[2016] HCA 18
Chappel v Hart (1998) 195 CLR 232[1998] HCA 55
Fox v Percy (2003) 214 CLR 118[2003] HCA 22
Lee v LeeHSU v RACQ Insurance LimitedLee v RACQ Insurance Limited (2019) 266 CLR 129[2019] HCA 28
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 [1990] HCA 20
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
[1994] HCA 4
Tabet v Gett (2010) 240 CLR 537
[2010] HCA 12
Williams v Fraser [2021] NSWSC 416
Warren v Coombes (1979) 142 CLR 531
Judgment (15 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
[This headnote is not to be read as part of the judgment]
The appellant was born with a condition known as a pars defect or dysplastic spondylolysis. The condition was asymptomatic until 2009 when the appellant was 15 years of age and she began to experience pain in her left hip. This was treated conservatively. She again developed pain in the left hip in March 2012 at 18 years old, for which her general practitioner referred her for X-rays, an ultrasound and orthopaedic review. A month prior, the appellant had commenced work at a child care centre, which required repetitive lifting from the ground to waist level.
The appellant's general practitioner referred her for X-rays of the hip and pelvis which were taken on 24 May 2012. Although (as was not disputed) the X-rays revealed the presence of the congenital pars defect, a report prepared by the respondent, a radiologist, failed to identify the defect. The appellant's orthopaedic surgeon, Dr Stening, was provided with the X-rays and also did not identify a pars defect, relying on the respondent's report; rather, Dr Stening made a diagnosis of left and right ASIS apophysitis, ordered conservative cortisone treatment and referred the appellant to a physiotherapist.
The appellant's symptoms did not abate and on 5 June 2013, she had an X-ray of her spine which demonstrated a forward slipping of one vertebral disc on another (known as 'spondylolisthesis') due to the pars defect. The appellant was referred to another orthopaedic surgeon who performed spinal surgery upon her as a matter of urgency. The appellant developed a secondary chronic pain syndrome as a direct consequence of the surgery, notwithstanding that (as was accepted) the surgery was performed competently.
The appellant brought proceedings against the respondent, alleging that his failure to identify either spondylolysis or spondylolisthesis constituted a breach of his duty of care, the consequence of which was that Dr Stening did not institute appropriate clinical management or investigation and she suffered progressive damage to her spine that could have been avoided if her condition had been properly diagnosed and treated from 24 May 2012. At trial, the respondent admitted that his failure to identify the pars defect constituted a breach of the duty of care that he owed the appellant, but denied that it caused the appellant's chronic pain syndrome.
Although the case was pleaded and, until the conclusion of the trial, conducted on the basis that the appellant's condition as at 24 May 2012 included spondylolisthesis, at the last minute it was contended that, as at that date, she suffered only the lesser condition of spondylosis. Had that been correct, and had she been treated appropriately for that condition, she may have been able to avoid the surgery that gave rise to the chronic pain syndrome.
Having regard to the expert evidence, the primary judge was unable to be satisfied that, on the balance of probabilities, earlier conservative intervention or management would have altered the progression of the appellant's condition or averted the need for surgery. Accordingly, the primary judge held that the appellant had not established a causal link between the respondent's failure to diagnose the appellant's condition and the need for the surgery and the consequent chronic pain syndrome.
On appeal, the appellant contended that the primary judge erred by: (1) failing to address the appellant's submissions on causation; (2) failing to provide adequate reasons on the issue of causation; (3) failing to make relevant findings on the issue of causation; (4) making errors in the factual analysis and reasoning underpinning the causation conclusion; (5) misdirecting himself in his analysis of the evidence of two medical practitioner witnesses by finding that their evidence "amounted to a loss of a chance".
[3]
The Court (per Simpson AJA, Macfarlan and Gleeson JJA agreeing) dismissed the appeal with costs and held:
On the basis of the expert evidence, including the first and second conclave reports and the joint report of orthopaedic specialists, the conclusion that the appellant already had the condition of spondylolisthesis was inevitable, notwithstanding the radiologists' evidence that radiological signs of spondylolisthesis were not present on the 24 May 2012 X-rays. Accordingly, the primary judge was not shown to have been in error in approaching the question of causation on the basis that the appellant already had the condition of spondylolisthesis: at [88]-[89] per Simpson AJA; at [5]-[6] per Macfarlan JA.
The appellant's submission that the primary judge mischaracterised the appellant's case should be rejected, as the appellant's contention that her continued work in the child care centre caused disc or other damage was not a case made at trial: at [102] per Simpson AJA. There was no evidence that the appellant's employment between May 2012 and June 2013 in fact aggravated her condition or caused disc or other damage: at [98] per Simpson AJA. In any event, the appellant did not pursue a separate case of damage constituted by disc and other damage; the cause of action on which the appellant sued was based upon damage constituted by her chronic pain syndrome: at [100]-[101] per Simpson AJA.
The overall medical evidence was insufficient to establish, on the balance of probabilities, that the appellant would have "stabilised out" and avoided surgery. It follows that the primary judge did not err by finding that, regardless of the respondent's negligence, the appellant inevitably faced surgery: at [110]-[123] per Simpson AJA.
It is conclusively established that, in a claim for damages for personal injury caused by medical negligence, proof of a lost opportunity for a better outcome of treatment is insufficient; damage must be established on the balance of probabilities: at [127] per Simpson AJA. The appellant's proposition that the primary judge proceeded on the basis that the appellant's claim was for "loss of a chance" is untenable. The primary judge was acutely aware of the distinction between proof of damage on the balance of probabilities and proof that appropriate treatment would have offered the appellant a chance of a better outcome. As for the appellant's submission that the primary judge erred by failing to determine the matter from a Malec v J C Hutton Pty Ltd perspective, that decision was concerned with the assessment of damages after liability had been established and as such is not relevant to this appeal: [128]-[131] per Simpson AJA.
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20; Sellars v Adelide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4; Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 considered.
[4]
Judgment
MACFARLAN JA: I agree with the orders proposed by Simpson AJA and the reasons that her Honour gives.
I add the following observations.
The appellant's case at the conclusion of the hearing at first instance and on appeal focused almost exclusively on the proposition that she did not, by the time of her X-ray in May 2012, suffer from the condition of spondylolisthesis, that is, a condition involving slippage of a disc in her spinal cord. As Simpson AJA points out, this focus was no doubt driven by an appreciation that the evidence taken as a whole indicated that if she had that condition at that time different advice to that in fact given by Dr Stening would not have obviated the need for the surgery that the appellant subsequently had in 2013 and which led to her chronic pain condition.
There was some support for the appellant's proposition in the radiologists' evidence but the evidence of the causation experts was to the contrary of it. The views of the latter are to be preferred for the reasons given by Simpson AJA. These include the following considerations.
First, the radiologists gave evidence on the question of liability, that is, whether the respondent acted reasonably, with reference principally to what was or should have been apparent to him from the May 2012 X-ray. They were not therefore considering the appellant's actual condition at that time and were not entitled to take into account hindsight.
On the other hand, the task of the causation experts was to consider the appellant's actual condition in May/June 2012, not simply what might or might not have appeared from the May 2012 X-ray. Whilst they explained that disc slippage was not, or may not, have been immediately apparent from the May 2012 X-ray, subsequent information, and in particular the 2013 X-rays, assisted them to conclude that the appellant did suffer from the condition of spondylolisthesis in May/June 2012. They did therefore, permissibly, take into account hindsight and, unlike the radiologists, did address the very issue embodied in the appellant's proposition.
GLEESON JA: I agree with the orders proposed by Simpson AJA, for the reasons her Honour gives. I also agree with the observations of Macfarlan JA.
SIMPSON AJA: In 2015 the appellant, Hailee Williams, brought proceedings in the Common Law Division of the Supreme Court claiming damages arising out of what she alleged to be breaches of the duty of care owed to her by three medical professionals. The first named defendant was Dr John Fraser (the respondent to the present appeal), a specialist radiologist; the second was Dr Michael Stening, an orthopaedic surgeon; the third was Mr Craig Seabury, a physiotherapist. At some point the proceedings against Mr Seabury were discontinued. The appellant's claims were governed by the Civil Liability Act 2002 (NSW) (Civil Liability Act).
[5]
Medical context and background
The issues in the trial and the appeal involve some complex medical concepts and terminology. At the request of the Court, the parties provided an agreed glossary of medical terms and concepts that need to be understood. The following, which I understand to be uncontroversial, is derived, in part, from the agreed glossary, in part from reports of various medical practitioners, and their oral evidence, and from articles from medical journals that were tendered in evidence. Unanimity as to the meaning of terms and the incidents of the medical conditions discussed is not always evident. The list below is intended to provide context and background to what follows.
