Williams v Fraser

1. [1]

   HIS HONOUR: Hailee Williams was born in March 1994. By June 2009, when she was 15, Ms Williams had developed pain in her left hip. She consulted her general practitioner about this who referred her in November that year to Dr Michael Stening. Dr Stening reported on 21 November 2009 that Ms Williams suffered from “iliac apophysitis left anterior superior iliac spine”. Between June 2010 and May 2012, Ms Williams continued to experience, and to complain to her general practitioner of, pain in her hip and lumbo-sacral region. She was referred to Dr John Fraser for a pelvis and hip X-ray and an ultrasound of both hips. In his reports upon the X-ray dated 24 May 2012 and the ultrasound dated 31 May 2012, Dr Fraser indicated that there was no, or no significant, evidence of abnormality. Dr Fraser’s reports were provided to Dr Stening when he examined Ms Williams again on 20 June 2012. On that day, Dr Stening reported to the general practitioner that Ms Williams had tenderness over her anterior superior iliac spine with discomfort on hyperextension of the hip. He expressed the view that Ms Williams had developed a reccurrence of her iliac apophysitis and recommended cortisone injections, three weeks of rest and abstinence from sports. Ms Williams was given an injection by Dr Stening shortly thereafter.

2. [2]

   Ms Williams alleges in these proceedings that her condition was not thereafter clinically managed appropriately or indeed at all. After 20 June 2012, Ms Williams’ condition became progressively worse. She alleges that Dr Fraser had been given a history of lower lumbar pain in addition to hip pain but failed to inform her general practitioner about this. Despite his original response to the second further amended statement of claim, Dr Fraser has now admitted that he breached his duty of care to Ms Williams in that he failed to report the existence of her pars defect in the X-ray report on 24 May 2012. Ms Williams alleges further that Dr Fraser should have reported upon her complaints of back pain which would have alerted Dr Stening. Ms Williams maintains that if Dr Stening had been aware of the existence of her pars defect, in combination with her complaints of pre-existing back pain, she would have been treated conservatively, or in a way that would have avoided a deterioration of her condition and what became the need for later surgery. In short, Ms Williams alleges that Dr Stening’s reliance upon Dr Fraser’s deficient X-ray report meant that she was in a vulnerable position with undiagnosed spondylosis or spondylolisthesis that exposed her to a risk of harm if left untreated. She contends that Dr Stening negligently failed in such circumstances to arrange for or to offer her appropriate conservative, non-operative clinical management and that the operation to which she ultimately came would and should have been entirely avoided.

3. [3]

   More particularly, Ms Williams’ 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. Ms Williams maintains that had her pars defect been identified and reported by Dr Fraser, her condition would have been investigated further and she would have been sent for specialist physiotherapy and to a paediatric spinal specialist. Ms Williams alleges that she would have been advised to cease work immediately or at least any work that required bending, lifting or twisting and would have been given time for her ligaments to mature and tighten. She would have been told to strengthen her core muscles. Ms Williams says that she would in these ways have avoided doing any further damage through inappropriate work or engaging in what to her were potentially dangerous work practices. It is Ms Williams’ case that she would have been diverted from surgery and would not have suffered her current pain condition.

4. [4]

   There is a secondary issue with respect to Dr Fraser. Ms Williams maintains that he was given a history by the general practitioner that she was suffering from bilateral hip pain as well as from lower back pain. There remains a debate about the state of his reports in that he did not set out the presenting clinical condition upon which he was commenting. In other words, in terms of the X-ray report, he did not include any history at all and in terms of the ultrasound report he only included bilateral hip pain but did not include lower back pain.

5. [5]

   The claim against Dr Stening largely relates to his history taking, examination, diagnoses and clinical management on two primary occasions, 20 June 2012 and 3 December 2012. Ms Williams attended each of those consultations with her mother, but there is a dispute as to whether Ms Williams or her mother ever made a complaint of back pain to Dr Stening. Ms Williams and her mother say that they did: Dr Stening denies it and in so doing relies substantially on his letter recording the consultation sent to the general practitioner. Dr Stening says that if he had been given a report of back pain, he would have instituted the non-operative treatment program described earlier. The essence of Ms Williams’ claim is that Dr Stening’s failure to heed her complaints of back pain or to take a proper history affected his diagnostic assessment and the instigation of appropriate restrictions and conservative non-operative management. In the events that occurred, Ms Williams underwent a lumbo-sacral spinal fusion in June 2013. Her post-operative pain syndrome dates from then.

6. [6]

   This case is far more complicated than that summary suggests, and to the extent that it attempts efficiently to encapsulate the essence of Ms Williams’ contentions, it is potentially misleading. As the parties have acknowledged, there are significant and contentious factual disputes touching the questions of the defendants’ alleged breaches of duty and whether any breach that is admitted or proved is causally related to damage that may have been sustained, that require resolution before Ms Williams’ allegations and the associated respective liabilities of Dr Fraser and Dr Stening can be understood and determined. It is to those factual matters that attention must be directed.

7. [7]

   In that setting, it is instructive to record in general terms the historical framework or summary which Hailee Williams maintains informs the allegations of breach of duty which she asserts in these proceedings. As will later emerge, this history is not completely uncontentious.

Hailee Williams’ historical summary

1. [8]

   Hailee Williams was born with congenital or dysplastic spondylolysis (pars defect). She was regularly involved in sport during her schooling and teen years including dancing and gymnastics. Later, she started running regularly and did kickboxing. Her medical history includes asthma and she suffered recurrent urinary tract infections. She had an episode of pyelonephritis. She also underwent a tonsillectomy.

2. [9]

   In November 2009, Hailee Williams started experiencing left hip pain for which her general practitioner Dr Amin Mutasim referred her for pelvic X-rays. She was referred to Dr Michael Stening, an orthopaedic surgeon. He saw her first on 21 December 2009 and diagnosed a left anterior superior iliac spine apophysitis. He noted a six-month history of symptoms and advised conservative management.

