of Ms Williams' symptoms of anxiety and depression are predominantly driven by her intractable response to the pain complaint. Her psychiatric prognosis depends largely upon the resolution of her chronic pain syndrome and the severity of the physical symptoms.
The pain management experts consider her prognosis to be guarded. There are significant negative prognostic factors that may have an impact upon future treatment.
It is accepted that Ms Williams' nociceptive and neuropathic pain condition has affected her activities of daily living, mobility, mood, social functioning, and quality of life. Dr Fisher clearly pointed out her invidious cycle of pain and suffering.
She has functioned better during some periods than at other times. While she has attempted to maintain employment, which is to the defendants' benefit as it reduces her economic loss, her engagement in employment has been associated with pain and fatigue. She has worked despite her pain. She wanted to contribute to the family and enjoy a sense of meaning and contribution. Her inability to re-engage in the workforce will have a negative effect on her self-esteem and emotional wellbeing. If she can work in the future, she will be suffering pain.
Ms Williams always wanted to have children. Her ability to have a normal family life with children for whom she could care is substantially compromised and is essentially unavailable to her.
Andrew Rae provided unchallenged evidence as to the nature and extent of the care Ms Williams requires due to her significant pain syndrome and related issues. She has effectively lost her independence. Mr Rae describes her increased use of walking sticks or Canadian crutches when ambulating in and outside her home. He has witnessed her having "collapsing attacks". He does not know what causes these. He described, in detail, the progression of symptoms from numbness in her thigh which progresses to her dragging her foot before ultimately collapsing into an apparent state of unconsciousness.
Andrew Rae also described her difficulties with respect to domestic tasks, her pain issues and an array of problems he has witnessed including her difficulty sleeping, nightmares, pain management, activities of daily living, and social interaction. None of these observations was challenged.
He also detailed the plaintiff's worsening physical, emotional and psychiatric state. He described her living conditions and decreased mobility, the deterioration in her mental health and treatment, her financial, emotional and self-perception, her employment, and what he does to assist her activities of daily living. His evidence was not challenged.
Similarly, the evidence of Ronald Rae was unchallenged about what he observed and the care he provided to Ms Williams, including domestic and personal care.
It has been suggested that Ms Williams may respond to a targeted multidisciplinary and supportive pain management program that in conjunction with spinal cord stimulators. This would assist her to manage her pain but would not remove it completely. Notwithstanding her motivation to reduce her pain, there are significant negative prognostic factors, not the least of which is the fact that there have been seven years of post-surgery without adequate pain management or treatment.
The efficacy of a permanent spinal-cord stimulator can only be determined by her response to the 10-day temporary simulator trial. If she does not achieve a minimum pain reduction of at least 50 per cent, then the permanent stimulator will not be implanted. Moreover, there are inherent risks with spinal-cord stimulators: between 10 and 15 per cent of electrodes migrate and there is a requirement for repeat surgery to replace batteries. It is an invasive procedure and would need to be the subject of advice.
The defendants made the following submissions.
While there can be no guarantees of success and there are some negative prognostic factors, not the least of which is that almost eight years have passed since Hailee Williams' initial surgery, there are nonetheless several fairly significant positive indications. Ms Williams is still young, clearly motivated to receive treatment and improve her level of function and has expressed a preparedness to commit to appropriate pain management. Provided her medication regime is modified, including weaning off opioids and medicinal marijuana, and providing a multi-disciplinary and supportive treatment plan, possibly utilising a spinal cord stimulator, the defendants submitted that there are good prospects of a fairly significant reduction in her pain and improvement in her level of function. The defendants emphasised Associate Professor Boesel's opinion as to the evidence base for high frequency spinal cord stimulation and its efficacy in bringing about pain reduction.
While the evidence also indicates that Ms Williams suffers from an adjustment disorder, the defendants submitted that it seems primarily to be driven by her experience of pain. In addition, she had an entrenched adjustment disorder prior to the events in respect of which she sues. There is thus a likelihood on the evidence that even but for the alleged negligence, Ms Williams would have continued to experience at least some level of depressive symptoms as part of that disorder.
The defendants submitted that, in all the circumstances, after having regard to the objective seriousness of her injuries and disabilities and their subjective effect on her, the appropriate allowance for non-economic loss should be assessed as 55% of a most extreme case.
In my view, Hailee Williams is significantly and functionally debilitated and has effectively lost her independence in most facets of her life. The prospect of any successful resolution of her pain syndrome is small. Hailee Williams appeared to me to be destined for a life of significant incapacity, with her currently entrenched disabilities unlikely on one view to resolve at all and certainly unlikely to improve in the short term. It is difficult to see how even the best medical care and attention will produce a satisfactory resolution of her cycle of pain. She was also an active and energetic young woman, participating in regular sport and recreational activities which are now lost to her. It is difficult to imagine the level of frustration and distress that this loss will have caused.
I am not able to accept the defendants' assessment of her condition as only 55% of a most extreme case. In my opinion, Hailee Williams is entitled to damages assessed upon the basis that she is 82% of a most extreme case.