Pars defect is a defect or stress fracture of the bones;
Pars interarticularis is the small segment of bone joining the articulating facets of a vertebra; a site where fractures (spondylolysis) frequently occur;
Spondylolysis (a term which appears to be interchangeable with "pars defect") is an anatomical defect or fracture of bones of the lower spine, frequently at L5 region. Spondylolysis, although a common cause of back pain, can exist asymptomatically. Spondylolysis can progress to spondylolisthesis;
Spondylolisthesis is a forward slipping or displacement of one vertebral disc on another. Five categories of spondylolisthesis are recognised, of which only three need here be noticed: "dysplastic", "isthmic", and "traumatic". Dysplastic and isthmic spondylolisthesis are congenital (although one study describes two categories of isthmic spondylolisthesis as caused by stress or repetitive fractures). Three grades of spondylolisthesis are recognised: Grade I (least serious) 0-25% slip; Grade II 26-50% slip; and Grade III (51%+ slip) (although some reference was made in the medical evidence to Grades IV and V). Spondylolisthesis can occur in children and adolescents, but is less likely to progress after a stage called skeletal maturity has been reached, meaning that the growth plates of the bones have ossified and the musculoligamentous tendons tightened. Skeletal maturity typically occurs at around the early 20s. Spondylolisthesis may be aggravated by contact sports, heavy lifting, or repetitive activities involving lumbar extension or flexion.
The difference between spondylolysis and spondylolisthesis is important. Spondylolysis can exist in the absence of spondylolisthesis. Both are diagnosed on radiology. The radiological sign of spondylolysis is called a "Scotty dog collar", as described in a joint report of orthopaedic surgeons (noting that the reference is to spondylosis, a general term, according to the agreed glossary, denoting "spinal problems"). The radiological sign that indicates the presence of spondylolisthesis is called an "inverted Napoleon hat".
[6]
Factual background
The appellant was born in March 1994. Although it was not apparent until much later, she was born with a pars defect (dysplastic spondylolysis). Notwithstanding that condition, the appellant enjoyed an apparently unremarkable childhood and early adolescence, engaging in normal sporting and other activities. In September 2009, at the age of 15, the appellant began to experience pain in her left hip. She was referred by her general practitioner, Dr Amin Mutasim, to Dr Stening for "opinion and management". Dr Stening diagnosed "iliac apophysitis left anterior superior iliac spine" (which I understand to be an inflammation in the hip joint), and advised conservative management. There does not appear to be any controversy about this diagnosis or the treatment Dr Stening then recommended.
In about 2011, aged about 17, the appellant took employment as a waitress in a Chinese restaurant. She was able to perform the necessary tasks without difficulty. She also regularly attended a gymnasium and engaged in kick boxing events, which also, apparently, did not cause her any difficulty. In about November of that year the appellant complained to Dr Mutasim of right sided lower back pain.
In March 2012, at the age of 18, the appellant commenced work in a child care centre, Kindalin. The employment, as might be expected, involved her in lifting and carrying children, some cleaning duties, changing nappies, carrying stretchers on which children had their "rest period", and sometimes kneeling to attend to a child on a stretcher. Initially, the appellant managed these tasks and activities without difficulty, but after a month or so she began to experience pain in her left hip, followed by pain in the right hip and back pain.
On 21 May 2012 the appellant reported to Dr Mutasim bilateral hip pain and tenderness over the left anterior iliac spine at L4/5 region. Dr Mutasim referred her for X-rays of both hips and pelvis, and ultrasound of both hips, noting, in the clinical history, pain in both hips and "lower lumbar", and referred her again to Dr Stening for opinion and continuing management. The X-rays ordered by Dr Mutasim were taken on 24 May 2012. Having examined both X-rays, Dr Fraser reported that there were no abnormalities of the hip joints and that there was no evidence of arthropathy or other bony abnormality. As later examination showed, the X-ray film, in fact, revealed the presence of the congenital pars defect/dysplastic spondylolysis. Dr Fraser did not make any mention of the pars defect in his report. Whether the X-ray also showed evidence of spondylolisthesis became, at a late stage in the trial, an issue. The appellant saw Dr Stening on 20 June 2012.
[7]
The proceedings in the Supreme Court
As indicated above, the appellant brought proceedings against Dr Fraser, Dr Stening and Mr Seabury. The proceedings against Mr Seabury were discontinued. The cases the appellant sought to make against Dr Fraser and Dr Stening were finally formulated in a Third Further Amended Statement of Claim (to which I will refer as the statement of claim) filed in Court on 1 July 2020, well after the trial commenced. It is apparent, however, that it was made available in draft at least by the commencement of the trial, and an amended defence, specifically related to the amendments, was filed on the same day.
[8]
(i) The pleadings
The appellant's claim against Dr Fraser centred on his interpretation and report of the 24 May 2012 X-ray. Her case was that the X-ray disclosed the presence of both spondylolysis and (importantly) spondylolisthesis, and that Dr Fraser's failure to identify either condition constituted a breach of the duty of care he undoubtedly owed her. That the appellant's case encompassed the existence of both conditions can clearly be seen from six of the 15 particulars of negligence subscribed to par 91 of the statement of claim. Those particulars were that Dr Fraser:
"(c) Failed to identify and/or report on, properly or at all, the presence of the fifth lumbar segment with a right-sided pars defect in the Plaintiff's pelvic and/or bilateral hip X-rays dated 24 May 2012;
(e) Failed to identify and/or report, properly or at all, that the Plaintiff's abnormal image of spondylolysis may be indicative of instability on or about 24 May 2012;
(f) Failed to identify and/or report, properly or at all, that the Plaintiff's abnormal image of spondylolysis may be indicative of a right sided pars defect on or about 24 May 2012;
(g) Failed to identify and/or report on, 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;
(h) Failed to identify and/or report on, properly or at all, the presence of the 'Scotty dog collar' sign on the Plaintiff's pelvic and bilateral hip X-ray dated 24 May 2012;
(j) Failed to recommend, properly or at all, further radiological imaging of the lumbo sacral junction to investigate the Plaintiff'[s] right sided pars defect on or about 24 May 2021."
Having regard to events that occurred at the end of the trial, and to the grounds of appeal, particular (g) is of special significance. It carries the clear implication that the 24 May 2012 X-ray disclosed (contrary to Dr Fraser's report) the presence of spondylolisthesis as well as spondylolysis.
The appellant pleaded in par 91A of the statement of claim that the consequence of Dr Fraser's breach of duty was that Dr Stening did not institute appropriate clinical management or radiological investigation: in pars 91B and 91C that she was not clinically managed for spondylolisthesis as a result of which her condition deteriorated and she did not seek or receive appropriate medical review and advice and continued to engage in repetitive lifting in her employment; in par 91D that she did not receive appropriate advice from Dr Stening; in par 91E that there was a delay in diagnosis and treatment from at least 20 June 2012 (when she was seen by Dr Stening) to June 2013, during which time the "L5-S1 vertebrae slipped and nerves, ligaments and discs were damaged" and in par 91F that, because she was not appropriately clinically managed, she suffered loss and damage. The overall consequence of Dr Fraser's asserted negligence, as pleaded, was that the appellant suffered progressive damage to her spine that could have been avoided if her condition had been properly diagnosed and treated on and from 24 May 2012, and that she came to surgery in June 2013 that "more likely than not" could have been avoided and which, in turn (and without negligence on the part of the surgeon, Dr Cree), caused ongoing pain symptoms (see pars 103A-109A). Paragraphs 91A-91F and 103A-109A appear to be later insertions into the final version of the statement of claim.
[9]
(ii) The trial
The trial was fixed to commence on 15 June 2020. Shortly before that date Dr Fraser filed an amended defence in which he admitted breach of duty of care constituted by his failure to identify and report on the presence of the right sided pars defect (spondololysis) and his failure to recommend further radiological imaging to investigate that condition. Inherent in that admission was a further admission that the X-ray did disclose the presence of the pars defect/spondylolysis. The admission did not expressly (or by implication) extend to an admission that the X-ray disclosed the presence of spondylolisthesis. In the amended defence filed on 1 July 2020, Dr Fraser denied the allegations in pars 91E, 91F, 103A and 109A of the statement of claim. He maintained his denial that his failure to report the pars defect was the cause of any harm to the appellant. He pleaded a defence pursuant to s 5I of the Civil Liability Act, asserting that the pain condition which the appellant suffered as a result of the surgery performed by Dr Cree was an inherent risk of that surgery, a risk which materialised and for which he did not incur liability in negligence because, irrespective of his breach of duty, the appellant would have required the surgery, with the same result.
The consequence of Dr Fraser's amended defence was that the issues in the trial, so far as he was concerned, narrowed. The issues to be litigated were reduced to:
1. whether his admitted breach of duty caused harm to the appellant;
2. whether the defence provided by s 5I of the Civil Liability Act was made out;
3. if it were found (a) that Dr Fraser's breach of duty was the cause of harm to the appellant, and (b) that the defence under s 5I failed, the quantum of damages to which the appellant would be entitled.