3. [10]

   Ms Williams first reported right-sided lower back pain to her general practitioner in November 2011. About that time, she took a job in a Chinese restaurant as a waitress, which involved clearing tables, taking orders and carrying plates. She did not have any difficulties with these tasks. During this time, she would also attend a gymnasium several times per week and engaged in kickboxing style exercise. She was not involved in the combat style of this sport.

4. [11]

   In about March 2012, Ms Williams commenced work in a childcare centre. Initially, she did not find this work difficult, but after one month or so she developed pain in the left hip area. At the time she was 18 years old. Her work in childcare required repetitive lifting from the ground to waist level. There was also a lot of twisting of her lower back.

5. [12]

   Between December 2011 and May 2012, Ms Williams reported episodic neck, back and right hip pain according to the clinical records of Hawkesbury Family Practice.

6. [13]

   On 21 May 2012, she attended the Richmond Market Place Medical Centre and reported bilateral hip pain and tenderness over the left anterior superior iliac spine and L4/5 region. Her general practitioner referred her for X-rays of the right hip, left hip and pelvis, an ultrasound of both hips and sent her for an orthopaedic review.

7. [14]

   The referral notes for X-ray mentioned lumbar spine discomfort. However, there was no formal request for an X-ray of the lumbar spine.

8. [15]

   On 24 May 2012, X-rays of the hip and pelvis were undertaken, and a report prepared by Dr John Fraser, radiologist. Dr Fraser reported in summary that the hip joints were normal and that there was no evidence of arthropathy or other bony abnormalities. The ultrasound of the hip undertaken at Castlereagh Imaging on 31 May 2012 was reported as normal, again by Dr Fraser. In the report of the X-ray, there was no disclosure of a pars defect.

9. [16]

   Ms Williams attended Dr Stening on 20 June 2012. She brought X-rays of her hips and pelvis to that appointment. Dr Stening did not identify a pars defect on the X-rays or the films. On that occasion, Dr Stening recorded the history of recurrent pain around the anterior aspect of both hips and tenderness over the anterior superior iliac spine. Dr Stening made a diagnosis of left and right ASIS apophysitis. He ordered conservative cortisone treatment as well as rest. Despite that, the symptoms continued. Dr Stening gave Ms Williams a medical certificate restricting her from lifting while squatting for three months. He advised her that she should not do any contact sport and that the symptoms would resolve as her growth plates developed.

10. [17]

    In early December 2012, Ms Williams reattended Dr Stening as her pain had not resolved. She stated that at the time she was suffering from back and hip pain. Dr Stening ordered an MRI and ultrasound of her left hip. According to his notes, he did not order any examination of the spine because he was not given any history of the back pain.

11. [18]

    The MRI and ultrasound of the left hip were reported as normal. Treatment continued to be conservative and Dr Stening referred Ms Williams to a physiotherapist (O’Neil Physiotherapy). The referral letter from Dr Stening stated ‘Bilateral ASIS tendonitis for strengthening programs’. There was no reference to back pain in the referral.

12. [19]

    On 10 January 2013, Ms Williams attended the O’Neil Physiotherapy Practice and saw Mr Craig Seabury, physiotherapist. He recorded history of worsening bilateral hip pain for more than one year. He also noted lumbar discomfort.

13. [20]

    Physiotherapy continued without any success. Mr Seabury reported back to Dr Stening on one occasion in a letter erroneously dated 28 June 2013.

14. [21]

    Hailee Williams was prescribed some home exercises. During this period of performing exercises, her problems became worse and she was struggling at work. Sometime around February 2013, she found it difficult to climb stairs. Physiotherapy continued until approximately 20 May 2013.

15. [22]

    On 3 May 2013, Ms Williams was seen by an osteopath, Dr Thomas Samels. She was reviewed three times by him, and he recorded findings of low back pain and hip pain. Sometime in May 2013, Ms Williams started experiencing urinary incontinence.

16. [23]

    On 5 June 2013, Dr Samels ordered a lumbar spine X-ray. In June 2013, Hailee Williams consulted her general practitioner seeking a referral to Associate Professor William Walter, an orthopaedic surgeon, for a second opinion. On 11 June 2013, she had an X-ray of her lumbar spine which demonstrated a 1.7cm anterior slip of L5 on S1 due to bilateral pars defects amounting to a grade II spondylolisthesis. The next day Ms Williams saw Dr Walter. He recorded a history of 18 months of pain which was initially a stabbing pain in the groin, but which had moved to the lower back and buttocks bilaterally.

17. [24]

    Dr Walter reported that Hailee Williams was suffering from paraesthesia on the dorsum of the right foot, along with urinary incontinence with urgency. He performed a neurological examination and reviewed some of her prior radiology, nothing that an X-ray of her lumbar spine showed 50% spondylolisthesis at L5 on S1. He then referred Ms Williams to Dr Andrew Cree, orthopaedic surgeon, for urgent review.

18. [25]

    On 12 June 2013, she was admitted urgently to the Mater Hospital.

19. [26]

    On 13 June 2013, Hailee Williams underwent a further MRI scan of her lumbosacral spine which was reported with Grade III spondylolisthesis and severe L5 foraminal compression. She was seen on 13 June 2013 by Dr Cree who recorded bilateral L5 radiculopathy and partial cauda equina syndrome. Dr Cree was concerned about urinary incontinence worsening over the previous three months. In neurological examinations, he found a minimal weakness of extensor hallucis longus bilaterally, although the rest of the examination was normal. Dr Cree also noted some slight hypo-anaesthesia about the dorsum of the right foot and that the straight leg raise test was positive bilaterally.

