Old v Miniter

1. [1]

   BASTEN JA: In May 2010 the appellant, Brian Lennard Old, sustained an injury in a motorcycle accident, involving a displaced fracture of the fibula in his right ankle. On 10 May 2010 the respondent, Dr Paul Miniter, an orthopaedic surgeon, undertook the reconstruction and stabilisation of the broken fibula.

2. [2]

   In September 2018 Mr Old commenced proceedings against Dr Miniter in the District Court seeking damages for negligence under the general law and for failure to exercise proper skill and care under s 60 of the Australian Consumer Law. Mr Old made no complaint about the initial surgery: his complaint was that after the ankle had fully healed, Dr Miniter was negligent in failing to remove cords by which the broken fibula and the plate inserted by the surgeon had been anchored to the tibia. He alleged that the failure to remove the cords led to an infection some seven years later in May 2017. The infection caused severe pain in the ankle and necessitated a further operation.

3. [3]

   The trial proceeded over nine days before Judge Levy SC, between October 2019 and 7 July 2020. On 31 July 2020 judgment was delivered dismissing the proceedings. [1] Although satisfied that Dr Miniter had failed to exercise reasonable skill and care, the judge was not satisfied that the breach of duty caused the subsequent osteomyelitis detected in May 2017. Accordingly, the proceedings were dismissed with costs.

4. [4]

   Against the possibility that he had been wrong in his finding on liability, the judge made a contingent assessment of damages in an amount of some $66,800.

5. [5]

   On 30 October 2020 Mr Old filed an appeal in this Court. There is no appeal as of right unless the amount in dispute is at least $100,000. [2] The appeal included a challenge to the contingent assessment of damages, Mr Old contending that, if he were to succeed on liability, the amount of the damages would exceed $100,000, thus avoiding the need for leave to appeal. As no objection was taken by the respondent to the competence of the appeal, the appellant’s submissions in that respect should be accepted. That is to say, it should be accepted that the amount in dispute exceeds the statutory floor of $100,000.

6. [6]

   Whilst defending the judge’s finding as to the failure to establish a causal connection between the breach of duty and the harm suffered, the respondent also challenged the judge’s finding of breach of duty and challenged the failure of the judge to uphold a defence of contributory negligence on the part of Mr Old in failing to obtain medical treatment when the symptoms of the osteomyelitis first arose in 2017. These issues were raised by a notice of contention: however, because logically the issue as to breach of duty should be determined before causation, it will be convenient to deal with that issue first.

7. [7]

   For reasons explained below, the respondent’s contention that he was not in breach of his duty of care in his treatment of the appellant should be accepted. It follows that the appeal must be dismissed.

8. [8]

   Before considering the factual circumstances said to give rise to a breach of duty, it is convenient to identify the relevant legal principles.

Legal principles

1. [9]

   In his statement of claim Mr Old alleged that, as the recipient of health care services provided by Dr Miniter, he was a “consumer” within “s 3(1)(a) Australian Consumer Law”. [3] Section 3(1) deals with acquisition of goods and s 3(3) deals with acquisition of services: accordingly the intended reference was to s 3(3)(a). Reliance was placed upon s 60 of the Australian Consumer Law which provides as follows:

2. [10]

   Mr Old also alleged that he had the benefit of a “common law duty of care” as Dr Miniter’s patient. [4] Mr Old complained that Dr Miniter had failed, in August 2010, to remove all of the “surgical hardware” inserted in May 2010 and that the failure was “in breach of s 60 ACL and/or negligent”. [5] Particulars were provided in the following terms:

3. [11]

   Section 60 of the Australian Consumer Law is commonly understood as imposing a guarantee in terms reflecting general law principles. However, apart from a complaint about the use of “and/or” in a pleading, there was no other reference to s 60 in the judgment. [6] The trial judge noted that the statement of claim had been pleaded without reference to relevant statutory provisions governing claims for negligent delivery of services, whilst the defence had relied on provisions in the Civil Liability Act 2002 (NSW). The judge noted that, the relevant conduct having occurred in the ACT, the Civil Liability Act was not engaged, but that the error had been accepted in the course of the proceedings and he accordingly applied relevant provisions of the Civil Law (Wrongs) Act 2002 (ACT).

4. [12]

   With respect to duty and breach of duty, the Civil Law (Wrongs) Act provides as follows:

5. [13]

   The relationship between common law principles applicable under s 60 of the Australian Consumer Law and the relevant provisions of the Civil Law (Wrongs) Act were not addressed, because the trial judge did not apply s 60. No complaint is made in this Court as to that omission and the s 60 cause of action need not be further addressed. Rather, the judge assessed the claim of negligence according to the provisions of the Civil Law (Wrongs) Act. [7] On the other hand, in discussing the elements of the claim the judge appeared to make a finding as to negligence under the common law, which he then subjected to the slightly more demanding rigour of the legislation. [8] It will be necessary to return to this analysis in considering the challenge to breach of duty.