That the appellant's claim was that the 24 May 2021 X-ray disclosed spondylolisthesis was expressly confirmed at the outset of the trial when senior counsel opened the case to the primary judge. As recorded in the transcript, senior counsel said:
"This claim arises essentially out of a medical condition called spondylosis [sic] and also spondylolisthesis. … It is not an issue that this young woman suffered from spondylosis [sic] and spondylolisthesis as at the relevant dates, which was roughly May, June and following in 2012. …
It's an agreed opinion between the causation experts that in the relevant period, that is from 21 May 2012 when the plaintiff saw first defendant [Dr Fraser], right the way through thereafter and certainly through to her surgery in June 2013, the plaintiff was suffering from iliac apophysis and musculo-ligamentous strain secondary to her spondylolisthesis and, to that extent, the iliac apophysis is a hip condition which can arise from the growth plates in the hip and it is generally thought that that condition too will resolve with conservative treatment.
As to the expert causation reports, it should be noted, and you will hear evidence that the spondylolisthesis, that is the degree of slip is capable of measurement radiologically and the smallest grade with the least amount of slip is known as a grade 1, progressing to grade 2, 3 and 4 and grade 1 is either no or minimal slip and grade 2 is slightly greater …" (Italics added)
[10]
(iii) Causation
The principal question for determination was whether Dr Fraser's admitted breach of duty in failing to report on the existence of the "pars defect"/spondylolysis and on spondylolisthesis was the cause of harm to the appellant. That issue was to be resolved by the application of s 5D of the Civil Liability Act which is relevantly in the following terms:
"5D General principles
(1) A determination that negligence caused particular harm comprises the following elements -
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)."
By s 5E, in proceedings relating to liability for negligence, a plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
In final written submissions at trial the appellant identified the "harm" on which she relied as of two types:
"(a) injuries sustained from May 2012 or June 2012 such as disc damage, musculo-ligamentous strain, rounding of the sacrum and likely progression of slip by engaging in inappropriate work without proper conservative or non-operational clinical management and support;
(b) progression of her spondylolysis or grade 1 spondylolisthesis so as to crush her L5 nerve root and require her to undergo surgery. Or put alternatively, the inability to undertake conservative or non-operational clinical management so as to avoid surgery."
That is scarcely an accurate reflection of the case the appellant sought to make at trial. As I understand her case, the "harm" on which she relied was the ultimate outcome of the 2013 spinal surgery, that is, a chronic pain condition. That was also the understanding of the primary judge, and was confirmed in this Court as "essentially" the appellant's case. It is also consistent with the manner in which the case was opened. However, the appellant flirted with what was described as a "secondary position" (expressed as "disc damage, musculo-ligamentous strain, rounding of sacrum, the likely progression of slip" caused by the appellant's continued work in the child care centre). That "secondary position" is discussed below, in the context of the grounds of appeal.
To succeed in her case of negligence against Dr Fraser, it was necessary that the appellant establish, on the balance of probabilities, that Dr Fraser's failure to recognise and/or report on the existence of the pars defect was a necessary condition of the occurrence of the harm she suffered. Given that the appellant accepts that her current chronic pain condition was always a possible outcome of the 2013 surgery, it was necessary that she prove, on the balance of probabilities that, but for Dr Fraser's negligence, she would (not could) have avoided surgery and the adverse consequences of the surgery: see Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 at [36], [40]-[41] per French CJ, Kiefel J, as her Honour then was, and Keane J. Here, as is often the case, the determination of "factual causation" involves a hypothetical comparison between what actually happened and what would have happened if Dr Fraser had recognised the pars defect in the X-ray and reported to Dr Mutasim and Dr Stening accordingly: see Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 at [113] per Hayne J (in dissent as to the outcome but uncontroversial as to this proposition); Tabet v Gett (2020) 240 CLR 537; [2010] HCA 12 (Tabet) at [140] per Kiefel J. It was not in issue that, had the existence of the pars defect been brought to Dr Stening's attention, he would have adopted a different course of treatment for the appellant. It does not follow, however, that that alternative treatment would have obviated the need for the 2013 surgery. In part, whether it would have done so depended significantly on the condition of the appellant's spine at the date of Dr Fraser's breach of duty. But it also depended on what may be hypothesized as the prospects that the alternative treatment regime that Dr Stening would, absent Dr Fraser's breach, have implemented would have averted the need for surgery. If the appellant already had a disc slippage - spondylolisthesis - it may be taken (and it is implicit, if not explicit, in the medical evidence) that that would significantly diminish the prospects of a favourable outcome from conservative treatment, and make it more likely that the appellant would have come to surgery in any event. On the other hand, if the undoubted pars defect had not at the date of breach progressed to slippage, the appellant's chances of avoiding surgery would have been significantly enhanced.
[11]
The primary judgment
The primary judge was obliged, of course, to address the case against Dr Stening, which is no longer in issue. Much of the lengthy primary judgment is devoted to that task, in respect of which an important factual dispute concerning what history the appellant had given to Dr Stening had to be resolved. No such factual issue arose in relation to Dr Fraser.
The primary judge did not make any express finding as to the condition of the appellant's spine as at 24 May 2012. His Honour did not resolve the factual issue belatedly raised on the appellant's behalf.
The critical findings on causation are to be found in three paragraphs of the judgment:
"223 In my opinion, if Dr Fraser had correctly diagnosed [the appellant's] 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. [The appellant] 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 the pre-surgical difficulties. [italics added]
226 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 [the appellant] 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 [the appellant's] "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 [the appellant's] gradually increasing symptoms "was a loss of disc height due to degeneration", otherwise described as "the natural history of the condition." [italics in original]
230 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 [the appellant's] 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 [the appellant] would have done if Dr Fraser had not been negligent, I am satisfied that [the appellant] would have followed advice if it had been given to her in accordance with the experts' opinions of what conservative management would have involved." (italics added)
[12]
The grounds of appeal
Four of the five pleaded grounds of appeal are directed to the primary judge's approach to the issue of causation. Grounds 1, 2 and 3 assert, respectively, that the primary judge failed properly or adequately to address the appellant's submissions on causation; failed to provide adequate reasons on the issue of causation; and failed to make relevant findings on the evidence and submissions relevant to the issue of causation. Ground 4 asserts error, in a number of respects, in the factual "analysis and reasoning" underpinning the causation conclusion. For example, error was asserted in the failure of the primary judge to "assess causation as at May 2012" (Ground 4(c)); in the failure to find that "damage and injury were being sustained from May 2012 by reason of the appellant's inappropriate work tasks" (Ground 4(a)); and in what was said (erroneously) to be a finding that "no damage or injury was sustained by the breach of duty" (Ground 4(b)).
Ground 5 raised a different issue; it asserted that:
"The Trial Judge misdirected himself in his analysis of the evidence of Dr Drnda and Prof Sekel in finding that their evidence amounted to a loss of a chance".
Grounds 1-3 as formulated are noticeably opaque as to the precise alleged failings of the primary judge. In written submissions it was made clear that the primary complaint was that his Honour did not address the belated reversal of what had previously been the appellant's position, that, as at 24 May 2012, she suffered from spondylolisthesis, did not make a finding that that condition was not present, and was in error in proceeding on the basis that the appellant had spondylolisthesis.
The submissions with respect to Grounds 1-3 fell into two parts. The first attacked the (implicit) finding that spondylolisthesis was present; the second attacked the conclusion that the appellant's condition was such that she would, even if her condition had been recognised and treated appropriately, have proceeded to surgery. The second part of the submission was largely (but not entirely) predicated on the proposition that spondylolisthesis was not present, and what would have happened had the appellant had only spondylolysis.
To assess the merits of the first part of the argument it is necessary to return to the submissions made to the primary judge. Despite the hint contained in the last sentence of par 101 of the written submissions, it was never clearly spelled out that the appellant sought to draw a distinction between the potential consequences of a diagnosis of spondylolysis and a diagnosis of spondylolisthesis.
[13]
Spondylolysis or Spondylolisthesis?
The appellant's argument that spondylolisthesis was not present as at 24 May 2012 depended entirely on the response of the two radiologists, Professor Earwacker and Dr Lees on 1 May 2018, (referred to above) that no "inverted Napoleon hat" sign is discernible in the 24 May 2012 X-ray. In addition, Dr Lees said, in a report dated 17 October 2015:
"There is a pars interarticularis defect at L5 on the right but not the left. This is a spondylolysis. It is only identifiable in the lateral view of the hip. The defect is narrow and therefore there is no sign of a slip forward of the fifth lumbar vertebra on the first sacral segments. There is therefore no sign of a spondylolisthesis … There is no 'Inverted Napoleon Hat' sign. There could not be as there is no evidence of any forward slip of L5 upon S1. It is not possible for the sign to be present as the left pars interarticularis is intact. …"
Dr Earwacker's opinion was not so unequivocal. In a report dated 3 November 2014 he said:
"In the examination of 24-05-2012 the neural arch and the right sided apophyseal joint are clearly abnormal. The degree of forward translation of L5 in relation to S1 cannot be evaluated however the orientation of the L5 vertebral body in relation to the pelvis suggests that it is not of a severe grade. …"
This appears to be an acknowledgment of at least the possibility of some degree of slippage.