20. [27]

    On 13 June 2013, Ms Williams underwent an L5/S1 spinal decompression and fusion. On 14 July 2013, Dr Cree considered that Ms Williams was developing secondary pain syndrome and referred her to a pain management specialist. On 27 November 2017, Ms Williams was reviewed by Dr Cree who noted that she continued to have ongoing discomfort in her lower back with pain intensity ranging from 6/10 to 10/10 and that she had syncopal episodes as a result of severe pain. He also noted her to have pain in both legs, the left being worse than the right. Dr Cree suggested that enlargement of lumbar foraminal dimensions may alleviate her legs symptoms.

21. [28]

    On 19 February 2018, Ms Williams was reviewed by Dr Cree and he suggested a further surgical decompression to enlarge the narrowed foramina at L5/S1 for that purpose.

22. [29]

    On 13 March 2018, Hailee Williams was admitted to Westmead Private Hospital and underwent removal of lumbar L5 instrumentation and resection of the inferior pedicle walls to create more room for L5 nerve roots. However, she continued to experience low back and bilateral leg pain.

23. [30]

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

Hailee Williams

1. [31]

   Ms Williams gave evidence in the form of statements dated 1 August 2019 and 19 May 2020, upon which she was extensively cross-examined. Ms Williams acknowledged that she recalled some things very clearly but that she had only a vague recollection of others. For the purpose of making her statements, Ms Williams had been shown the clinical records of hospitals in which she had been treated in order to refresh her memory about the dates and times of various consultations with doctors. Ms Williams stated in terms that her statement is based on her memory of what happened at each of her appointments or admissions or presentations to hospital but that there are many matters that she cannot now recall.

2. [32]

   Ms Williams recalled her first appointment with Dr Stening on 20 June 2012. She was at that time taking daily Voltaren and Panadol for her back and hip pain. Her mother attended the consultation and she communicated with Dr Stening unless he spoke directly to Ms Williams. Her statement contained the following paragraphs:

3. [33]

   Ms Williams later described her second consultation with Dr Stening later that year as follows:

4. [34]

   Ms Williams said that she was never given advice by any doctor or physiotherapist from June 2012 to June 2013 that she had spondylosis or spondylolisthesis. Ms Williams did not refer in her statements to her original consultation with Dr Stening on 21 November 2009.

Cross-examination of Hailee Williams

1. [35]

   Hailee Williams agreed, somewhat uncontroversially, that she did not have a perfect recollection of what was said or done at consultations back in 2011 and 2012. She agreed that in the period leading up to her surgery on 13 June 2013 that where there was an issue with her back at the time that was concerning her, she would have reported it to medical practitioners. She did not agree that in the period from March until June 2012 her hip pain was the more constant and serious problem for her or that back pain was only an occasional problem. She said, “I thought it was a constant problem”. However, Ms Williams went on to say this:

2. [36]

   After she started at Kindalin, Ms Williams said that her back pain was not intermittent but constant and “showed up constantly after activity”. She said “it wasn’t constant but would be flared up with my work”. Certain activities caused it to be worse. Ms Williams said this about what she told Dr Mutasim:

3. [37]

   She was then asked about her meeting with Dr Stening:

4. [38]

   Her evidence continued:

5. [39]

   Hailee Williams agreed that on 20 June 2012 Dr Stening said something to the effect of getting up and down from a squatting position and lifting kids was likely to aggravate her problem and that for the time being she should try to avoid those activities. Her evidence continued:

6. [40]

   On 2 July 2012, Dr Stening gave Ms Williams a medical certificate placing restrictions upon her duties at work for three months. By October 2012, it had expired. However, by then her back pain was much worse, much more severe and much more constant. It became worse and worse in the second half of 2012.

7. [41]

   Ms Williams saw Dr Stening for the second time on 3 December 2012. She said that she told Dr Stening that her bilateral hip pain and her back pain had got worse and was now constant and severe. She disagreed with the suggestion that neither she nor her mother said anything at all about back pain. She agreed that Dr Stening said words to the effect of “while I'm hoping you will grow out of your pain and it's due to apophysitis, I recommend you have an MRI scan of the left hip to see if there's something else going on to cause the pain”.

Meigan Williams

1. [42]

   Meigan Williams is Hailee Williams’ mother. She gave evidence in the form of a statement dated 2 August 2019. Meigan Williams indicated that she had been shown the clinical records of the medical practitioners she has attended with her daughter about her hip and back pain and the clinical records of hospitals in which she has been treated in order to refresh her memory about dates and times of various relevant consultations.

2. [43]

   Meigan Williams said that Hailee Williams started complaining of hip pain in 2009. She recalled taking her daughter to a general practitioner and being given a referral to Dr Stening. Meigan Williams said that she recalled Dr Stening “making a diagnosis” but does not remember what it was. She recalled that Dr Stening did not offer any treatments. Meigan Williams recalled that Hailee Williams complained to her of lower back ache towards the end of 2011 following her discharge from hospital for an unrelated condition. Sometime later she consulted Dr Mutasim who referred Hailee to Dr Stening for tenderness over her hip and the lumbar L4-5 region.

3. [44]

   Hailee Williams was X-rayed at the Castlereagh Imaging at Penrith on 24 May 2012. They both attended Dr Stening’s rooms on 20 June 2012 and took the X-ray with them. Meigan Williams said this:

4. [45]

   About a week later, Hailee Williams and her mother returned to Dr Stening for the cortisone injection into Hailee’s “front left hip”. They were told by Dr Stening to come back in six months if the pain persists.

5. [46]

   Hailee Williams and her mother returned to see Dr Stening on 3 December 2012. Meigan Williams said this:

6. [47]

   In about mid-December 2012, Meigan Williams contacted Dr Stening’s rooms regarding Hailee’s MRI results. Dr Stening called back later. She described the conversation as follows:

7. [48]

   Meigan Williams said that Dr Stening gave her no further advice about Hailee’s condition or signs of deterioration. Meigan Williams did not see Dr Stening again in December 2012 and had no further contact with him until February 2013.