Past out-of-pocket expenses

The parties have reached agreement on the following out of pocket expenses for the period 13 June 2013 to 15 June 2020: Medicare $21,507.40 HCF (Private Health) $43,630.25 GAP Medical Expenses $21,202.05 Medication Expenses $13,250.00 Miscellaneous Expenses $10,665.00 TOTAL $110,254.70

Ms Williams has asked that any out of pocket expenses payable from 15 June 2020 to the date of judgment be reserved.

Future Out of Pocket Expenses

Hailee Williams made detailed submissions with respect to her likely future treatment requirements. Her submissions were as follows.
Dr Rutkowski and Dr Dalton held vastly different opinions about Hailee Williams' future treatment expenses based on her estimated long-term appropriate pain management. Dr Rutkowski considered the future to be bleak having regard the chronicity of her nociceptive and neuropathic pain condition, psychiatric disorder, emotional and social regression and physical care requirements. In contrast, Dr Dalton considered the solution to her pain disorder and disabilities lay in the implementation of core strengthening techniques in combination with appropriate pain management treatment. Dr Dalton has not entertained the probability that pain management may be unsuccessful.
The pain management experts acknowledge that a program involving the insertion of a permanent spinal simulator does not remove pain but enhances capabilities. Ms Williams submitted that they are far more circumspect in their opinions than Dr Dalton and that their experience and expertise are superior. As such, Dr Dalton's opinion on the likely response to further pain management should be given little or no weight.
The pain management experts conceded that Hailee Williams would require ongoing and regular multidisciplinary treatments for the remainder of her life, including further surgical procedures to replace things such as batteries and migrating electrodes. They conceded that even with that intervention, she would still require care and assistance. Moreover, there is a significant rate of relapse to opioid medications for the treatment of nociceptive and neuropathic pains following the successful completion of pain management programs.
Having regard to these qualifications, Hailee Williams maintained that provision should be made for the following: Equipment expenses total $67,546.00 Hi-Lo Bed, replacement every ten years $2,000.00* Canadian crutches, replacement every ten years $95.00 Walker, replacement every ten years $125.00 Provision of replacement of handrails every ten years Over toilet seat, replacement every ten years $150.00 Treadmill replacement, every ten years $2,000.00* Cross trainer replacement every ten years $4,000.00* Galileo vibration plate purchase, at the one-off cost of $11,000.00* Continence pads per year ($3.55 for 10) $130.00 Mattress protectors, with replacement every year $100.00 Wheelchair, from age 60 years to 80 years, with replacement every five years $2,500.00 Jason recliner chair with lift option, replacement every ten years $5,000.00* Installation of side by side drawer dishwasher at waist height, including cabinetry costs, one-off $5,000.00* Replacement cost of drawer dishwasher, every ten years $2,000.00* Heat packs x 2, replacement every four years $60.00 Shower chair, replacement every five years $100.00 Medical treatments total $220,065.00 Annual recurring: GP level B - 4 times $316.00 GP home visit annually $136.00 GP script - 6 times $71.00 GP multi-disciplinary care plan $265.00 Rehabilitation physician consultations $330.00 Sport and exercise medicine $330.00 Pain management consultations $555.00 Consultant psychiatry consultations $750.00 Psychological consultations ($250 every 6 months) $500.00 Physiotherapy consultations (6 per year) $780.00 Hydrotherapy (monthly) $780.00 OT review ($720 every 2 years) $360.00 Multidisciplinary team review ($1,500 every 5 years) $300.00 Spinal surgeon/orthopaedic review ($265 avg each 3 years) $88.00 Respiratory physician consultations ($330 every 5 years) $66.00 Physician case conference ($555 every 5 years) $111.00 Specialist urologist ($267 every 4 years) $66.75 ADAPT team reviews biannually ($700) $1,400.00 Subtotal $7,204.75 Average weekly amount $138.55 One-off ADAPT Intensive Pain Management Program and transport $18,421.60 Spinal cord stimulation (including trial and placement) with a deferral for ten-year pending weaning from opioid medications (i.e. $61,400.00) $100,000.00 Investigations total $42,008.25 Blood tests, biochemical analysis and urine $200.00* Urinary tract ultrasound (every two years) $197.50* X-ray and MRI spine ($1,825 every three years) $608.33* CT spine ($765 every 5 years) $765.00* Neuromuscular electrodiagnosis ($555 every 5 years) $111.00* Chest or pelvic x-rays (av $122 every 6 years) $20.30* Shoulder ultrasound ($395 every 7.5 years) $52.67* CT abdomen ($1,525 every 7.5 years) $203.30* Subtotal $2,158.10 Average weekly amount $41.50 Medication costs total $115,185.00 Lyrica $513.00 Fluoxetine 20mg (20mg daily PBS $39.50 for 28 (13 treatments)) $513.00 Coloxyl (PBS $39.50 for 100 (1/2 treatment) for 12 months) $20.00 Noroxin/Alprin/Keflex (not regular PBS for $39.50 for 14) (1 treatment) $40.00 Panadol 500mg tds or Panadeine $306.00 Microlax/microlet enemas $20.00 Multivitamin $237.00 Endone $395.00 Nurofen $500.00 Volataren cream $158.00 Fish oil capsules $200.00 Magnesium $158.00 Temazepam $158.00 Melatonin (Circadin) $252.00 Cranberry $221.00 Clexane injection PRN $37.70 Norspan $1,696.76 Palexia ($41.00 per 28 tablets 1 per day) $492.00 Subtotal $5,917.46 Average weekly amount $113.80