It is worth observing that both of these reports, as well as the report of 1 May 2018, were directed to whether Dr Fraser had been negligent in failing to observe radiological signs of spondylolysis or spondylolisthesis. The radiologists were not asked to express views about the appellant's condition. The difference is not insignificant.
At this point it is convenient to note a logical fallacy in the appellant's argument. In [100] of the written submissions at first instance, it was stated, somewhat baldly, that, as there was (on the evidence of the radiologists) no "inverted Napoleon hat sign" on the 24 May 2012 X-ray:
"… ipso facto there could not be spondylolisthesis, given it is accepted that sign is required to diagnose the presence of slip".
The substance of that submission was repeated in both written and oral submissions in this Court.
While the evidence did establish that the presence, on X-ray, of an "inverted Napoleon hat" sign is indicative of spondylolisthesis, no evidence that the converse is true was identified - that is, that the absence of an "inverted Napoleon hat" sign establishes the absence of spondylolisthesis. In response to a specific question about indications for surgery, Dr Drnda considered that clinical observations are more important than radiological findings . And, as will be seen below, even where an "inverted Napoleon hat" sign is present on an X-ray, it may be subtle and barely discernible.
[14]
Ground 5
It is worth repeating the terms in which ground 5 is pleaded:
"The Trial Judge misdirected himself in his analysis of the evidence of Dr Drnda and Prof Sekel in finding their evidence amounted to a loss of a chance."
The primary judge made no such finding.
The concept of the award of damages based on a "loss of a chance" is most commonly associated with the decision of the High Court in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 (Sellars), with respect to whether, for the purposes of s 82(1) of the Trade Practices Act 1974 (Cth), loss of an opportunity to obtain a commercial advantage or benefit amounts to recoverable "loss or damage".
It is conclusively established that, in a claim for damages for personal injury caused by medical negligence, proof of a lost opportunity for a better outcome of treatment is insufficient. Damage (injury) must be established on the balance of probabilities. The concept of loss of a chance is inapplicable in such a claim: Tabet at [46]-[47] per Gummow ACJ; at [111] per Kiefel J; at [66]-[67] per Hayne and Bell JJ.
The premise underlying Ground 5 is that, notwithstanding that he referred to and quoted from Tabet, the primary judge nevertheless proceeded on the basis that the appellant's claim was for "loss of a chance". The proposition is untenable. Had the primary judge proceeded on that basis, error would undoubtedly have been established. But the primary judge did not commit that fundamental error.
Thirteen paragraphs of written submissions appear under the heading "Loss of a Chance (Ground 5)". None explicitly asserts that the primary judge did proceed on the basis that the appellant's claim was for loss of a chance for a better outcome from the treatment she would have received from Dr Stening absent Dr Fraser's negligence. The submissions renewed the attack on the acceptance by the primary judge that the appellant suffered from spondylolisthesis (pars 78, 79, 87). That issue has been disposed of above. The submissions also attacked the reasoning on the issue of causation (pars 87, 89); restated, erroneously and irrelevantly (par 83) that the primary judge had found that Dr Fraser's breach had caused no loss or damage (as noted above, what the primary judge found in the paragraph cited was that no immediate damage was caused by the breach); and asserted:
"The Trial Judge erred in considering this matter from of a [sic] Tabet v Gett … perspective rather than from a Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20." (par 86)
[15]
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Decision last updated: 07 October 2022
Williams v Fraser [2022] NSWCA 200 | Case summary | Zoe
The proceedings against Dr Fraser and Dr Stening were heard by Harrison J ("the primary judge") over 11 days between June and September 2020. On 20 May 2021 his Honour gave judgment in favour of both defendants, with costs, giving reasons: Williams v Fraser [2021] NSWSC 416 ("the primary judgment"). Notwithstanding that, his Honour assessed, on a contingent basis, the damages he would, had the appellant been successful, have awarded at $5,284,912.79.
The appellant appeals against the order for judgment in favour of Dr Fraser. She has not appealed against the order for judgment in favour of Dr Stening. Neither the appellant nor Dr Fraser has raised any challenge to the contingent quantification of damages, by reason of which an appeal lies as of right: Supreme Court Act 1970 (NSW) (Supreme Court Act), s 101(2)(r). By s 75A(5) of the Supreme Court Act the appeal is by way of rehearing. By subss (6)(b) and (10) of s 75A this Court has the powers and duties of the Supreme Court, including the powers and duties to draw inferences and make findings of fact, and to give any judgment or make any order which ought to have been given or which the nature of the case requires. Those powers have more than usual significance in this case.
Subject to some constraints to which I will come, the duty of this Court is to decide the issues for itself, recognising the advantage enjoyed by the primary judge in observing the witnesses as they gave their evidence: Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 at [19] per Gibbs ACJ, as his Honour then was, Jacobs and Murphy JJ. The Court is to conduct a "real review" of the trial and the reasons given by the primary judge: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [25] per Gleeson CJ, Gummow and Kirby JJ. Restraint must be exercised in departing from findings of fact made by trial judges which might be affected by their impressions about the credibility of witnesses (Fox at [26] per Gleeson CJ, Gummow and Kirby JJ), and that restraint extends to findings of secondary facts which are based on a combination of impressions of witnesses and other inferences drawn from primary facts: Lee v Lee; HSU v RACQ Insurance Limited; Lee v RACQ Insurance Limited (2019) 266 CLR 129; [2019] HCA 28 at [55] per Bell, Gageler, Nettle and Edelman JJ.
The preferred treatment for diagnosed spondylolisthesis is conservative, especially in children and adolescents. Conservative treatment involves bracing, activity restriction, physiotherapy and pain control.
Spondylolysis can be aggravated by activity that involves repeated extension or flexion of the spine, such as lifting heavy weights. Such activity can place pressure on the intervertebral discs, causing desiccation and degeneration.
At the consultation on 20 June 2012 Dr Stening examined the X-rays, which the appellant had brought with her. He did not identify the pars defect. He relied on the report of Dr Fraser to the effect that the X-rays revealed no abnormalities. Dr Stening diagnosed a recurrence of the 2009 apophysitis. He reported to Dr Mutasim:
"I have 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."
Dr Stening ordered cortisone treatment and rest and gave the appellant a medical certificate restricting her from "lifting while squatting" for 3 months. He advised against contact sports and that the symptoms would resolve as the growth plates developed. For a period of about three months the appellant was relieved of some of the heavier duties at the child care centre.
Had Dr Fraser reported that the X-ray revealed spondylolisthesis, Dr Stening's diagnosis and treatment would have been different. He would have taken steps to investigate and clarify the exact nature of the appellant's condition, and advised the appellant to avoid heavy lifting or contact sports, that she needed to attend for review at 3 monthly intervals, to have serial X-rays at 3 monthly intervals, to monitor her condition for symptoms and return for review if she developed any of a number of identified symptoms, and that she needed to consult a paediatric spinal sub-specialist.
The appellant continued to experience pain and returned to Dr Stening in December 2012, suffering, she said, from back and hip pain. Dr Stening did not record any complaint of back pain and did not order any spinal examination because, he said, he was not given any history of back pain. Whether that was so was a contested issue in the trial and was determined against the appellant. There being no appeal against the judgment in favour of Dr Stening, it is of no further importance. Dr Stening again advised conservative treatment and referred the appellant to Mr Seabury for physiotherapy. Mr Seabury recorded a history of worsening bilateral hip pain, for more than a year, and "lumbar discomfort". He prescribed exercises for the appellant to do at home, which she did. Her problems became worse and she was struggling with her work at the child care centre. In May 2013 the appellant consulted an osteopath, Dr Thomas Samels, who recorded a history of low back and hip pain. In May 2013 the appellant began to experience urinary incontinence. On 5 June 2013 Dr Samels ordered a lumbar spine X-ray which disclosed "approximately 1.7 cm of anterior slip of L5 on S1 due to bilateral pars defects making this a Grade 2 spondylolisthesis".
The appellant was then referred to another orthopaedic surgeon, Associate Professor William Walter. Dr Walter noted that X-rays of the appellant's lumbar spine showed 15% spondylolisthesis at L5 on S1. He referred the appellant to Dr Cree, also an orthopaedic surgeon, for urgent review. The appellant was admitted to the Mater Hospital where, after an MRI, Dr Cree performed, as a matter of urgency, spinal decompression and fusion. Subsequently the appellant developed a secondary chronic pain syndrome (described by Dr Fraser as "failed back surgery syndrome"), a condition from which the appellant continues to suffer. It was accepted that, although the operation had been competently performed by Dr Cree, the appellant's continuing pain syndrome was a direct consequence of the surgery.
An alternative case, pleaded at pars 107-108 of the statement of claim, that, but for Dr Fraser's negligence (and Dr Stening's asserted negligence) the appellant would have undergone a different form of surgery at an earlier time, does not appear to have been pursued at trial, and, in any event, does not arise on appeal.
Dr Fraser filed a defence. He denied the negligence alleged and the particulars subscribed to par 91 of the statement of claim. He denied that his conduct was the cause of damage or harm to the appellant.