8. [49]

   Meigan Williams said that on 13 June 2013, Dr Cree told her that Hailee’s condition was “really a medical emergency” and that she could be rendered a paraplegic “within a matter of weeks” if she were not operated upon soon. Hailee was shortly thereafter taken to theatre for a lumbar spinal fusion and bone graft.

Cross-examination of Meigan Williams

1. [50]

   Meigan Williams was asked about her daughter’s consultation with Dr Mutasim. She was not prepared to accept the possibility that when she saw him with Hailee initially and described why they were there that she mentioned only hip pain but not back pain. Nor was she prepared to accept the possibility that in that consultation on 21 May 2012, back pain only came up for discussion at the end of the consultation after the examination of Hailee had been performed. She had it firmly in her mind at that time that Hailee had problems in her hips as well as her back.

2. [51]

   With reference to the consultation with Dr Stening on 20 June 2012, Meigan Williams disagreed with the proposition that she did not describe to Dr Stening that Hailee was having any back pain. She reaffirmed the version of what occurred as described by her in paragraph 69 of her statement. She also disagreed that Dr Stening said that it looked like her daughter had suffered a recurrence of the condition that she had back in 2009. Meigan Williams recalled discussion about a cortisone injection but “absolutely disagreed” with the suggestion that Dr Stening said that getting up and down from the squatting position and lifting kids was likely to aggravate Hailee’s problem or for the time being she should try to avoid those activities.

3. [52]

   Meigan Williams also disagreed that during the second half of 2012 her daughter’s main problem was her hip. Her hip pain was a constant problem and her back pain was intermittent. She said, “Hailee had good and bad days during that period of time, with both her hip and her back pain.” She disagreed that Hailee’s back was not a significant problem for her in the second half of 2012.

4. [53]

   Paragraph 64 of her statement is in the following terms:

5. [54]

   Meigan Williams was taken to that paragraph in cross-examination. Her evidence was as follows:

6. [55]

   The fact that the referral dealt with Hailee Williams’ hips and not her back was then further explored:

7. [56]

   Finally, on this topic, Meigan Williams gave this evidence:

Dr Fraser

1. [57]

   At the commencement of the hearing, Dr Fraser made certain admissions. These were described in detail in Mr Downing’s opening remarks. Some of what he said was to the following effect.

2. [58]

   Even though the X-rays that Dr Fraser was asked to interpret and report on were not X-rays of Hailee Williams’ lumbosacral spine, but were X-rays of her hips and pelvis, he accepts serendipitously that they revealed a right sided pars defect that he failed to see or to report upon. Dr Fraser accepts that that amounts to a breach of duty: it should have been identified at the time and further X-rays of the lumbosacral spine should have been recommended. Dr Mutasim took a history from Hailee Williams on 21 May 2012 of hip pain as well as back pain but in his referral letter to Dr Fraser did not seek imaging of her lumbosacral spine. His request was limited to her hips and pelvis. Dr Fraser’s report to Dr Mutasim dated 24 May 2012 was as follows:

3. [59]

   Nor did Dr Mutasim make any reference at all to back pain in the letter that was sent to Dr Stening. There is no agreement about Hailee Williams’ precise presentation to Dr Mutasim or whether it was limited to her hips.

4. [60]

   Dr Fraser also accepts, consistently with his admission, that if further specific X-ray imaging of the lumbosacral spine had been done, it would have led, in either June or December 2012, to a diagnosis of spondylolisthesis. There is considerable disagreement among the experts as to the precise grade of that spondylolisthesis, in part because there was no lumbosacral X-ray, CT scan or MRI performed at the time.

5. [61]

   Dr Fraser’s concession was appropriately in line with his evidentiary statement dated 5 August 2019, portion of which was as follows:

6. [62]

   It was in these circumstances that Dr Fraser’s cross-examination was limited to the matters that are now considered.

Cross-examination of Dr Fraser

1. [63]

   Dr Fraser gave the following evidence:

2. [64]

   The cross-examination of Dr Fraser was necessarily limited having regard to his admission of breach of duty and his associated acceptance that if further specific X-ray imaging of the lumbosacral spine had been done, it would have led, in either June or December 2012, to a diagnosis of spondylolisthesis.

Conclusions concerning Dr Fraser’s liability

1. [65]

   Dr Fraser’s failure to report the existence of a pars defect in his 24 May 2012 report misled Dr Stening. His evidence about this, effectively mirrored in interrogatories administered by Hailee Williams and answered by Dr Stening on 31 October 2016, is set forth at paragraph 139 of his evidentiary statement as follows:

2. [66]

   In this respect, Hailee Williams relies upon Dr Stening’s evidence in support of her case against Dr Fraser to establish that Dr Fraser’s admitted breach caused her loss as the result of the way that it misled her then treating orthopaedic specialist. Dr Stening was understandably not cross-examined to suggest that his evidence in this regard was subject to challenge. Indeed, as Hailee Williams’ submissions emphasise, Dr Stening went further in his evidence to indicate that he would also have recommended core strengthening exercises, a suggestion that accords with other expert evidence in these proceedings.

3. [67]

   Dr Stening relied on the X-ray report from Dr Fraser and, although Dr Stening subsequently provided Hailee Williams with a medical certificate for restricted work duties, he did not immediately proceed to arrange for or offer alternative conservative, non-operative clinical management in the way that the experts agree would have been appropriate in mid-2012. Hailee Williams was thereafter left in a vulnerable position with an undiagnosed spondylosis or spondylolisthesis that exposed her to a risk of harm if left untreated. Her case against Dr Fraser is that if he had identified and reported on the pars defect in June 2012, that would have led to further inquiries which, in turn, would have revealed the state of Hailee Williams’ spondylolisthesis.