Hailee Williams has provided evidence regarding the benefits she has received whilst undertaking the medical marijuana trial in which she has been participating since July 2019. The current cost of her medical marijuana, whilst on the government trial, is $224.00 per week. The cost thereafter on a private basis is $448.00 per week ongoing.
These costs are claimed on the basis the trial will remain ongoing for a further six months and that beyond that, Hailee Williams wishes to avail herself of ongoing medical marijuana private scripts indefinitely.
The total cost of this medication, as outlined in Hailee Williams' schedule of damages, is $467,040.
The defendants drew attention to the fact that this is an area where there is a significant difference between the views of Dr Dalton and Dr Rutkowski. Hailee Williams claims the total sum of $1,195,764. The defendants have conceded that only some (as indicated) of the following amounts are reasonable: 1. Equipment expenses totalling $5,224.80, including a suitable bed at $2,000 with replacement every 15 years, heat packs at $50, with replacement every 4 years, a shower chair at $250, with replacement every 5 years and a recumbent bike or spin bike at $1,000, with replacement every 10 years. 2. Medical treatment totalling $139,133.43, including four GP visits per annum at $79 per visit, pain management at $18,421.60 initially and then two follow up visits per annum at $350 per visit, a spinal cord stimulator at $100,000, with deferral for 1 to 2 years pending weaning from medication (so that the deferred sum is $92,500), orthopaedic/spinal surgeon review every 3 years at $250 per visit and an additional psychiatric review once a year, at $350 per visit. 3. No medical investigation expenses. 4. No additional medical procedures, other than the spinal cord stimulator procedure, which has been allowed for separately. 5. No additional allied medical or adjunct therapies other than physiotherapy, which will be provided as part of the pain management program and has been allowed for separately. 6. Additional medication expenses of $4,472.66, including four years of Lyrica, Panadol or Panadeine and Duloxetine in the period during which weaning off medications will occur (which comes to $23.59 per week on the costings set out in the Statement of Particulars). Additionally, a buffer type allowance of a further $5,000 is made for occasional analgesics thereafter, in total amounting to $9,472.66.
I accept the defendants' position with respect to medical investigation expenses. There is no suggestion that Hailee Williams' orthopaedic condition will deteriorate other than at a rate commensurate with her age-related status as she matures. The need for the claimed suite of investigations does not appear to arise from the enduring pain state that is the main contributor to her current invalidity.
I consider that the cost of additional medical procedures, other than the spinal cord stimulator, are also not recoverable. Physiotherapy and the medical marijuana costs should be allowed upon the basis that they relieve the defendants of the consequences of what would be unrelieved or increased suffering if some amelioration of the enduring pain syndrome can be achieved in these ways.
The items marked with an asterisk in the preceding tables under this head of damage should not be allowed.