6. [14]

   As noted above, the trial judge was not satisfied that the causal element had been made out. That analysis turned on the application of s 45 of the Civil Law (Wrongs) Act which provides:

Factual background

1. [15]

   The initial injury occurred on 1 May 2010 when the appellant was riding a motorcycle. The injury to the right ankle was described by the trial judge as “a displaced fracture of the right fibula and a high ankle sprain involving tearing of the associated medial ligament of that ankle, with disruption and diastasis of the right inferior tibio-fibular syndesmosis, an anatomical structure that comprised the stabilising ligaments of that ankle.” [9] On 6 May 2010 the appellant’s general practitioner referred him to Dr Miniter in Canberra for assessment and treatment. Dr Miniter arranged for him to be admitted to hospital and, on 10 May 2010, undertook an open reduction and internal fixation of the fractured fibula. The broken bone was held in place by a plate and screws and by a syndesmosis TightRope. The judge described the stabilising system as follows:

2. [16]

   A significant issue in the case turned on the use of the terms “lateral” and “medial”, the lateral being the outer side of the ankle and the medial being the inside, closest to the medial line of the body. Thus when the surgeon operated “laterally” he made an incision on the outer side of the ankle, in this case of the right leg. The surgery to insert the stabilising system only required incisions on the lateral side of the right ankle. On the medial side there was a small needle puncture mark, the needle being used to “capsize the EndoButton onto the medial aspect of the tibia”. [10]

3. [17]

   Mr Old was discharged from hospital following his operation on 10 May and had a follow-up consultation on 24 May 2010. [11] The plaster was removed and the wound inspected; significant swelling was noted. Dr Miniter saw Mr Old again on 1 June 2010. [12] Mr Old was readmitted to hospital for between three and four days. [13] The purpose of the hospitalisation was rest and elevation of the limb; he was not given antibiotics at that stage. [14] Dr Miniter was asked in evidence if he recalled examining the stitches and lateral aspect of the wound; he said that he did and that “[t]he wound was intact and there was no evidence of infection.” [15] He recalled that he reviewed Mr Old after his three or four days in hospital and found that he had “improved substantially.” [16]

4. [18]

   On 17 June 2010 Dr Miniter saw Mr Old again and noted, in his report to the general practitioner, that he had “progressed very well since last review.” Further pathology tests were undertaken in mid-June as a result of a consultation with Mr Old’s general practitioner who noted that the wound was improving but continued with antibiotic medication in the expectation of a further review in two weeks with Dr Miniter.

5. [19]

   On 30 June 2010 Mr Old’s general practitioner referred him to Dr Miniter for further review. He was seen that day. On inspecting the wound, Dr Miniter decided that the wound was not healing on the surface and that it needed surgical attention. He described his action in the following terms: [17]

6. [20]

   At that stage the fibula was not fully healed and, although Dr Miniter removed the knots and the EndoButtons on the lateral end of the TightRopes, the other surgical hardware remained in place, the intention being to remove the screws and plate in late July or early August. [19] The only other remaining hardware was the two fibre tightropes and the two EndoButtons on the medial side. There was no claim of negligence up to this point.

7. [21]

   The material sent for culture by Dr Miniter on 30 June produced responses to staphylococcus aureus and pseudomonas aeruginosa. “Light growth” was recorded in each case. The results also reported medication to which each was sensitive. Mr Old was treated by the infectious disease physicians at the hospital and was discharged on 7 July 2010.

8. [22]

   Mr Old was reviewed by Dr Miniter on 30 July 2010 and booked in for a further washout of the lateral wound on his right ankle, to be undertaken on 4 August 2010. The allegation of negligence turned upon his decision not to make a further incision on the medial side to remove the TightRope and the EndoButtons situated on the medial side of the tibia by which the fractured fibula had been stabilised. Those formed the remaining surgical hardware in the ankle.

9. [23]

   The next stage in the history was critical to the appellant’s claim in negligence. On 4 August 2010 Mr Old was readmitted to hospital and Dr Miniter determined that the bone had healed. A third operation was undertaken by Dr Miniter in the course of which he removed the screws and the plate from the lateral side of the ankle. The operation record contained the following:

10. [24]

    4 August 2010 was a Wednesday: it was initially anticipated that Mr Old would return home two days later. However, the pathology report was positive for Corynebacterium jeikeium and staphylococcus capitis, for which he was initially given intravenous antibiotics. Mr Old was kept in hospital for a further week, and discharged on Friday, 13 August.

11. [25]

    In his evidence in chief, Dr Miniter explained the operation on 4 August 2010 in the following terms, referring to its location as the lateral side of the right ankle: [21]

12. [26]

    The result was explored further: [22]

13. [27]

    In cross-examination of Dr Miniter, no reference was made to any action of the surgeon prior to 30 June 2010. His evidence as to the situation on 30 July was that, in consultation with the infectious diseases team, it was agreed that the best approach was to remove the plates and screws, being the step taken on 4 August. He was cross-examined as to the operation report for that procedure: [23]

14. [28]

    Counsel moved on to a question as to what Mr Old had been told about the operation, but the judge intervened: [24]

15. [29]

    The cross-examination then diverted to a separate issue. There was in evidence a letter written by Dr Senanayake on 18 August 2010 which referred to “removal of all of the hardware” during the operation on 4 August. The significance of that document was unclear. Indeed, the judge noted at the time that it gave rise to a possible inference that Dr Senanayake had “either misread or didn’t understand fully the significance of what Dr Miniter had written.” [25] It was suggested to Dr Miniter that the presence of some foreign material in the ankle would have had relevance to the infectious diseases team, to which he responded: “A possible relevance, yes.” [26] The matter was followed up by the judge in the following exchange: [27]