4. [68]

   Dr Fraser denied that his alleged negligence was a necessary condition of the occurrence of Hailee Williams’ harm so that nothing he did or failed to do caused her loss as a matter of fact: s 5D(1)(a) of the Civil Liability Act 2002. Moreover, he denied pursuant to s 5D(1)(b) of the Act that it is appropriate for the scope of his liability to extend to the harm which Hailee Williams alleges she suffered.

5. [69]

   Breach of duty having been admitted by Dr Fraser, it is convenient to defer consideration of the s 5D issues that relate to him, and the question of damages, if relevant, to later in these reasons.

Dr Stening

1. [70]

   A significant contest between Hailee Williams and Dr Stening is the question of whether Dr Stening was ever provided with a history from Ms Williams’ general practitioner Dr Mutasim that included a reference to low back pain. An associated, and even more significant, contest concerns whether Hailee Williams or her mother ever complained of back pain to him or otherwise drew it to his attention during any consultations with him.

2. [71]

   Dr Mutasim referred Hailee Williams to Dr Stening on 3 June 2012. His letter of that date to Dr Stening relevantly says this:

3. [72]

   Following his consultation with Hailee Williams on 20 June 2012, Dr Stening wrote to Dr Mutasim as follows:

4. [73]

   The terms of that letter significantly framed Dr Stening’s evidence-in-chief. However, his cross-examination was largely informed by a different version of the facts upon which Hailee Williams relies.

5. [74]

   Dr Stening administered a cortisone injection two days later. He reported to Dr Mutasim by letter dated 22 June 2012 as follows:

6. [75]

   Dr Stening’s statements of evidence are dated 15 August 2019 and 29 July 2019. It becomes necessary, despite its length, to reproduce a large portion of his first statement, relevantly as follows:

7. [76]

   Dr Stening’s letter reporting to Dr Mutasim on 3 December 2012 is in these terms:

8. [77]

   Hailee Williams underwent the MRI scan foreshadowed in that letter on 12 December 2012. Dr Stephen Morris reported the results to Dr Stening as follows:

Cross-examination of Dr Stening

1. [78]

   Dr Stening was asked about Hailee Williams’ later detected pars defect:

2. [79]

   That evidence was followed shortly after with these questions and answers:

3. [80]

   Dr Stening agreed that if he had been told about the pars defect, it was the very information that he would have included in his letter to Dr Mutasim on 20 June 2012.

4. [81]

   Dr Stening was then cross-examined on the following important topic:

5. [82]

   Dr Stening agreed with the following matters upon which Hailee Williams relies:

6. [83]

   It was part of Hailee Williams’ case that she had demonstrated the location of her back pain for Dr Stening. He was asked about that:

7. [84]

   Dr Stening relied upon the fact that it would have concerned him as support for his total absence of any recollection of it occurring. He insisted that if Hailee Williams had complained of pain in her back, and given a demonstration of the type she described, he “would have undertaken a completely different medical assessment”.

8. [85]

   Dr Stening not unreasonably had little, if any, recollection of the details of his first consultation with Hailee Williams and her mother to which they both referred in their evidence. It is apparent that Dr Stening was reliant upon the terms of Dr Mutasim’s referral for much of what he could recall. I sought to clarify that position by asking him the following question in those circumstances:

9. [86]

   With further reference to the specifics of any possible physical examination he might have conducted, Dr Stening said this:

10. [87]

    Dr Stening agreed that if he had come to a view that Hailee Williams had no back pathology and he had been looking for it, it is improbable that he would not have referred to it. That is because it would have been an important positive finding upon which to report to the referring doctor.

11. [88]

    Dr Stening agreed that there was an inconsistency between the restrictions placed upon Hailee Williams in the medical certificate for restricted duties that he later provided and the terms of his letter to Dr Mutasim:

12. [89]

    Dr Stening agreed that Hailee Williams needed to get away from repetitively lifting children.

The statement of claim

1. [90]

   It is instructive at this point to consider in some detail the way in which Hailee Williams frames her case against each defendant. As will already be apparent, the essential background to her claims is that Dr Mutasim found her to be “tender over the (L) ASIS and L4-5” and that he gave her a referral to undergo a pelvis and hip X-ray and an ultrasound of both hips. Dr Fraser was provided with a history of lower lumbar pain by Dr Mutasim in his letter of referral for X-rays. The amended statement of claim then contains the following allegations:

   1. (1)

      Dr Fraser knew that young men and women with lower lumbar pain in the age group from late teens to early twenties can be cause by spondylosis and spondylolisthesis and that such conditions can be treated conservatively so that permanent damage is avoided.

   2. (2)

      Dr Fraser did not provide the history of lower lumbar pain provided to him by Dr Mutasim in the 24 May 2012 X-ray report or in the 31 May 2012 ultrasound report.

   3. (3)

      Dr Fraser knew or ought to have known that the history of lower lumbar pain in addition to hip pain in a 17-year old girl may be important clinical information to any doctor or specialist reading the X-ray report or the ultrasound report.

   4. (4)

      Had that history been provided, on the balance of probabilities Dr Stening would have ordered further studies and may, or would on the balance of probabilities, have identified the pars defect, spondylitis and spondylolisthesis.

   5. (5)

      Dr Stening would in those circumstances probably have advised Hailee Williams to give up any exercise or work that involved shock to the spine, bending or repeated heavy lifting or twisting and to give up her work at a childcare centre.