It is important to spell out with some precision the manner in which the appellant's case was pleaded and presented. Her case on causation was that, had Dr Fraser identified either spondylolysis or spondylolisthesis (both of which were present), the appellant would have been treated conservatively, without surgery; she would have been advised to avoid the kind of work she was doing at the child care centre and some of the sporting activities in which she engaged; she would have acted on that advice, with the effect of preventing further slippage or displacement of the L5 disc (the underlying premise being that some slippage - spondylolisthesis - had already occurred as at 24 May 2012); she would have maintained that regime until she achieved "skeletal maturity" when the risk of further slippage diminished, and she would thus have avoided the 2013 surgery; and that her continued work at the childcare centre (which she would have surrendered if properly advised of her condition) aggravated the already present spondylolysis and/or spondylolisthesis.
In sum, put as simply and succinctly as possible, the appellant's case, as pleaded and presented, was:
she had a congenital condition of the spine (pars defect/spondylolysis);
at some stage the L5 disc was displaced, slipping on the S1 disc (slippage/spondylolisthesis);
both the spondylolysis and spondylolisthesis were identifiable on the 24 May 2012 X-ray;
Dr Fraser negligently failed to identify either condition when he reported on the 24 May 2012 X-ray;
had Dr Fraser correctly interpreted the 24 May 2012 X-ray he would have reported to Dr Mutasim and Dr Stening that the appellant suffered from both spondylolysis and spondylolisthesis;
had Dr Stening been made aware of the appellant's condition he would have treated her differently, by advising her to cease her employment at the child care centre and avoid activities that involved pressure on her spine;
continuing the work in the childcare centre placed additional strain on the appellant's spine and caused aggravation of the spondylolisthesis from which she was already suffering;
had the appellant received appropriate medical advice she would have acted on it (including giving up the child care centre employment), avoided progression of the slippage, and, accordingly, the need for the 2013 surgery;
the 2013 surgery was the precipitating cause of her ultimate chronic pain condition.
Until the last day, that was the basis on which the trial was conducted. The trial involved a very large array of medical experts representing a number of specialities. The specialities and experts were:
Radiology: Professor John Earwacker and Dr Richard Lees;
Orthopaedics: Associate Professor Ronald Sekel, Dr Richard Walker, Dr John Tuffley;
Neurology: Dr Ian Sutton, Dr John O'Neil, Professor Noel Dan, Dr Armin Drnda, Dr Michael Biggs;
Psychiatry: Dr Robert Fisher, Dr Angelo Virgona;
Pain/Rehabilitation: Associate Professor Tillman Woolf Boesel, Dr Seamus Dalton, Dr Susan Rutkowski.
Each of the specialists was given extensive instructions and provided with assumptions on the basis of which he or she was asked to express opinions with respect to specific questions. Each of the specialists provided at least one individual report. Professor Sekel and Dr Walker met in conclave on 20 February 2018 and provided a joint report, dated 9 March 2018; Professor Earwacker and Dr Lees met in conclave on 30 April 2018 and provided a joint report dated 1 May 2018; and Professors Sekel and Dan and Drs Rutkowski, Sutton and O'Neil met in conclave on 20 February 2018 (the first causation conclave) and provided a joint report dated 20 March 2018 specifically directed to causation issues (the first joint causation report). These same five specialists met again in conclave on 21 May 2020 ("the second causation conclave"), joined by Drs Drnda and Tuffley, to produce a further report dated 26 May 2020 directed to causation (the record joint causation report).
That the reports were provided jointly following the specialists' meeting in conclave should not be taken as an indication of consensus. In many cases, practitioners of the same speciality expressed divergent opinions in respect of specific issues.
Concurrent oral evidence was given by Professor Sekel and Dr Walker on 24 June 2020 (the sixth day of the trial), by Professor Earwacker and Dr Lees on 25 June 2020, and by Professors Sekel and Dan, and Drs Drnda, Tuffley, Rutkowski, Sutton, Biggs and O'Neil on 26 June 2020. It will be necessary to return to the detail of the evidence and opinions that emerged from these exercises. For the moment it is sufficient to note one answer given by the radiologists (Professor Earwacker and Dr Lees) in their joint report (1 May 2018). In response to a specific question whether Dr Fraser ought to have identified the presence of an "inverted Napoleon hat sign" (to repeat, a radiological sign of spondylolisthesis) Professor Earwacker and Dr Lees jointly answered:
"NO (ie agreed not required to have been identified because it is not present)"
A very large volume of medical literature was tendered in evidence. On occasions the medical experts referred to the literature in support of the views they expressed. On the whole, however, it was left to the primary judge to interpret the literature as best he could.
During the course of final submissions (2 July 2020) the appellant's case took a radically different turn. Far from contending that, as at 24 May 2012, she had spondylolisthesis, it was now contended on her behalf that, as at that date, no "inverted Napoleon hat" sign existed and that therefore the appellant did not as at that date suffer from that condition. In written submissions dated 18 September 2020 the following proposition was put:
"100 The radiologists in their respective medico-legal report and in the [joint radiologists' report] unequivocally stated that there was no 'inverted Napoleon hat' sign and ipso facto there could not be spondylolisthesis, given it is accepted that sign is required to diagnose the presence of a slip.
101 As such, the Court is entitled to find the Plaintiff had not suffered slip of L5 over S1 as at 24 May 2012 … as such, the Plaintiff was suffering spondylolysis (no slip) and was not suffering spondylolisthesis. As such, the Plaintiff had much better prognosis in the event conservative management was instituted in May, June or December 2012."
This change in the appellant's position was triggered by the answer given by Professor Earwacker and Dr Lees in their 1 May 2018 joint report to the question which I have set out above, although, as was acknowledged, the significance of the answer was not appreciated until the time came for preparation of final submissions in July 2020.
A hint at the forensic advantage sought to be achieved on behalf of the appellant by the change of position may be discerned in the last sentence of [101] of the written submissions, extracted above. Until 2 July 2020 the appellant's case on causation was that Dr Fraser's failure to identify either spondylolysis or spondylolisthesis (each of which was present) resulted in inadequate and inappropriate treatment being given to her, and her persistence in undertaking work and recreational activities that were unsuitable, something she would not have done if given appropriate advice. Inherent in that proposition was the assertion that, as at the date of Dr Fraser's breach of duty, the appellant in fact had spondylolisthesis - that is, that disc slippage had already commenced at that time. The presence or existence of spondylolisthesis at that time would significantly have diminished the prospects of conservative treatment being sufficiently effective to avoid the need for surgery in 2013. If there were no slippage as at May 2012, but only spondylolysis (which itself ought to have been recognised by Dr Fraser and reported to Dr Mutasim and Dr Stening as calling for investigation or treatment) the slip must have occurred after Dr Fraser's breach of duty. Had effective measures been taken before the slippage commenced, the prospects of successful treatment would have been better, and the need for surgery would have been averted. In his evidentiary statement and in his oral evidence Dr Stening confirmed that, had he been advised by Dr Fraser that the 24 May 2012 X-ray showed either condition, the advice and treatment he would have given to the appellant would have been different.
Pre-existing spondylolisthesis would make the appellant's case on causation more difficult because it would diminish the prospect that, with conservative treatment, she might have averted surgery. If the condition suffered by the appellant at the time of the X-ray was limited to spondylolysis, her prospects of a favourable result from conservative treatment would be significantly enhanced. Recognition of the forensic advantage to be achieved by discarding reliance on the existence of spondylolisthesis as at 24 May 2012 accounts for the last-minute change in the appellant's position.
No objection was taken on behalf of Dr Fraser to the radical departure from the appellant's pleaded case. Written submissions in response to those made by the appellant were provided, including on the issue of the correct diagnosis. On behalf of Dr Fraser it was expressly accepted that no resistance could be offered to the appellant's raising the issue on appeal.
Whether the appellant had spondylolisthesis as at 24 May 2012 was therefore an important, if not critical, fact in the hypothetical analysis. This was the issue raised by the appellant's eleventh-hour change of direction.
It may be observed that in [223] the primary judge does not specify what the "anatomical spinal problem or condition", "pre-operational pain syndrome" or "serious congenital anatomical spinal condition" was or were, that is, spondylolysis or spondylolisthesis. The reference to "stem or stall the natural progression of …." strongly suggests that the primary judge was (unsurprisingly) proceeding on the premise that spondylolisthesis was present in the appellant's spine as at 12 May 2012. In my opinion, it is reasonably clear that the primary judge did proceed on that basis. Essentially, on the premise that as at 24 May 2012 slippage had already occurred and the appellant had spondylolisthesis, the primary judge was not satisfied that the appellant had established a causal link between Dr Fraser's failure to report the existence of the spondylolisthesis and the need for the 2013 surgery and consequent chronic pain syndrome - that is, that Dr Fraser's failure was a necessary condition of the appellant's chronic pain syndrome. That was because his Honour accepted that, regardless of Dr Fraser's negligence, the appellant's condition was such that she would have required the surgery.