16. [30]

    Dr Miniter was also cross-examined about his decision not to open the ankle medially to recover the remaining EndoButtons and TightRope: [28]

17. [31]

    This evidence dealt squarely with the issue of breach of duty of care on the part of Dr Miniter. The case turned on a deliberate decision by an orthopaedic surgeon not to carry out an operative procedure for reasons which were clearly expressed and appeared to be plausible. A finding of lack of reasonable care depended upon either rejection of Dr Miniter’s evidence as to his reasoning process, or expert evidence that the choice made did not reflect competent orthopaedic practice at the time. The judge did not reject Dr Miniter’s evidence; it followed that the plaintiff’s claim turned on acceptance of expert evidence that the decision not to enter the ankle medially would not have been made by a reasonably competent and careful surgeon.

Orthopaedic expert evidence

1. [32]

   Mr Old obtained an expert report from Dr Robin Higgs, described as an Orthopaedic Consultant, Biomedical & Forensic Engineer. His first report of 3 December 2018 included the following opinion: [29]

2. [33]

   Although answering a question relating to “August 2017 when the plates and the screws were removed”, Dr Higgs opined: [30]

3. [34]

   It may be assumed that Dr Higgs understood the question as referring to the procedure carried out on 4 August 2010, although he did not correct the date. The report contained no further explanation of the basis for his opinions.

4. [35]

   On 17 July 2019 Dr Higgs provided a further report. That report addressed different opinions expressed by Dr Braslins, an infectious diseases physician, and by Dr Martin Sullivan, a foot and ankle surgeon. Dr Sullivan took a different view from Dr Higgs: Dr Higgs’ reply provided little explanation as to why Dr Sullivan’s report was wrong in relation to the presence of infection on 4 August 2010 and placed reliance upon what he understood Mr Old to have been told by Dr Miniter both in July and August 2010 as to the removal of hardware.

5. [36]

   Dr Martin Sullivan was engaged on behalf of Dr Miniter. In a report dated 16 May 2019, Dr Sullivan concluded:

6. [37]

   On 18 October 2019 Dr Sullivan and Dr Higgs took part in a conclave which produced a joint report. The first question asked in the conclave related to the surgery on 30 June 2010. Dr Sullivan stated that, given Dr Miniter’s concerns about the healing of the fracture, his decision to remove only the lateral anchors was competent practice. Dr Higgs’ response suggested, although it reads as somewhat incoherent, that he treated that decision as not acceptable practice and that the whole of the device should have been removed at that stage.

7. [38]

   Each expressed different opinions on the critical surgery carried out on 4 August 2010. The relevant opinions were based on certain assumptions proposed by the defendant in the following terms: [31]

8. [39]

   Dr Higgs expressed the following view as to the professional competence of the surgery undertaken on 4 August 2010:

9. [40]

   The final sentence of this opinion was potentially inconsistent with the assumptions, depending upon what form of inspection Dr Higgs had in mind, and with the evidence. Professor Sullivan expressed the following opinion:

10. [41]

    It is convenient to note the following further views expressed by the orthopaedic experts, being material relevant to the final finding as to causation:

11. [42]

    The orthopaedic experts gave evidence jointly. Dr Higgs repeated his opinion that once infection was found (in June 2010) on the lateral side, the whole of the device should have been removed. In answer to a query from the trial judge as to his statement that Dr Miniter did not inspect the medial side, Dr Higgs effectively said that he had to remove the medial structures in order to determine that were was no infection there. [32] In response, Dr Sullivan noted that it was “not a wise thing to do to remove the plate and screws after they’ve only been in for six weeks.” He referred to a paper published by Berkes et al in April 2010 which concluded: [33]

12. [43]

    Perhaps nothing turned on this particular issue, but it was one of a number of examples of Dr Sullivan providing more precise and comprehensive reasoning to support his responses to questions than did Dr Higgs.

13. [44]

    Dr Higgs was cross-examined as to the surgery in August 2010 and as to his view that the whole of the stabilising device should have been removed. Counsel for Dr Miniter put the following propositions: [34]

14. [45]

    Although it was not articulated so clearly to Dr Miniter in cross-examination, counsel for Mr Old questioned Dr Sullivan as to why it was appropriate to take out the hardware from the lateral side, but not the medial. The question and answer were as follows: [35]

Infectious diseases experts

1. [46]

   It was an assumption underlying Dr Higgs’ opinion that the infection which was discovered in 2017 was a continuation of the infection which was identified in August 2010 on the lateral side and had lain dormant for at least six years. Dr Phillip Braslins, consultant physician in infectious diseases and internal medicine, noted:

2. [47]

   It is evident from the foregoing discussion that any obligation to remove residual hardware turned on the risk of infection resulting from the continued presence of the redundant material. That risk was largely a matter for consideration by infectious diseases experts, although their views would not necessarily govern what constituted competent orthopaedic practice in Australia in 2010. Nevertheless, it was inevitable that they were asked to express opinions touching on that topic and did so. Dr Guinness, the infectious diseases expert engaged for the plaintiff, expressed an opinion in his original report as to whether it was “required to remove all hardware, including the tightrope device”. He responded: [36]