2. [91]

   Hailee Williams alleges against Dr Stening that he owed her a duty of care on 20 June 2012 and thereafter to exercise reasonable skill and care in reviewing and interpreting her pelvis and hip radiological images, to investigate her right sided pars defect, spondylolytic defects and progressive spondylolisthesis and to investigate her lumbar spinal pain. Dr Stening admits that he owed a duty to exercise reasonable care and skill in managing, advising and treating her but does not otherwise admit the allegation.

3. [92]

   Dr Stening denies that he was negligent in any way at all. That denial necessarily includes a denial of each and every allegation of negligence pleaded against him at paragraph 97 of the second further amended statement of claim as follows:

4. [93]

   It was accepted by counsel for Dr Stening that Hailee Williams also makes, and that he must meet, an allegation that even if she said nothing to him on 20 June 2012 about her back, and even without a correct report from Dr Fraser identifying her pars defect, a complaint of hip pain to Dr Stening by her or a referral about hip pain from Dr Mutasim should have led him to examine her back.

Plaintiff’s witnesses – truthful but unreliable?

1. [94]

   There is no substantial factual dispute between Hailee Williams and Dr Fraser. However, there is a significant factual dispute between her and Dr Stening. Dr Stening does not contend that Hailee Williams is lying in recounting her version of what occurred in consultations with him. Indeed, the defendants’ joint submission was that I should accept that Hailee Williams was attempting to give evidence of her recollection of key events honestly and to the best of her ability. However, the defendants, but Dr Stening in particular, maintain that Hailee Williams’ recollection is poor and should be discounted in favour of his recollection, aided by or derived from his written recording of what occurred there. The principal area of dispute is whether Dr Stening was told by either Hailee Williams or her mother that she was experiencing back pain.

2. [95]

   Dr Stening submitted that there were “multiple bases upon which it can be demonstrated that [Hailee Williams’] recollection is poor so that the Court ought [to] exercise caution in accepting what she now claims to recall having occurred”. Those submissions are as follows.

3. [96]

   First, Hailee Williams acknowledged that the first occasion on which she tried to reduce her recollection of her attendances on Dr Stening to writing was when she prepared her 1 August 2019 statement. That was obviously many years after the “key attendances” to which it refers.

4. [97]

   Secondly, while Hailee Williams “vacillated to a degree as to the quality of her recollection”, she candidly conceded that her recollection of what occurred on 20 June 2012 and 3 December 2012 was limited. For example:

5. [98]

   Thirdly, even though Hailee Williams accepted that her recollection of the various attendances on Dr Stening had been refreshed by reviewing his records, he submitted that it was “strange” that she could no longer recall any of the relevant records she reviewed. The defendants submitted in those circumstances that “there must be a real risk that [her] actual recollection has been inadvertently contaminated with information gleaned from reviewing parts of the relevant treating records”.

6. [99]

   Fourthly, and said to be allied to the previous point, the defendants submitted that “it is well settled that…where determination of critical issues of fact will involve an evaluation of oral evidence of disputed events, the process of fact finding should be informed as far as possible ‘on the basis of contemporary materials, objectively established facts and the apparent logic of events’”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31]. The defendants referred to what was said by Lord Pearce in Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 at 431 as follows:

7. [100]

   Fifthly, the defendants submitted that some aspects of Hailee Williams’ recollection of what occurred on 20 June 2012 and 3 December 2012 “are patently wrong”. For example, Hailee Williams has no recollection of lying in the prone position. However, Dr Stening’s report to Dr Mutasim on 20 June 2012 explicitly refers to the fact that he performed the Ely test which can only be done in that position.

8. [101]

   Sixthly, there is a conspicuous absence in the treating records of other health professionals of Hailee Williams reporting or complaining of back pain. The defendants’ submission was that “it is [therefore] far more likely that this reflects the fact that [Hailee Williams] is wrong as to what she was actually experiencing and complaining of at the time, as opposed to the alternative conclusion, which would be that multiple, independent, practitioners have made a consistent error in recording complaints of hip pain but not back pain”.

9. [102]

   This proposition was supported by some examples. Hailee Williams’ evidence was that her back pain began in about May 2012, which was a couple of months after she began full-time work at Kindalin. This became more severe, more constant and more debilitating in the second half of 2012. The defendants’ submissions emphasised that while Hailee Williams gave evidence that she would have told the general practitioners she was seeing about what was troubling her, there is no reference at all to back pain in the Hawkesbury Valley Practice notes from 30 August 2012 through to 15 November 2012, although there are multiple references to hip pain.

10. [103]

    The defendants also submitted that Hailee Williams did not complain of back pain to Dr Maria Jelinek who she saw on 5 and 15 November 2012, when she complained only of problems with tonsillitis, right hip pain and tremors in her hand. Even though the entries are long, none contains any reference to back pain.

11. [104]

    Hailee Williams did complain of back pain to Dr Mutasim. On 21 May 2012, he recorded a history of pain in her hips and back that had arisen through her work. Dr Stening submitted that “the structure of his notes strongly suggests that what [she] initially reported to him…was pain in her left and right hip and [that] it was only through specific examination of [her] back that he identified some tenderness over the L4-5 region”. Dr Mutasim recorded no complaint of back pain at her consultation with him on 16 August 2012.

12. [105]

    Dr Fraser and Dr Stening summarised these points with the following written submission:

13. [106]

    The defendants made the same submissions with respect to Meigan Williams. While she was not dishonest, they submitted that her evidence was tainted by hindsight and of poor quality. The defendants referred to the following matters as examples of that.

14. [107]

    Meigan Williams’ evidence was that Dr Stening did not examine her daughter on 20 June 2012. The evidence otherwise indicates that that is wrong.

15. [108]

    Secondly, Meigan Williams disputed that when he injected Hailee Williams’ left hip with Celestone Chronodose, he said that he would inject the other side if Hailee got a good response from the procedure. Dr Stening submitted that it was “exceedingly likely that he would have spoken those words”, given the terms of his 22 June 2012 letter to Dr Mutasim, and that Meigan Williams “must be wrong in her recollection”.