Past economic loss

The defendants accept that but for her injury, Hailee Williams would likely have pursued a career as a primary school teacher. She would have studied full-time for approximately three years between 2012 and 2014, subject to possible deferral for travel so that she would have suffered no loss in 2015. Since then, the defendants accept that Hailee Williams would have earned approximately $53,600 net per annum.
The parties reached agreement on past economic loss as follows: Past Loss of Income $174,459.00 Interest on Past Loss of Income $7,252.62 Past Loss of Superannuation $19,191.00 Interest on Past Loss of Superannuation $796.43 TOTAL $201,699.05

These agreed figures represent an acceptance of Ms Williams' pleaded claim as outlined in her second further amended statement of particulars filed on 3 June 2020.

Future economic loss

Hailee Williams and the defendants have agreed on the following matters: 1. But for her injuries and disabilities, Ms Williams would have achieved an academic result that would have allowed her to work as a NSW primary school teacher. 2. The applicable award setting out remuneration for a NSW primary school teacher is the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2020. 3. Ms Williams would have worked to retirement at age 67 years. 4. A reduction for 15 percent for vicissitudes is required to be applied to Ms Williams' future economic loss claim. 5. Ms Williams would have had a baby at age 31 and she would have taken one year of maternity leave (being paid 14 weeks full pay in accordance with the award) and returned thereafter to full time employment.
There is no further agreement with respect to future economic loss. Ms Williams made the following submissions.
Ms Williams was highly motivated and would have enjoyed the fruits of a full-time teachers' salary to age 67 years. She has expressed an interest in returning to work provided her pain condition was under control. She could perform some administrative work.
Dr Rutkowski was pessimistic about Hailee Williams' ability to return to any meaningful work for which she had been trained or had experience due to her chronic pain disorder. She expressed considerable doubt that she would return to employment notwithstanding completion of a pain management program. Her employment prospects were dependent upon her obtaining a sedentary position that allowed her to get up and move around periodically and a sympathetic employer who would allow her to modify her working environment and conditions. Dr Rutkowski expressed serious concerns having regard to Ms Williams' significant physical and emotional condition since 2018. She restated her pessimism surrounding Ms Williams re-engaging in the open workforce, having passed the times where she could meaningfully re-educate vocationally due to her chronic pain syndrome.
Associate Professor Boesel stated that a pain management program with effective spinal cord stimulation would not resolve Ms Williams' pain but would give her greater flexibility in work choices. However, he conceded there was no guarantee she would positively respond to temporary spinal cord stimulation and therefore a permanent spinal-cord stimulation would not be available. Accordingly, her nociceptive and neuropathic pain syndrome would persist.
Dr Girdler considered that her diminished functional hierarchy of self-care and other dysfunction would cause potential employers to look elsewhere rather than to employ someone with challenging attributes. Associate Professor Boesel, Dr Fisher and Dr Virgona agreed that Ms Williams would have difficulty in re-entering the labour market or retraining. The totality of the evidence, despite her desire to re-engage in employment, persuasively suggests that it is unlikely Ms Williams will return to full-time work even with successful pain management treatment.
Ms Williams therefore claims the loss of a primary school teacher's wages (or in the alternative a school counsellor's wage), and superannuation entitlements, until she turns 67. Based on the award, the present wage for a qualified primary school teacher or school counsellor is $112,163 gross per annum (being approximately $1,600 nett per week).