3. [48]

   Dr Braslins addressed the following question: [37]

4. [49]

   A joint report of the conclave of infectious diseases specialists, held on 8 October 2019, included the following question and answers: [38]

5. [50]

   In their joint evidence, both Dr Guinness and Dr Braslins were asked questions in relation to the steps taken by Dr Miniter on 4 August 2010. Dr Guinness gave the following evidence: [39]

Assessment of breach of duty

1. [51]

   Acceptance of Mr Old’s case with respect to breach of duty turned on acceptance of Dr Higgs’ opinions in preference to those of Dr Sullivan. As noted by counsel for the respondent, there were a number of reasons which favoured acceptance of Dr Sullivan. First, there was the question of relevant experience. Dr Higgs ceased operating in 2001 and had never used the tightrope fixation device. [41] By contrast, Dr Sullivan had specialised in foot and ankle surgery since 1995 and was, at the time of trial, the Director of the North Shore Private Foot and Ankle Clinic, having been the Chief of the Foot and Ankle Unit in the Department of Orthopaedic Surgery at St George Hospital from 1995-2001 and a visiting medical officer in the Department of Orthopaedic Surgery at St Vincent’s Private Hospital, Sydney since 1994. [42] He has an extensive record of publications in relation to foot and ankle injuries, especially since 2004. [43]

2. [52]

   Dr Sullivan was cross-examined with respect to his experience with the tightrope system: [44]

3. [53]

   Secondly, Dr Sullivan’s reasoning addressed the practical issues. Thus, following the passage set out above, Dr Sullivan gave evidence of a case in which he had removed the lateral button, but, in the absence of any infection on the medial side, had not made a further incision. The following exchange took place: [45]

4. [54]

   Dr Higgs was given an opportunity to respond and stated: [46]

5. [55]

   That response did not come to grips with the specific issue of exacerbating the infection; nor did it address the risks of further damage to soft tissue and bone caused by removing the tightrope. Finally, in so far as Dr Higgs thought that the whole of the surgical hardware should have been removed during the 30 June 2010 surgery, he did not address Dr Sullivan’s reasoning as to the risk of an adverse outcome because the fracture had not fully healed, nor the underlying support for Dr Sullivan’s position in the contemporaneous article by Berkes et al.

6. [56]

   Thirdly, Dr Sullivan’s opinion conceded room for judgment, noting, “you make a decision based on … a spectrum.” Dr Braslins’ opinion, set out in full at [48] above, also accorded space for judgment, noting that “[t]he decision on whether or not to operate at a later date, to remove the retained devices, would be made with consideration given to the risk of a new infection or disability caused by further surgery.” Dr Braslins was able to “fully understand why the endbutton/Tightrope devices were left in place, after a long course of oral antibiotic therapy …, while there was no clinical or laboratory evidence of infection from December 2010 until May 2017.” By contrast, Dr Higgs’ position was dogmatic and appeared to leave little room for judgment in the specific circumstances of the case.

7. [57]

   Dr Higgs’ evidence does not, in my view, provide an adequate basis to establish a breach of duty by Dr Miniter in failing to remove the medial hardware on 4 August 2010. I would accept that Dr Miniter’s decision involved a matter of professional judgment as to which the opinions of professional peers may vary. That does not demonstrate that his decision fell outside the range of competent professional practice. If it were necessary to determine whether the decision was the correct one or not, I would prefer the reasoned justification of Dr Sullivan for considering that it was correct.

8. [58]

   As noted in the passages cited above, Dr Guinness thought it not unreasonable to leave the medial side of the ankle if there were a concern that the lateral side involved a level of infection, although sepsis was not apparent according to the operation note. His concern that four separate bacteria had been located in the wound could not have arisen until after the pathology results were received for the 4 August 2010 operation. It appears to have been that factor which led Dr Guinness to suggest that the remaining hardware should have been removed subsequently, after it was believed that infection had been either eradicated or suppressed by antibiotics. No doubt because that case had not been pleaded, no question was put to Dr Guinness as to whether it would have been unreasonable for Dr Miniter to fail to advise Mr Old to undergo a further procedure once the pathology results were known. Nor was Dr Miniter asked questions along those lines. Indeed, there was no relevant exploration with Dr Miniter as to his knowledge and response to the pathology results of 4 August 2010.

9. [59]

   Suffice it to say, the evidence of the infectious diseases experts provided no basis for concluding that Dr Miniter had, on the case pleaded, and to which Dr Miniter had responded, breached his legal duty of care to Mr Old. Both Dr Guinness and Dr Braslins expressed the view that the disclosure of four separate infectious agents in Mr Old’s ankle suggested a significant breach of infection control procedures at the hospital. However, it was not suggested that Dr Miniter was responsible for such breaches, nor was the hospital sued.

10. [60]

    It follows that no breach of duty was established on this analysis of the evidence.

Reasoning of trial judge

1. [61]

   The trial judge came to a contrary view. It is necessary to consider the basis of his reasoning in order to determine whether he enjoyed some advantage which should lead an appeal court to respect his conclusion and not intervene.