16. [109]

    Thirdly, Meigan Williams said that she recalled seeing Dr Daniel Frost in about November 2012 in respect of her daughter’s ongoing hip and back ache. However, the Hawkesbury Family Medical Practice records demonstrate that Hailee Williams did not see Dr Frost at all in November 2012.

17. [110]

    Finally, the defendants submitted that “there were some bizarre elements to Meigan Williams’ evidence about certain matters”. For example, she said in her evidentiary statement and oral evidence that it was, in effect, her usual practice to read the various radiology referrals. Meigan Williams later changed that evidence to suggest that her usual practice was instead to read the X-ray or radiology reports. The defendants submitted that her evidence about that “made no sense” and was inconsistent.

Plaintiff’s response – truthful and reliable

1. [111]

   Hailee Williams submitted that she has not sought to set out the terms of any conversation that she could not remember. She admitted that she had no recollection of some things that must have happened in her consultations with Dr Stening. She recognised the difference between memory and reconstruction. These things “stood to her credit”.

2. [112]

   Additionally, there were differences in the recollections of Hailee Williams and her mother about the same events. This indicated that there was “no real pollution of memory arising from discussions between them”.

3. [113]

   Meigan Williams gave evidence that she advised Dr Stening that “Hailee has had niggling hip and back pain on and off for a couple of years”. Hailee Williams submitted that that was consistent with the pre-existing medical evidence. Meigan Williams’ description is significantly understated. Meigan Williams was cross-examined about it:

4. [114]

   Hailee Williams emphasised that she did recall some things that her mother also remembered. Significant among those was the suggestion that Hailee Williams performed a demonstration to assist Dr Stening: she stood up and pointed to where her pain was. She gave evidence of the demonstration and was not cross-examined about it. She submitted that, even though her mother was cross-examined about it, the failure to cross-examine her on this issue was “critical to the finding of breach against Dr Stening”.

5. [115]

   Hailee Williams made the following written submission in this context:

6. [116]

   Hailee Williams submitted that it is “critically important with lay witnesses to challenge their account in cross-examination…as a matter of procedural fairness which gives rise to the fundamental rule of advocacy”: see Browne v Dunn (1893) 6 R 67; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11. She submitted that the High Court decision in Kuhl means that the defendants could not rely on cases like Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [42] to the effect that cross-examination may not be the only way in which to guarantee procedural fairness. Hailee Williams submitted that the obligation to cross-examine a witness on a critical topic cannot be displaced by particular practices that may have developed. Specifically, it was not enough for Dr Stening to rely upon his usual practice, to the effect that he would have recorded matters differently in his report to Dr Mutasim if Hailee Williams had demonstrated back pain as she alleges, to counter the evidence from her that she did so.

7. [117]

   Usual practice evidence may be relied upon to base findings as to whether things were done or said: see Morris v Hanley (2003) 173 FLR 83; [2003] NSWSC 42 at [70]; Bergman v Haertsch [2000] NSWSC 528 at [271]; Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721. Dr Stening conceded that he could not recall the detail of his consultations with Hailee Williams and relied upon the contents of his letter to Dr Mutasim and his usual practice:

8. [118]

   I have earlier recorded at that Dr Stening uncontroversially conceded that he did not have any recollection of anything other than what was outlined in his letter to Dr Mutasim. The letter did not record a complaint of back pain.

9. [119]

   Dr Stening was cross-examined about photographs tendered by Hailee Williams that depicted the type of demonstration she said occurred at the 20 June 2012 consultation. He said that if she had pointed to her back it would have been “a red flag”. He relied on his letter to Dr Mutasim to suggest it did not happen and that such a demonstration would have led to a completely different medical assessment.

10. [120]

    It does not seem to me that a failure specifically to cross-examine Hailee Williams about the demonstration she says she performed was a denial of procedural fairness that offended the rule in Browne v Dunn. It is clear from a comparison of their respective evidentiary statements that, well before the time that Hailee Williams and Dr Stening came to be cross-examined, there was a factual dispute about the matter. Hailee Williams appended photographs depicting the type of demonstration she said took place. Dr Stening dealt with it in his statement at some length. It could hardly be suggested that Dr Stening is now purporting to rely upon his general practice to gainsay Hailee Williams’ evidence about it where she had not already been given an appropriate opportunity to confront or to deal with Dr Stening’s evidence about it. Significantly, Dr Stening does not say from his recollection of the consultation that the demonstration did not occur. There seems to me therefore to have been little point in confronting Hailee Williams with a suggestion that her memory of a demonstration was flawed when the provenance of the contrary proposition merely derived from Dr Stening’s recollection which itself rose no higher than his assumptions about usual practice.

11. [121]

    The question remains about whether Dr Stening’s usual practice evidence is decisive or even persuasive. Hailee Williams accepted that usual practice may be brought to the aid of a doctor when assessing his or her evidence but that the issue depended largely on the circumstances. However, she submitted that the proof of the existence of Dr Stening’s usual practice does not resolve the dispute favourably to him on the question of whether the demonstration took place in fact. In effect, Dr Stening’s usual practice argument was limited to what was or was not in his letter to Dr Mutasim, which is quite different to reliance upon a practice of only asking 17 year-old girls who present with a complaint of back pain to demonstrate where the pain was experienced.

12. [122]

    Dr Stening’s argument, that because there was no reference to back pain in his letter to Dr Mutasim there could have been no reference to back pain during the 20 June 2012 consultation, is obviously circular. It does not take account of the possibility that he failed in this case to conform to his usual practice for some reason. Hailee Williams suggests that one reason may have been that Dr Stening was under time pressure and did not dictate his report immediately before seeing other patients. He may possibly have dictated the letter to Dr Mutasim having lost his notes or made an incomplete recording of what occurred at the consultation. He may have failed to record a complaint of back pain even if it had been made to him. Hailee Williams submitted that the administrative processes in Dr Stening’s surgery give rise to the possibility of note-taking error, dictation error or even transcription error.