Although the primary judge acknowledged and discussed Dr Fraser's defence under s 5I of the Civil Liability Act, he did not state any express conclusion with verdict to it. Rather, he considered the issues thus raised concurrently with his consideration of causation under s 5D.
Had that distinction been clearly drawn, it would have been necessary for the primary judge to determine whether, as at 24 May 2012, the appellant suffered from spondylolisthesis. If he found that she did, then the balance of the exercise was that which he did in fact undertake, on the assumption that that condition was then present.
If, on the other hand, the primary judge accepted the appellant's contention that the evidence did not establish that at that time she suffered from spondylolisthesis, the exercise involved would have been different and would have required an assessment of a favourable outcome of conservative treatment where the condition was spondylolysis.
The primary judge did not undertake that exercise; he was not explicitly asked to do so. Nor were the medical experts asked to undertake that analysis. As is clear from what has been set out above, all experts expressed their opinions on the premise that the appellant's condition as at 24 May 2012 included spondylolisthesis. No medical expert was asked to express an opinion on whether, if the appellant had spondylolysis but not spondylolisthesis, the need for surgery could have been avoided.
Dr Fraser did not contest the proposition that the primary judge did not directly determine whether spondylolisthesis was present in the appellant's spine as at 24 May 2012. His response to grounds 1 to 3 of the appeal was that, in the circumstances in which the issue had, belatedly, been raised, it would be unfair to be critical of the primary judge's failure to deal with it. In my opinion that is particularly so when it is borne in mind that, although the proper classification of the appellant's condition was raised, no, or no cogent, submissions were made as to what would follow from a finding that spondylolisthesis was not present as at 24 May 2012. That question was raised, at best, obliquely. A good deal of the submissions presented at trial went to the question of, if the appellant did have spondylolisthesis, what grade it was.
The focus of the submissions of both parties in this Court was on what factual determination the primary judge ought, had he turned his mind to the question of the correct diagnosis, have made. As the primary judge did not undertake that exercise, it is necessary that this Court, exercising the powers conferred by s 75A(6)(b) and (10) of the Supreme Court Act, determine what the evidence established as to the condition of the appellant's spine, and, if it were not spondylolisthesis, whether appropriate treatment would have obviated the need for surgery. This exercise is not constrained by the need to make allowances for the advantage enjoyed by the primary judge in having the opportunity to observe and make an assessment of the credibility or reliability of witnesses. The issue is purely based on analysis of the medical evidence, documentary and oral. There is no suggestion of any credibility or reliability issues affecting any of the medical witnesses. This Court is in a good a position as the primary judge to make the determination.
And since the question was never put to the experts in the same way as it has been put to this Court, the determination must be made by inference from the opinions expressed on other matters.
The radiologists' evidence that Dr Fraser was not negligent in failing to observe and report on the presence of an "inverted Napoleon hat" sign on the 24 May 2012 X-ray because no such sign was present does not establish that the appellant did not have spondylolisthesis.
It is necessary then to examine the other medical evidence with some care, bearing in mind that no specialist was asked to express an opinion on whether the appellant did in fact have spondylolisthesis. Generally speaking, and unsurprisingly given the case sought to be made on behalf of the appellant until the end of the trial, the specialists proceeded on the assumption that spondylolisthesis was present.
Apart from the radiological evidence that spurred the appellant's change of position, the appellant relied heavily on the evidence of Professor Sekel and Dr Drnda, describing them as "our best witness[es]".
Professor Sekel's evidence bears close scrutiny. His first report is dated 10 May 2015 and was prepared at the request of the appellant's solicitors. The letter of instruction is not in the materials provided to this Court but it is apparent that Professor Sekel was retained for the purpose of advising on the potential liability of Dr Stening. Professor Sekel uncontroversially defined spondylolisthesis as:
"Forward slipping of one vertebra on another".
In that context Professor Sekel said:
"After reviewing the X-rays … of 24.5.12 and … 24.5.13, [the appellant] has the congenital form of spondylolisthesis of Grade II, this only being demonstrated on the May 2013 lateral view, the type and degree of spondylolisthesis only being demonstrated on the x-rays of May 2013. The inverted Napoleon hat sign for spondylolisthesis slip was an extremely subtle one, but was present on both the X-rays of 24th May, 2012 and 24th May, 2013. …
Therefore [the appellant] has a Grade II congenital type of spondylolisthesis from birth." (italics added)
A little later in the same report, in answer to a question about the most likely cause of the appellant's symptoms, Professor Sekel replied:
"It is more likely than not that spondylolisthetic slipage [sic] had not occurred in June 2012 as this would have been obvious during the Ely testing [a test he recorded Dr Stening had administered]." (italics added)
Professor Sekel then said:
"Spondylolisthesis by definition is forward slipping of one vertebra on another, and in June 2012 there was no clinical evidence that spondylolisthetic slippage had started to occur although definitive radiology was not performed to confirm or exclude slipping". (italics added)
Having regard to the definition of spondylolisthesis given by Professor Sekel, it is difficult to reconcile his statement that the appellant had "Grade II congenital type of spondylolisthesis from birth" with his subsequent statement that it was more likely than not that spondylolisthetic slippage had not occurred in June 2012. The later statement that there was no clinical evidence that spondylolisthesic slippage had started to occur in June 2012 may not be as contradictory as it first appears. I take it to be intended to distinguish between "clinical" evidence (that is evidence from observation, history, and the like) and radiological investigation.
In a second report (1 June 2015), having reviewed the 2012 and 2013 X-rays, Professor Sekel adhered to his view that the appellant "at all times had late Grade I or early Grade II spondylolisthesic change". He considered that the vertebral body shapes of L5 and S1 were typical of a congenital form of spondylolisthesis.
Professor Sekel participated in the first causation conclave on 20 February 2018 and joined in a report dated 20 March 2018. The conclave was expressly asked if it was likely that, in June 2012 and December 2012, the appellant was suffering from an L5/S1 spondylolisthesis, and, if so, what grade it was. All participants in the conclave agreed:
"3.1 It is likely the [appellant] was suffering from an L5/S1 spondylolisthesis in June 2012 - which was either grade I or II.
3.2 The basis for this conclusion is on the findings of the x-rays of 24 May 2012 and the further radiology conducted in June 2013, including the x-ray reported on 11 June 2013.
3.3 The experts agree it is likely the plaintiff was suffering from an L5/S1 spondylolisthesis in December 2012 - which was either grade I or II. This is for the same reasons referred to above and also because there was no real change in clinical symptoms during that time."
The report then records Professor Sekel as adding:
"3.4 Dr Sekel is further of the view that such a conclusion is also supported by the subtle 'inverted Napoleon hat' sign on the x-ray performed on 24 May 2012.
3.5 That is, diagnoses of spondylosis [sic] or a Grade 0 Spondylolisthesis (before slipping has occurred) is made on radiological imaging by the congenital shape of the spine and/or the 'Scotty Dog collar' sign.
3.6 As at June 2012 the [appellant's] Spondylolisthesis was greater than Grade 0 because of the presence, of the 'inverted Napoleon hat' sign (ie in addition to the 'Scotty Dog Collar' sign)."
At trial Professor Sekel gave concurrent evidence with Professor Dan and Drs Drnda, Tuffley, Rutkowski, Sutton, Biggs and O'Neill. In answer to a question about whether the implementation of appropriate conservative measures might have averted the need for surgery (an issue to be considered below), he said (as recorded in the transcript):
"These people do slip. The development of dysplastic types do slip, and they can go from - and you can watch them long enough, they will go from grade 1 or 2 and progress, and we don't know when she became a grade 3. We don't even know how deep a grade she went to. We don't know - but that curved verbal [sic - vertebral] body of S1 is long standing, so the slip's been coming for a long while, or its being slipping backwards and forwards for a long while, and it may not be incorrect that she was a grade 3 earlier, but we just don't know."
In a joint report of orthopaedic specialists, Professor Sekel and Dr Walker agreed that the "inverted Napoleon hat' sign could be seen on the 24 May 2012 X-ray, although it was very subtle and might not be discerned unless specific attention was drawn to it. They also agreed that, as at June 2012, the appellant was suffering from spondylolisthesis.