2. [62]

   The trial judge preferred the evidence of Dr Higgs to that of Dr Sullivan. The judge gave six reasons for his preferring the evidence of Dr Higgs. None of these is in my view persuasive, but they must be addressed.

3. [63]

   The first reason was expressed as follows:

4. [64]

   This reason contained two limbs, the first dealt with “the identified risk of harm” and the second with the risk of “bacterial osteomyelitis” On the appeal, the respondent took issue with the formulation of the risk of harm as overly specific. Counsel adopted the warning with respect to formulating a duty of care identified by Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan. [47]

5. [65]

   There is substance in the complaint as to the particularity with which the risk was identified, [48] but the issue is not of immediate concern. There was a risk of infection developing in the right ankle whether or not the remnants of the tightropes were left in situ; there is no doubt that there was a duty to take reasonable precautions against that risk. The first limb provided no basis for preferring one opinion to another.

6. [66]

   The second reason given by the trial judge was that the redundant medial remnants of the system “served as a potential nidus for possible infection”. To leave the components in situ “without a specific plan of management, including for removal at a later time, risked the potential harm”. [49]

7. [67]

   Again, the statement may be accepted: however, it provided no basis for preferring the opinion of Dr Higgs to that of Dr Sullivan. Further, it will be necessary to return to the possibility that removal might have taken place at a later time. That approach was neither pleaded, put to Dr Miniter, nor addressed by the orthopaedic experts: it was raised by Dr Guinness. It appears, however, to have been the step which the judge ultimately held to involve a breach of duty, a matter to which it will be convenient to return later.

8. [68]

   The third reason relied by the trial judge was as follows:

9. [69]

   The “theoretical construct” identified by the trial judge appears to have been an inference drawn from the evidence of Dr Sullivan. It is true that Dr Higgs considered that all elements of the surgical hardware should have been removed on 30 June and, if not then, on 4 August. That was not because they were to be viewed as “one system” but because he considered the non-removal of any element constituted an undue risk of infection. It is difficult to identify this reason as doing more than stating the issue on which the experts disagreed. Dr Sullivan was undoubtedly challenged as to the basis of his conclusions, but not by suggesting he had adopted some “theoretical construct” which was not “reasonable”. This ground provided no basis for preferring one opinion over another.

10. [70]

    The fourth ground was in effect an alternative formulation of the third, but identified the conflicting approaches, not as involving separate components of the hardware, but as involving different compartments of the ankle. The passage was completed by the following statement: [50]

11. [71]

    There are three problems with this analysis. First, it appears to add nothing to the issue identified as whether elements of the surgical hardware should remain. That was the focus of the case, not whether bacterial infection could move from one area to another. Secondly, views of the microbiologist in this respect were not directly relevant to the identification of competent orthopaedic practice. Indeed, Dr Guinness, in answer to a question as to whether Dr Miniter acted in a manner which was widely accepted as competent professional practice stated: [51]

12. [72]

    Thirdly, if the infectious diseases evidence were to be taken into account, it would be necessary to consider the extent to which the continued treatment by the infectious diseases experts at the hospital was itself a reasonable and sufficient precaution against the development of future infection. The trial judge accepted the reported view of Dr Senanayake that by November 2010 Mr Old was free of infection: he remained free of infection until late 2016, a period of six years. The later infection of the right ankle was not diagnosed until May 2017.

13. [73]

    The fifth reason given by the trial judge for preferring Dr Higgs was that he regarded Dr Miniter’s visual examination of the medial side of Mr Old’s right ankle as an insufficient basis for concluding that no infection was developing on the medial side. [52] This reasoning merely reflected the risk that bacteria remained in or about the surgical hardware. That was not in dispute. The question was how best to limit the possibility of a future attack of bacterial osteomyelitis. Merely to state the problem provided no basis for preferring one solution to another.

14. [74]

    The sixth reason given by the trial judge was significant and should be stated in full:

15. [75]

    This reasoning found no support in the evidence of Dr Higgs, who was of the view that all hardware should have been removed on 30 June 2010. The possibility of a later removal of the medial hardware was not put either to Dr Sullivan or Dr Higgs nor, more importantly, to Dr Miniter. Although it envisaged a further procedure “a month or so later”, that was inconsistent with the conclusion reached by the trial judge in considering causation where the judge stated:

16. [76]

    In my view, the reasoning of the trial judge provided no persuasive basis for rejecting the opinions of Dr Sullivan. Dr Guinness, in the passage set out above, expressed no view as to which opinion reflected competent orthopaedic practice in 2010. Dr Braslins, whose evidence on this question the trial judge disregarded, thought Dr Miniter’s approach reasonable and understandable.

17. [77]

    It is convenient also to note the following response by the trial judge to that which he understood to be the contrary view:

18. [78]

    Although the four numbered responses were said to arise “on the evidence”, as is clear from the second one, there was no evidence providing support for the responses. More importantly, the responses invite the question as to why a reasonable orthopaedic surgeon might not have expected antibiotic treatment to deal with any dormant infection on the medial side and why a reasonable orthopaedic surgeon might not have properly made the same assumption that the trial judge did as to treatment of cross-infection caused by an operation.