Ms Williams claims $1,600 net per week for 41 years based on the 5 per cent multiplier tables. This comes to $1,479,680. Applying a 15 percent discount for vicissitudes produces $1,257,728. Ms Williams also claims the loss of superannuation at 11 percent to the age of 67 years, in the sum of $138,350. Her total claim for future economic loss including superannuation is therefore $1,396,078.
Hailee Williams presented as an intelligent and resourceful woman. I can see no basis upon which to conclude that, but for her current disabling condition, she would not have embarked upon the posited career path or that her loss of income in the circumstances would not have been as she claims.
The defendants' response was in the following terms.
Having accepted the premise that but for injury, Hailee Williams would have continued as a primary school teacher and progressed over time through various pay bands, a reasonable estimate for her likely earnings into the future is $70,000 net per annum ($1,346 net per week).
The defendants contend that the appropriate finding as to the future, based upon the assumption that Hailee Williams participates in a pain management program and probably has a spinal cord stimulator successfully implanted, is that while she will not earn anything for approximately the next two years, she will then be fit to return to roughly half the normal hours of work, either in an administrative position in the child care industry or possibly as a primary school teacher after retraining. Accordingly, the defendants allow $1,346 net per week as a loss for the next two years, then reduced to $673 net per week for the balance of her working life through to age 65.
The sum of $1,346 net per week over two years on the 5% table equates to $133,792. The sum of $673 net per week for 37 years, deferred for 2 years less 15% for vicissitudes equates to $463,644. Lost superannuation based on retirement in 37 years and consistently with the approach in Najdovski v Crnojlovic (2008) 72 NSWLR 728; [2008] NSWCA 175, amounts to $66,487, producing a total future economic loss, inclusive of superannuation, of $663,923.
In my opinion, the future loss of earnings claimed by Hailee Williams is reasonable having regard to the evidence of her current capacity and the prospect of improvement. It follows that her additional claim for an economic buffer should be disallowed, as the vicissitudes that are taken into account in discounting this part of her claim necessarily make allowance for a change in her circumstances.

Past gratuitous care

Meigan Williams, Andrew Rae and Ronald Rae have given unchallenged evidence about the amount of care they have provided to Hailee Williams over the last seven years.
There was some disagreement between Dr Rutkowski and Dr Dalton regarding whether such care was necessary. Dr Dalton's opinion with respect to Ms Williams' injuries and disabilities is at odds with that of the pain management experts who consider that she suffers from a genuine and severe pain syndrome affecting all aspects of her life including her activities of daily living, domestic functions, social interaction and mood. The defendants' submissions appear to have acknowledged that discrepancy.
Hailee Williams has submitted that the evidence of Dr Rutkowski should be preferred over that of Dr Dalton: Dr Rutkowski is a spinal rehabilitation physician and her curriculum vitae outlines her significant experience with patients who have suffered spinal cord injuries. Hailee Williams' neuropathic pain has been caused by a spinal injury and as such Dr Rutkowski is better placed to make a prescription for appropriate care and treatment. Her assessment and recommendations are consistent with the largely unchallenged lay evidence.
Dr Rutkowski also undertook a thorough assessment of Ms Williams and attended her home on two occasions to assess her needs and future requirements. Dr Dalton, a sports rehabilitation physician, did not do so.
Hailee Williams claims the sum of $162,786 as particularised.
This claim is reasonable, is supported by the evidence and should be allowed. It has not been suggested, nor in my view could it have been, that those who spoke of the assistance provided to Ms Williams were giving other than truthful evidence. Moreover, the nature of the assistance given draws support from the opinions expressed by Dr Rutkowski concerning Hailee Williams' current difficulties.