Dr Drnda is a neurosurgeon who was also retained by the appellant's solicitors to advise with respect to Dr Stening's potential liability. Dr Drnda was asked to assume (contrary to the fact) that Dr Fraser's report had identified the presence of right-sided pars defect, and for his opinion about what a reasonable practitioner in Dr Stening's position would have done, inter alia, by way of diagnosis and what Dr Stening himself ought to have identified on viewing the 24 May 2012 X-ray film. In a report dated 7 November 2018 Dr Drnda replied:
"Assuming that Dr Fraser's report identified the presence of right-sided pars defect, a reasonable practitioner in Dr Stening's position would have taken a focused history of the low back pain, spread, duration and nature of the pain. He would have assessed the patient with local examination, examination of the lower limbs and arrived at a diagnosis of spondylolisthesis and would have initiated conservative management … Dr Stening would not then have had a problem to identify the pars defect and spondylolisthesis." (italics added)
Professor Dan was retained by Dr Fraser's solicitors. In answer to a specific question he said that the 24 May 2012 X-ray showed "a defect in the arch of L5" but that he "struggle[d] to identify a pars defect". In answer to a question "when did [the appellant] develop spondylolisthesis" (that is, on the assumption that she had done so) he replied:
"There is no absolute answer to this question. On the basis of the available history, it is likely that some early displacement was present in 2012. The radiology which was available did not demonstrate any displacement as they were not the necessary views which would allow such an identification to be made. The reason I suspect that the spondylolisthetic displacement started to occur in 2012 or alternatively started to increase in 2012 is the retrospective report from the osteopath Dr T Samels in May 2013 who described a problem of lower back pain with discomfort going into the lower limbs which was reported to have started in 2012 and to have slowly progressed. He attributed the onset of symptoms to working in childcare, presumably because of the lifting and bending in such activities." (italics added)
Importantly, Professor Dan considered that the appellant's symptoms were not consistent with the effects of slippage in May or December 2012 but were present in May 2013 and therefore developed between December 2012 and May 2013.
As indicated above, a second conclave of 8 experts of varying specialities took place in May 2020 to consider the causation issue. The participants in the conclave were asked (on the basis of stated assumptions) to identify the medical conditions (including spondylolysis and spondylolisthesis) from which the appellant was suffering on 21 May 2012, 24 May 2012, 20 June 2012 and 3 December 2012. The agreed answer was that, at each of those dates, the appellant was suffering from:
"A combination of iliac apophysitis and musculo-ligamentus strain, secondary to her spondylolisthesis." (italics added)
The participants were unable to determine the grade of the spondylolisthesis.
On the basis of this evidence the conclusion that, as at 24 May 2012, the appellant already had the condition of spondylolisthesis is inevitable. Only Professor Dan is slightly more muted in his opinion but nevertheless "suspected" that displacement began to occur in 2012. There are internal irreconcilable inconsistencies in Professor Sekel's evidence. The conclusion is inevitable notwithstanding the unequivocal statement of the radiologists, Professor Earwacker and Dr Lees, that no "inverted Napoleon hat" sign was present on the 24 May 2012 X-rays. That view did not accord with the view of Professor Sekel or Dr Walker who nevertheless agreed that the sign was so subtle that it could only be interpreted with the benefit of hindsight. The flaw in the appellant's reasoning, as suggested above, is to convert an opinion that no "inverted Napoleon hat" sign could be discerned on the X-ray to a conclusion that there was, therefore, no spondylolisthesis. Neither Professor Earwacker nor Dr Lees said that the appellant did not have spondylolisthesis; they addressed themselves to the radiological signs in the context of considering breach of duty by Dr Fraser. Indeed, Dr Earwacker's report of 3 November 2014 strongly suggests that the appellant did, in May 2012, have spondylolisthesis, although of a relatively minor degree.
The primary judge has not been shown to have been in error in approaching the question of causation on the basis that, as at 24 May 2012, the appellant already had the condition of spondylolisthesis.
That does not have the necessary consequence that grounds 1 to 3 of the appeal should be rejected. Issues concerning the primary judge's approach to the question of causation remain. Before coming to those it is convenient to deal with some other aspects of the appeal. At [56] of the appellant's written submissions, in respect of Grounds 3, 4(a) and 4(b) the following submission was made:
"The Trial Judge erred in characterising the Appellant's causation case as being only that she could have avoided surgery and therefore would have avoided the pain condition. Having wrongly accepted this characterisation, the Trial Judge found surgery was inevitable even if targeted and focused conservative management had been instituted in or about May or June 2012. This characterisation of the Appellant's case was not correct."
It was then submitted that "a central plank" of the appellant's case was that she was vulnerable to injury, and that heavy lifting caused damage and inflammation to her spine. The submission continued:
"[59] It was always the Appellant's case the failure to report the defect caused Dr Stening to permit her to work in a job to which she was not suited which caused her harm."
The submission concluded:
"66. The Trial Judge failed to consider the Appellant's employment was causative mechanism of her injury and no proper advice was given by Dr Stening about this because he was not aware of the pars defect."
The submissions cited, as indicative of error, a paragraph, at the outset of the primary judgment, in which the primary judge said:
"[3] More particularly, [the appellant's] case is that if non operative management had been instituted, she would on the balance of probabilities never have proceeded to surgery and would accordingly never have been exposed to the risk of a severe, disabling and intractable neuropathic pain condition from which she now suffers as a consequence."
The characterisation of the appellant's case attributed in par 56 of the submissions to the primary judge and said to be not correct reflects precisely what was pleaded in pars 91B-91F and 103A - 109A of the statement of claim (referred to above at [25]), and recorded in senior counsel's opening, in which he said:
"This is important on the causation case, your Honour, because the plaintiff's case is that, had non operative management been instituted, then on the balance of probabilities, she would never have proceeded to surgery and she would never have been exposed to the risk of this pain condition which is a consequence of surgery and this pain condition is the thing which she has found so debilitating in terms of attending work, attending to household cleaning, chores and the activities of daily living that gives rise to another aspect of the claim …". (italics added)
It is also in accord with the final submissions made at trial, in which it was put:
"[60] The experts agreed that had the Plaintiff's pars defect (dysplastic or isthmic) been diagnosed on or before January 2013, then she would have been treated conservatively (non-operative management). …
[124] The Court should find that on or after 24 May 2012, 20 June 2012, or 3 December 2012, the Plaintiff would have been amenable to conservative treatment and more likely than not have avoided surgery. …".
The "conservative treatment" the appellant claimed (and it was common ground) that she should have had included advice to refrain from the lifting of children involved in her employment at the child care centre.
It may be taken that the propositions at pars 56 and 59 of the written submissions were intended to address the appellant's "secondary position" with respect to causation. That was, it will be remembered, that the appellant's continued work in the child care centre was the cause of disc and other damage. In support of that contention, reliance was placed on evidence given by Dr Stening in cross-examination to the effect that spondylolysis can be aggravated, and that damage of the kind identified can be caused, by inappropriate work practices and other inappropriate activity of the kind that the appellant ought to have been warned against. (Dr Stening was more circumspect in respect of whether such activities could cause an already present spondylolisthesis to progress, saying that he lacked the expertise to make that judgment.) Dr Stening's evidence in this respect was limited to an explanation in general terms of the potential of activities such as those involved in the appellant's employment to cause damage. It was not an expression of opinion that those activities had in fact caused damage to the appellant.
No evidence that the appellant's employment between May 2012 and June 2013 in fact aggravated her condition or caused disc or other damage was identified. Indeed, the evidence of the causation experts, discussed at some length below, tends to contradict that proposition. As was pointed out on behalf of Dr Fraser, for a significant period after the 20 June consultation with Dr Stening, the appellant's work duties were modified and she was relieved of some of the heaviest tasks.
The appellant's "secondary position" is not easy to follow. As explained during the course of argument on appeal, it was said:
"…it wasn't just the progression towards surgery, although that was the ultimate consequence. This woman was starting to suffer injury or damage, there was an identifiable detriment already brought about by disc desiccation, which was progressive and it was related, in my respectful submission, to her inappropriate work practices, which she was permitted to engage in … if damage is the gist of an action in negligence, we have established damage for the purpose of discharging causation. We have actually established damage."
This appears to be a submission that the appellant's cause of action was complete at some (unspecified) point after 24 May 2012, and before June 2013. And it may well be the case that she did have a complete cause of action at that time (although the evidence did not establish it). But that was not the cause of action on which the appellant sued. As the submission acknowledged, damage is the gist of a cause of action in negligence. And the cause of action on which the appellant sued was based upon damage constituted by her chronic pain syndrome.
It was incorrect to say, based on the evidence of Dr Stening, that the appellant had established causation of damage constituted by disc and other damage. All that Dr Stening's evidence established was that activities of the kind in which the appellant engaged in the child care centre could cause disc and other damage. It is also incorrect to say that the appellant pursued a separate case of damage constituted by disc and other damage, short of her principal case, that Dr Fraser's negligence was the cause of her subsequent spinal surgery and consequent chronic pain condition. Section 5D(1) of the Civil Liability Act requires a determination that negligence was a necessary condition of "particular harm". The "particular harm" on which the appellant sued was her chronic pain condition. True it is that the appellant asserted that disc damage attributable to inappropriate work and activity against which she should have been advised was a step on the way to the ultimate harm on which she sued. She did not, as I read the materials put before this Court, advance a separate cause of action based on harm constituted by disc damage. At least, this Court was not directed to any such proposition. Had the appellant (successfully) advanced such a case, the damages awarded would have been for a closed period ending in June 2013, and excluding the chronic pain condition, the 2013 surgery being a different, and non-negligent, cause of different harm.
The submission that the primary judge's characterisation of the appellant's case was "not correct" should be rejected. The appellant's "secondary position" was not a case made at trial.