Breach of duty – conclusion

1. [79]

   Dr Miniter stated that he made a deliberate choice not to remove the remaining Endobuttons and braided cord from the medial side of the appellant’s ankle. The judge accepted that evidence. No question was asked of Dr Miniter as to what an operation on the medial side would have involved: however, Dr Sullivan gave evidence of the difficulty of removing the cord from the lateral side, and the possible need to drill a “bigger hole” in the two bones (the fibula and tibia) through which the cords ran. No consideration was given by Dr Higgs, nor the trial judge, to the significance of the proposed additional procedure.

2. [80]

   Although the whole of the case turned on the risk of future infection (and the risk of harm should properly have been so identified), the evidence clearly demonstrated that a plan of management had been put in place following the operation on 4 August 2010, involving the infectious diseases team who took over the treatment of Mr Old and considered that, by November 2010, his osteomyelitis had been cured. There was no consideration by Dr Higgs, or the trial judge, as to why that did not constitute a reasonable plan of management for the further treatment of Mr Old. Dr Miniter discussed the management plan with Dr Senanayake.

3. [81]

   Dealing with the pleaded case, the judge identified and addressed the issues in the following terms:

4. [82]

   The trial judge appears to have upheld Mr Old’s claim with respect to particulars (a) and (b). As to par (a), the judge concluded at [425] that reasonable care in this instance “meant not leaving elements of redundant surgical hardware in situ”. That finding was ultimately based on the preference for the evidence of Dr Higgs which has been discussed above. In my view the evidence did not support such a finding. Indeed, in the application of the three paragraphs of s 43(1) of the Civil Law (Wrongs) Act, the judge also appears to have accepted that view. In considering “precautions required of a reasonable person” the judge noted that “a reasonable person in the position of Dr Miniter had a number of options at his disposal in the nature of available precautions”. [53] The first was to obtain Mr Old’s consent to the course he took: the failure to take that step was not a pleaded particular of negligence. [54] The reasoning continued:

5. [83]

   A number of observations should be made with respect to this reasoning. First, as to the second course, at [403], the failure to inform Mr Old that aspects of the hardware had been left in his ankle formed no part of the case in negligence that the judge was addressing. Nor was it clear that such a breach had any consequential significance. At [404], the judge identified two issues: one was the establishment of a future management plan, the other the provision of information to Mr Old. The latter point has been addressed. As to the former point, that appeared to be covered by the passing of responsibility to the infectious diseases team, noted at [405] and acknowledged at [406]. The finding of “insufficient precautions” at [406] therefore relies upon the failure to inform the patient that elements of the hardware remained in his ankle, which was not a pleaded particular of negligence and appears to have had no practical consequence.

6. [84]

   What remained in the judge’s reasoning appears to have involved an acceptance of particular (b), namely a finding of failure accurately to record and describe the surgery carried out on 4 August 2010. That turned on the statement in the operation record that all hardware had been removed “laterally”. However, Dr Miniter refused to accept that there was any ambiguity or lack of clarity in the operation note: no expert evidence was called to contradict that opinion, nor to establish that the note was inadequate according to current orthopaedic practice.

7. [85]

   An inference was available that Dr Senanayake believed that all the hardware had been removed. That inference could be drawn from a letter which used that language and which was sent to Dr Miniter. What in fact Dr Senanayake believed is not known: he was not called. Nor is it known whether, if in fact he had misunderstood the operation note, but had been corrected, he would have taken any other course in his treatment of Mr Old. The trial judge concluded:

8. [86]

   That conclusion was not precisely stated in terms relevant to breach, namely that a reasonable person in the position of Dr Miniter would not have failed to make a note of the components left in situ. Even if so stated, there was no expert evidence to support such a finding as to the limits of competent professional practice. Breach of duty on that basis cannot be upheld.

9. [87]

   It remains to consider the “alternative case”, namely that it may not have been unreasonable to leave the medial hardware in situ on 4 August, but that steps should have been taken at an appropriate time, when the infection had been successfully treated, to remove that hardware. While acknowledging that such a case was not pleaded, noting that a subsequent removal procedure had been suggested by Dr Guinness, the judge held that the issue “was sufficiently identified in the evidence for it to be considered at trial.”

10. [88]

    As appears at [75] above, on one view it was this case that the judge upheld. However, he should not have done so. First, the findings of the trial judge (which involved elements of uncertainty as to timing and circumstances) were not put to Dr Miniter. No doubt that was because they were not pleaded and were not identified in the expert reports prepared prior to trial, except belatedly by Dr Guinness.

11. [89]

    Secondly, no attention was given in considering breach to the joint evidence of the infectious diseases experts cited above, which alone supported the “later procedure” hypothesis and provided no affirmative support for the pleaded case.

12. [90]

    For these reasons, the proper conclusion is that there was no breach of duty on the part of Dr Miniter in his treatment of Mr Old. The claim should have been dismissed on that basis.

Causation

1. [91]

   While the judgment below should be upheld on the basis of the first matter raised in the respondent’s notice of contention, it is appropriate to address the challenge brought by the appellant to the failure to find that the breach identified by the trial judge caused the harm, namely the osteomyelitis which was diagnosed and treated in May 2017.