Future gratuitous/paid care

Hailee Williams has given evidence that she can achieve very little by way of domestic tasks and often requires assistance with personal care. While she attempts some household tasks, the evidence suggests this is sporadic and her capacity to perform those tasks is unpredictable.
Ms Williams also provided evidence that if she were awarded damages, she intended to engage a paid care provider to assist with domestic tasks and personal care. In particular, she gave evidence that she desires to have a romantic relationship with her fiancé, rather than a carer/patient relationship.
Both Dr Fisher and Associate Professor Boesel gave evidence in joint session that her supportive relationship and close family were important prognostic factors. If those relationships unravel, she is at significant risk of psychological regression and consequent reduced capacity to adapt her life to pain.
Hailee Williams submitted that where she is not provided with commercial care and forced to rely on the ongoing assistance of her family members, unreasonable strain and pressure would be placed on her relationship with her fiancé and family. Given that these relationships are essential for her social and emotional wellbeing, and her capacity to cope with a significant pain condition, she submitted that she ought to be provided with commercial care.
Andrew Rae, Ronald Rae and Meigan Williams gave unchallenged evidence about the extent of the care which she requires as the result of her significant and severe nociceptive and neuropathic pain syndrome. That condition has adversely affected her activities of daily living, mobility, mood, social functioning, and quality of life.
Both Dr Rutkowski and Dr Dalton agreed that Hailee Williams currently requires assistance with activities of daily living including some aspects of meal preparation, cleaning, shopping, laundry, making the bed, gardening, handyman tasks and the like. The main difference of opinion is whether this is reasonable to be ongoing into the future and whether her care requirements would reduce if pain management strategies are introduced. This largely depends on whether such strategies are likely to be effective. Ms Williams has established a need for extensive care.
Hailee Williams submitted that on balance it is unlikely there will be a substantial or sustained positive response to pain management, spinal cord stimulation or any other technique. The efficacy of such treatment is speculative, and the defendants have failed to discharge their onus that it would result in significant improvement.
Dr Rutkowski stated considered that Hailee Williams' future requirements were considerable. She considered that, on the assumption she was living alone and in a suburban house, Hailee Williams required three to four hours per week for household cleaning, two hours per week for meal preparation and other light activities related to cooking, one hour per week for laundry, including changing sheets and similar activities, two hours per fortnight for gardening and outdoor activities, and two hours per fortnight for handyman assistance. Dr Rutkowski considered that it would be reasonable for Ms Williams to have daily assistance with self-care (even if on a standby basis) and other activities of daily living.
Hailee Williams submitted that it would be reasonable for her to be provided with two hours of daily paid assistance for combined personal care (standby) and domestic assistance tasks. It would be reasonable for this care to be provided every morning to allow Ms Williams to shower safely and dress with standby assistance while her bed is made, heavier parts of daily meal preparation are performed, with more onerous aspects of daily kitchen cleaning and parts of the weekly laundry, household cleaning, and shopping undertaken later.
Ms Williams submitted that an average hourly rate of $55.00 is reasonable in the circumstances when considering where she currently resides. The rates are well within and below the National Disability Insurance Scheme guidelines and therefore most likely indicative of the relevant market rate.
With respect to her current and future transportation requirements, Dr Rutkowski considered that, having regard to her opioid medication regime, the pain management experts' comments on negative prognostic factors and guarded prognosis and the known high relapse rates following pain management treatment, Hailee Williams required seven hours per week of transportation assistance for general outings and medical appointments. If she does not return to work, Ms Williams will likely require further transport assistance over and above that identified by Dr Rutkowski. According to Dr Rutkowski, Ms Williams will require an additional five hours per week of care from age 65 years.
Hailee Williams claims the sum of $1,355,144 as set out in the second further amended statement of particulars filed 3 June 2020.
As already noted, the significant difference of opinion between Dr Rutkowski and Dr Dalton concerns the question of whether Hailee Williams' care needs will continue unabated permanently into the future or will abate progressively if anticipated pain management strategies are successful. Ms Williams' position is that on balance it is unlikely that there will be a sustained or substantial positive response to pain management, spinal cord stimulation or any other technique, and that the efficacy of such treatment is speculative.
Clearly enough, assessments of such requirements can only be informed by expert opinion to a limited degree. That is for the obvious reason that even expert medical practitioners experienced in the field of rehabilitative medicine are only marginally better able to predict the future than me. I have already expressed a preference for Dr Rutkowski's approach, as she been more closely involved with Hailee Williams and is objectively sympathetic to her predicament. Even so, the defendants are entitled to the benefit of the uncertainty that attends the suggestion that Hailee Williams' condition will never improve, a proposition that cannot presently be tested or decided.
Doing the best I can, I would allow under this head of damages an amount of $900,000.