It was asserted, in ground 4(b) of the appeal, that the primary judge erred in finding that no damage or injury was sustained by reason of Dr Fraser's breach of duty. The primary judge made no such finding. Ground 4(b) is a clear reference to [188] of the primary judgment, where the primary judge said:
"In the present case, Dr Fraser's failure to observe or report upon [the appellant's] pars defect on 24 May 2012 caused no immediate loss or damage to her". (italics in original)
That was correct. The remainder of [188] makes clear that his Honour appreciated that the appellant's case was that she subsequently accumulated damage by continuing to participate in unsuitable employment and activities, employment and activities that she should, and would, but for Dr Fraser's breach of duty, have been advised against.
Ground 4 nominates 7 asserted errors in the factfinding process. Not all were addressed in submissions. Those that were mentioned were:
"a. [The primary judge] failed to find damage and injury was being sustained from May 2012 by reason of the Appellant's inappropriate work tasks;
b. [The primary judge] found no damage or injury was sustained by the breach of duty;
f. [The primary judge] failed to address the submissions of the Appellant regarding the positive prognostic indicators applicable to the Appellant and the negative prognostic indicators of continuing to work in an inappropriate job;
g. [The primary judge] failed to address the argument that despite skeletal maturity, the Appellant's condition would likely stabilise with appropriate exercises and development of the tightening in muscles and ligaments."
Ground 4(b) has been addressed above. The other matters are subsumed in the analysis of causation below. Ground 4(a) appears to relate to the appellant's "secondary position" and has been addressed. The submissions made with respect to Grounds 4(f) and 4(g) attacked what was said to be an "implicit" finding that surgery for the appellant was inevitable (regardless of Dr Fraser's negligence). It was asserted that the finding was wrong because it erroneously assumed that the appellant had spondylolisthesis "where in fact there was no evidence to support that proposition". Enough has already been said to dispose of those grounds.
The question whether the appellant suffered from spondylolysis or spondylolisthesis was an unfortunate distraction from the real issue which was whether the alternative treatment that the appellant would have received had Dr Stening been advised of the existence of spondylolisthesis would have allowed her to avoid the 2013 surgery. The real issue for determination was, as it had always been since Dr Fraser's admission of breach of duty, whether that breach of duty was the cause of the appellant's present chronic pain condition. That would be so if the alternative treatment plan Dr Stening would have implemented would have averted the progression of the appellant's condition, to the point where the 2013 surgery was necessary.
The primary judge devoted a significant segment of the primary judgment to this question, under the heading:
"Could [the Appellant's] condition have been avoided by prior conservative management and was surgery always inevitable?"
His Honour referred in detail to the submissions advanced by the parties and the evidence relied on to support those submissions. That evidence supports the conclusion he reached in [223], set out in full above. He noted the competing cases, which were, put succinctly, the appellant's contention that appropriate treatment would have allowed her to avoid surgery, against Dr Fraser's contention that, regardless of his negligence, the appellant inevitably faced surgery.
It is necessary to return briefly to the report prepared following the first causation conclave. The participants were asked, on the assumption that the appellant had been diagnosed with an L5/S1 spondylolisthesis in June 2012 or December 2012, what treatment would have been given to her and how that treatment would have affected the progression of the spondylolisthesis. All agreed that, at both times, the appellant would have been managed by continuing "with expectant management", with regular reviews, and advised to return in the event of change in symptoms, with annual X-rays to monitor for "silent progressive slip", and warned not to engage in body contact or violent sports. Professors Sekel and Dan and Dr Rutkowski considered that additional cautionary information about possible symptoms, and the need to seek urgent medical advice if she experienced those symptoms, should have been given and that she should not attend certain "allied health care" practitioners. Interestingly, in these considered responses, no mention was made of avoiding the kind of employment activity in which the appellant was engaged.
All participants in the conclave agreed that the proposed treatment plan would not have affected the progression of the appellant's spondylolisthesis. They said:
"Between 2012 and 2013, alternate treatment would not have affected the outcome because the progression of the plaintiff's condition from Grade I or II towards Grade III did not occur until early 2013."
(It is difficult to see how this response answers the question asked.)
The participants were then asked (Question 9) whether, with that treatment, it was "likely" that the appellant would have come to surgery, and if so, what sort of surgery and when. All of the experts in the conclave (including Professor Sekel) agreed:
"9.1 … The answer is 'yes' - it is likely that the plaintiff would still have come to surgery in any event."
Professor Sekel added that, if the spondylolisthesis had remained at Grade 0, I or II the appellant "may well have never required surgical treatment", but that if it had progressed to Grade III or IV it was more likely than not that she would have required surgery of the type that she in fact underwent. Professor Dan agreed.
Dr O'Neill considered that it was not possible to be more specific, other than to state that the surgery was likely to have occurred in any event at some stage in the first 6 months of 2013. In oral evidence Dr O'Neill said that he did not think that, by 2012, there was anything that could be done conservatively that would have altered the natural progression of the disease over the following 12 months.
For his report of 7 November 2019 Dr Drnda was asked to express a view, on the balance of probabilities, assuming that appropriate medical advice had been given to, and heeded by, the appellant, what was the likely course of her condition. His response was:
"There would be a significant possibility that the [appellant] would stabilise at a certain level of back discomfort and avoid progression of her listhesis." (italics added)
Different views were expressed following the second causation conclave. A question posed to the experts was whether, had the appellant been provided with conservative management and treatment, including advice as to limiting physical activities, at various times (including June 2012) and had complied with that advice, what would have been the likely clinical course and, in particular, whether her spondylolisthesis would have stabilised or progressed and whether she would have come to some form of surgery notwithstanding the conservative management/treatment.
Professor Dan and Dr Tuffley considered that the appellant's spondylolisthesis would still have progressed because it is an inherent characteristic of the disorder. They added:
"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."
Dr Drnda and Professor Sekel agreed with one another, giving different reasons. Professor Sekel said:
"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 conditions. The lack of adequate conservative care precipitated this, not just the physiotherapy, because she was doing other things as well. Her exercise programme contributed. Physiotherapy was not the cause of her needing surgery, but it was a contributing factor." (italics added)
Dr Drnda said:
"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.
….
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." (italics added)
In oral evidence Dr Drnda said that the appellant, if appropriately managed:
"… would have a very good chance to remain in the same level and not deteriorate in February. Or … conservative management … would possibly lead or very likely, more likely than not, lead to stabilisation at the level that she was [prior to May 2012] and more likely than not she would avoid surgery." (italics added)
Professor Sekel agreed with the proposition put in cross-examination that the appellant was "congenitally" at significant risk of slip progression, and had only "a chance" of avoiding surgery.
The primary judge also noted evidence of "several idiosyncratic characteristics" of the appellant's anatomy identified by Dr Fraser that put her at a significantly increased risk of suffering slip progression in the spondylolisthesis with a consequential need for surgery to address it. These were the shape of her L5 vertebra and her sacrum, anatomical "deficiencies" in her facet joints, and that she was, as at 24 May 2012, skeletally mature (indicating that the slippage had already occurred).
Notwithstanding the opinion of Professor Sekel that, if appropriately treated in June or December 2012, the appellant would have "stabilised out", the overall medical evidence was, as the primary judge found, insufficient to establish, on the balance of probabilities, that that was the case. A "chance" or even "a good chance" is not a probability.
I would reject grounds 1-3 of the appeal.
No elaboration or explanation was offered for this bald assertion. In Tabet four members of the High Court emphasised that, in a claim in tort for damages, causation of damage is to be established on the balance of probabilities: see, for example, Gummow ACJ at [46]-[47] (citing Brennan J in Sellars), and Kiefel J at [111]. In a passage extracted by the primary judge, Hayne and Bell JJ said:
"66 For the purposes for 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.
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 to 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." (italics in original; internal citations omitted)
The primary judge was acutely aware of the distinction between proof of damage on the balance of probabilities, and proof that appropriate treatment by Dr Stening would have offered the appellant a chance of a better outcome (in this case, the avoidance of surgery and the consequent chronic pain condition). That is most clearly seen in [226] of the primary judgment, extracted above. His Honour expressly referred to the opinions of various of the specialists, and was unable to be satisfied that a conclusion that the appellant, if treated properly, would have had a chance of avoiding the surgery and thus the chronic pain syndrome equated to proof on the balance of probabilities that she would have done so. There was no error in that approach. The reference to Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 is, to say the least, obscure, and no attempt was made to explain it. The decision of the High Court in that case was concerned with the assessment of damages after liability (including causation) has been established. In the passages of the primary judgment said to disclose error the primary judge was addressing a liability issue - causation. Those passages had nothing to do with the assessment of damages.
Ground 5 should be rejected.
A notice of contention filed by Dr Fraser, asserting that the defence under s 51 of the Civil Liability Act should have been upheld, was not pursued.
In my opinion no ground of appeal has been made out and the appeal should be dismissed with costs. The orders I propose are:
1. Appeal dismissed.
2. Appellant to pay the respondent's costs.