2. [92]

   The appellant submitted that the trial judge erred in failing to find a causal connection established between the retention of the EndoButtons and braided cord on the medial side of the ankle and the osteomyelitis suffered by Mr Old in 2017. For the reasons explained below, in my view the appellant’s submissions in that regard should be accepted. As it will not affect the outcome of the case, the reasons may be identified more succinctly than might otherwise have been appropriate.

3. [93]

   The point on which the infectious diseases experts essentially differed was the likelihood that the infection which was addressed in May 2017 was a recurrence of an infection with staphylococcus aureus which had been present in June 2010, although not identified following the operation on 4 August 2010, or was the result of a fresh infection. Little turned on this dispute, because Mr Old was content to rely upon either hypothesis.

4. [94]

   The element of “factual causation” identified in s 45(1)(a) of the Civil Law (Wrongs) Act required that “the negligence was a necessary condition of the happening of the harm”. This common form of the statutory provision [55] may be formulated in terms of a counterfactual, namely whether the claimant would have suffered the harm absent (or but for) the negligence of the defendant.

5. [95]

   The relevant conduct of Dr Miniter must, for this purpose, be the failure to remove the hardware on the medial side of the ankle. Mr Old’s case was that the evidence supported a negative conclusion to the counterfactual question on either of two bases. The first basis was that the cord in the cavity in the bone, and the EndoButton securing it, provided an environment in which bacteria could lie dormant and undetected for many years before a further outbreak of infection. In the alternative, a fresh injection of bacteria, possibly through a later wound, could readily lodge in the same foreign material, giving rise to a further outbreak of infection in that area. The fact that reinfection (or a new infection) arose in that area suggested one of two occurrences. Because the infection occurred in the right ankle and nowhere else, it could readily be inferred that the source of the infection was either the foreign material or simply the structure of the ankle. Evidence that a recurrence or reinfection was an extremely rare event was relevant to the steps Dr Miniter should have taken in August 2010, but was irrelevant to the question of causation.

6. [96]

   There was quite limited evidence directed to the critical issue. In the course of the joint evidence, the following exchange occurred between Dr Guinness and counsel for the respondent: [56]

7. [97]

   Secondly, the following exchange occurred between the trial judge and Dr Guinness, which started with a discussion as to dormancy but continued as follows: [57]

8. [98]

   That evidence appeared to support the proposition that it was the foreign material which was the likely source of the infection in 2017. However, the joint evidence ended with the following exchange between counsel for Mr Old and Dr Braslins: [58]

9. [99]

   Assuming that Dr Braslins’ reference to a risk ratio of two or three referred to what is sometimes described as “relative risk”, that observation would involve at least a doubling of the risk and thus suggest that the event which in fact occurred was more likely than not to have been caused by the retained foreign material.

10. [100]

    Each of the passages set out above involved something of a diversion from the principal topic under discussion. Thus Dr Braslins wished to talk about a “very, very, very small” risk, a matter of considerable importance in relation to the taking of precautions, but of no importance with respect to causation of a risk which has materialised. [60]

Causation – reasoning of trial judge

1. [101]

   The dispositive reasoning of the trial judge commenced with the following propositions:

2. [102]

   With respect to [477], identifying the question by reference to “emergence or recurrence of an infection” was correct. The reference to “fault” on Dr Miniter’s part must be understood as a failure to remove the foreign elements on the medial side of the ankle.

3. [103]

   With respect to [478], it is true that Dr Guinness agreed with the proposition that “once someone has had osteomyelitis with staph A it’s possible for the staph A to come back regardless … [e]ven if there is no fixation devices?” [61] However, Dr Guinness continued: [62]

4. [104]

   The judge’s reasoning then diverted to considering the difficulty in knowing where particular swabs were taken at the respective operations on the ankle. That issue is only relevant to the question of whether there was a recurrence of a dormant staphylococcus aureus infection, or whether the original infection identified in May 2010 had been destroyed by antibiotics and was therefore no longer present at 4 August 2010, or May 2017. Having decided that it was “not possible to rationally determine” whether the original osteomyelitis was eradicated or just suppressed, the judge then stated “it is not possible to reasonably exclude the hypothesis advanced by Professor Braslins that the plaintiff’s cellulitis infection in 2016 caused Staphylococcus Aureus to enter the bloodstream and lodge at the site of the previous surgery”. [63] The first proposition is not determinative of causation; the second, apart from being expressed in terms redolent of the criminal burden of proof, bypassed the question of why a new infection might lodge at the site of the previous surgery.

5. [105]

   The judge then accepted that “it is undoubted that the presence of a foreign body can increase the risk of infection by providing a focus for a blood borne infection, whether of long standing or recent origin” [64] but dismissed that consideration because “the risk of that occurring was described as low”. That reasoning ignored the fact that the risk had materialised and thus sidestepped the question of whether, on the probabilities, the risk would not have materialised absent the presence of foreign material.