Buffer for future care

Hailee Williams has a history of falls. Each of the lay witnesses has observed them. There is a record of a recent fall in Dr Chow's notes where she injured her wrist. Hailee Williams has claimed a "buffer" for future care on the basis that any of the following complications may arise as a result of her neurological injuries, spinal injury, treatment requirements and spinal cord stimulator.
These complications could include spinal cord stimulator electrode migration, infection or arachnoiditis, further traumatically induced orthopaedic injuries due to falls and carpal tunnel syndrome due to reliance on crutches. Ordinary accidents that befall uninjured people will have a greater impact on her due to an already compromised level of functioning.
Hailee Williams' claim is currently made upon the basis that she continues to remain in a relationship with Andrew Rae. If she were to live alone, her care needs would correspondingly increase. If she were to injure herself, she would require a heightened level of attendant care, with tasks such as dressing, bathing, transfers, ambulating, medical attendances, and some additional domestic assistance.
Hailee Williams conceded properly that the amount, if any, of increased future care cannot be determined with any certainty. However, she maintained that provision is required in order adequately to compensate her for contingencies. An assessment needs to be made of the likelihood that she may be injured in a way that increases her future care needs. Hailee Williams maintains that she has established a propensity to fall and injure herself. She submitted that the award of a sum by way of a buffer is therefore reasonable to take account of matters that are incapable of prediction with any degree of certainty, and that this should be done upon the basis that she will require an additional five hours of daily assistance. This claim is promoted and discounted on the basis that there is a 70 percent chance this will not occur.
Accordingly, based on a 70 per cent discount, Hailee Williams claims a buffer calculated at the rate of 5 hours per day attendant care and domestic assistance or 35 hours per week, at $55 per hour amounting to $1,925 per week x 1,017.5 (5% discount rate) or a total of $1,958,687.50. After a discount of 70 percent, the total buffer claimed is $587,606.25.
I do not consider that this head of claim is maintainable. Once again, anything in the future is possible. The claim for an economic cushion is based upon the unestablished proposition that any change in Hailee Williams' circumstances will be disadvantageous. There must logically be a corresponding proposition to the opposite effect. An economic buffer should in my view apply in circumstances where a future need exists but where the amount to compensate for it cannot be quantified because of uncertainties and unpredictable events. The sum allowed for future care already takes into account these matters in a way that reflects a balance between the competing positions of the parties. The sum claimed under the present head would in my view amount to double, or at least overlapping, compensation for the same loss.

Conclusion

Hailee Williams' claim in summary can be seen in the following table: Non-economic loss at 85% $559,500.00 Past out of pocket expenses $110,254.70 Past economic loss $201,699.05 Future economic loss $1,396,078.08 Past gratuitous care $162,786.00 Future care $1,355,144.00 Buffer for future care $587,606.25 Equipment expenses $67,546.00 Medical treatments $220,064.83 Medical investigations $42,008.25 Medication costs $115,185.63 Medical Marijuana $467,040.00 Total $5,284,912.79

By reason of the views I have expressed, Hailee Williams' loss and damage must be quantified differently to the schedule in the preceding paragraph. In the event that it becomes necessary, I will invite the parties to provide me with a corresponding schedule that substitutes the appropriate amounts calculated by reference to my conclusions.

Orders

I will in the circumstances make the following orders: 1. Judgment for the defendants. 2. Costs reserved.

Amendments 02 June 2021 - Date corrected in [130], [153] and [199] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2021

Williams v Fraser

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (39 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (16)

Cited By (1)