6. [106]

   In order to explain the last proposition, it is desirable to set out the whole of the extract relied upon by the trial judge. There were two elements to that passage, the first being a statement by Dr Guinness to the following effect: [65]

7. [107]

   The second passage relied upon was the immediately following response by Dr Braslins: [66]

8. [108]

   I do not understand Dr Braslins to have been assessing relative risk in this passage. The paper to which he appears to have been referring, identified by him in his original report of 29 April 2019 (page 3), involved a study described as follows: [67]

9. [109]

   In his report, Dr Braslins also referred to the infection rates identified by Trampuz and Zimmerli (2006) stating that about 5% of initially inserted internal fixation devices became infected but that the incidence of infection after internal fixation of closed fractures is generally lower (1%-2%). In a further passage in his report, Dr Braslins stated: [68]

10. [110]

    Without further exploration (and none took place during the trial) these figures were not capable of supporting a finding that the relative risk of developing osteomyelitis at the site of the operation, in the presence of foreign material, was less than double the likelihood of such an event in the absence of foreign material. Accordingly the passage did not support an adverse conclusion in respect of causation.

11. [111]

    The trial judge then stated:

12. [112]

    The statement relied upon was taken out of context and was not relevant to the issue of causation. The comment must be read in the context of the first aspect of the answer which appeared in the conclave report: [69]

13. [113]

    As explained above, and as Dr Guinness himself explained in his oral evidence, the question of whether the foreign material harboured dormant bacteria or attracted a fresh infusion was not the issue: if it did either, causation was established. Dr Guinness was merely stating that he could not definitively know which was the case.

14. [114]

    The remainder of the judge’s reasoning on causation assumed that the source of the bacteria did matter. In this respect the reasoning was flawed.

15. [115]

    In assessing relative risk, it is no doubt true that Dr Braslins was more constrained in his assessment of the importance of the foreign material than was Dr Guinness: however Dr Guinness’ clear and largely uncontradicted proposition that a blood borne infection “wouldn’t have settled in that ankle if there hadn’t been, I believe, foreign materials still present” was sufficient to establish causation. [70]

16. [116]

    Had there been a breach of duty by leaving foreign material in the ankle, because of the risk of later infection, the risk which in fact materialised would probably not have materialised absent the foreign material. Thus, causation would have been established.

Damages

1. [117]

   The second ground of the notice of appeal challenged the judge’s contingent finding with respect to damages both in respect of non-economic loss and past economic loss. It was also said that the judge erred in failing to award interest. These issues were addressed briefly in writing and not at all orally. As they do not affect the outcome of the appeal, they may be dealt with succinctly.

2. [118]

   General damages under the Civil Law (Wrongs) Act were not subject to the constraints which apply under the Civil Liability Act, s 16. The judge was faced with competing claims by the plaintiff for an amount of $100,000 and on the part of the defendant, in the range of $35,000-$50,000. He notionally awarded $65,000. The primary complaint was that the judge did not consider that additional physical disability had been established, beyond that which would have occurred in any event. [71]

3. [119]

   It may be, as the appellant submitted, that the proper course was to take into account his actual physical disabilities, subject to the need to deal with the various injuries and afflictions he had suffered unrelated to the right ankle injury, and then discount any possible level of future disability unrelated to the negligence by an assessment of vicissitudes. However, it is not apparent that the result should be materially different if the proposed approach were to be taken. I would not interfere with the judge’s assessment.

4. [120]

   With respect to economic loss, the claim was based on the proposition that the business in which Mr Old worked with his brother suffered a loss as a result of the need for it to incur further expense as a result of his disability in the first half of 2017. The judge, correctly, noted that the assumption that the company incurred additional costs did not demonstrate loss to the appellant. The evidence did not disclose a loss of income. [72] No error was demonstrated in that reasoning.

5. [121]

   The appellant’s written submissions also made very general claims for future domestic assistance and future treatment expenses, the former in the sum of $20,000 and the latter in the sum of $5,000. The former claim involved an assessment of one hour per week of domestic assistance, although no explanation was provided as to what assistance was required. The lack of evidence in that respect was critical to the refusal of the trial judge to award such an amount; [73] no further assistance is provided by the written submissions on the appeal and the claim must be rejected. A similar problem arose with respect to the claim for future treatment expenses: the amount is in any event trivial in the circumstances.

6. [122]

   Absent an award of damages, there is no need to revisit the question of interest: so much was recognised in the written submissions.

7. [123]

   The outcome of this analysis is that a reasonable assessment of the value of the case should have left it below the threshold under which leave was required. I would have granted leave to appeal, but limited to the issues relating to liability.

Contributory negligence

1. [124]

   The respondent’s notice of contention challenged a finding of the primary judge that there had been no contributory negligence on the part of the appellant in failing to obtain earlier treatment for the infection in his right ankle in 2017. It is not necessary to address that issue.

Conclusions

1. [125]

   Although as asserted by the appellant, the trial judge erred in dismissing the claim on the basis of a failure to establish causation, as the respondent correctly asserted in his notice of contention, the judge also erred in finding breach of duty of care. Accordingly the appeal must be dismissed. The appellant must pay the respondent’s costs in this Court.

2. [126]

   The Court should order accordingly:

   1. (1)

      Dismiss the appeal from the judgment of the District Court delivered on 31 July 2020;

   2. (2)

      Order that Mr Old pay Dr Miniter’s costs in this Court.

3. [127]

   MACFARLAN JA: I agree with Basten JA.

4. [128]

   MEAGHER JA: I agree with Basten JA.