Disposition of the 20 June 2012 consultation dispute

1. [123]

   In my opinion, a combination of factors points to the conclusion that Dr Stening was not told of back pain at or before the 20 June 2012 consultation with Hailee Williams and her mother.

2. [124]

   First, neither Dr Mutasim’s request to Dr Fraser for X-rays or imaging, with whose report dated 24 May 2012 headed “PELVIS AND HIPS” Dr Stening was provided, nor Dr Mutasim’s 3 June 2012 letter of referral to Dr Stening, makes any mention of back pain despite Dr Mutasim having taken a history on 21 May 2012 that included back pain. Dr Mutasim is not a defendant.

3. [125]

   Secondly, Dr Stening did not refer to back pain at all in his letter reporting to Dr Mutasim. That of itself is not conclusive of whether Hailee Williams or her mother referred to back pain at the 20 June 2012 consultation. Its significance lies primarily in the fact that the letter from Dr Stening reporting to Dr Mutasim directs attention to the very matters that Dr Mutasim referred to in his letter to Dr Stening.

4. [126]

   Thirdly, Dr Stening recommended, and Hailee Williams underwent, a steroid injection into her anterior superior iliac spine, but did not receive treatment related to back pain. Dr Stening carried out this procedure and reported upon it to Dr Mutasim. Meigan Williams attended with her daughter on the occasion of this procedure for injection into the hip.

5. [127]

   Fourthly, Dr Mutasim did not subsequently raise with Dr Stening after he received either his 20 June 2012 letter reporting upon the consultation, or his 22 June 2012 letter reporting upon the steroid injection, that there was no reference in either of them to back pain or, in relation to the latter, that it could not have been appropriate for the treatment of a complaint of back pain. Dr Stening’s letter after the injection made specific reference to the alleviation of symptoms, which presumably Dr Mutasim would have questioned if he had not referred a patient for treatment of hip pain.

6. [128]

   Fifthly, Dr Stening’s recommendation for Hailee Williams to refrain from certain activities such as sports and to move from her (then) current duties involving repetitive lifting of children does not point only or even necessarily to the existence of a back problem. The recommendation was not uniquely indicative of the existence of a back pathology but was consistent with the protection of her diagnosed condition of iliac apophysitis. In any event, Dr Stening was not giving a warning with respect to the conservative management of a back condition and there is no suggestion that his warning was inadequate if it related to the management of Hailee Williams’ anterior superior iliac spine.

7. [129]

   In my view, Hailee Williams and her mother are mistaken in their recollections that Dr Stening was told or shown anything by either of them to indicate that Hailee Williams had or was concerned about or was complaining of any pain or problem with her back. The evidence that demonstrates that Hailee Williams was seeing Dr Stening for a problem with her hip, which evidence does not rely on memory or recollection, but instead derives from contemporaneously created documents, is difficult to discount as unpersuasive: see, for example, Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 549. Moreover, the total absence of any critical response to these documents that one might have expected if they were incorrect is telling. That includes not only Dr Mutasim but also Meigan Williams whose involvement in her daughter’s care was commendably close and constant. It is improbable that she would not have picked up on the fact that the medical professionals were all talking about hips if the issue was pain in the low back.

8. [130]

   Although Hailee Williams’ reliance upon the events surrounding the 3 December 2012 consultation with Dr Stening is different, the objective facts at that time similarly also in my view support the conclusion that, despite the statements and evidence of Hailee Williams and her mother about that consultation, she was still only complaining of hip and pelvic pain but not back pain. As with the documents produced in June 2012, the letter dated 3 December 2012 from Dr Stening reporting to Dr Mutasim, and the content of the MRI report from Dr Morris dated 12 December 2012, are concerned solely with her hips and not with her low back.

9. [131]

   Penultimately, and significantly in my view, Dr Stening wrote to Meigan Williams directly on 18 February 2013. Appreciating that she has no medical training and that, to some extent, the letter is couched in technical language, its terms are nonetheless instructive:

10. [132]

    Further, and also significantly, Dr Stening provided Hailee Williams with a medical certificate dated 18 February 2013 at the request of her mother, presumably in support of the cancellation of her planned trekking trip. It said this:

11. [133]

    Finally, apparently on the recommendation of Dr Stening, Hailee Williams saw Mr Craig Seabury in January 2013, who wrote to Dr Stening in that month in the following relevant terms:

12. [134]

    It is apparent from Mr Seabury’s own examination of Hailee Williams that she was complaining to him of bilateral hip pain but not back pain. His examination notes record that he was dealing with such complaints but not others. This is consistent with what I consider to have been the concerns and complaints to which Hailee Williams directed Dr Stening during 2012.

13. [135]

    Should Dr Stening in any event have been alert somehow to the possibility that Hailee Williams had a back problem that he should have investigated even if I find that she did not disclose it and that Dr Mutasim’s referral did not mention it? The suggestion appears to be that a young woman of Hailee Williams’ age in June 2012 presenting with a complaint of bilateral hip pain should somehow also have been examined and investigated with a view to discovering or teasing out the existence of a lumbar or other back pathology.

14. [136]

    In my opinion, this issue can be easily disposed of in the context of a consideration of the anterior question raised under s 5O of the Act of whether or not Dr Stening has established that he acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. That is because I have found that Hailee Williams only complained of pelvic and hip pain and did not also complain of lower back pain.

15. [137]

    The orthopaedic experts in their joint report agreed that where there were no complaints of back pain made by Hailee Williams on open ended questioning, and Dr Stening properly inquired as to the duration of the pain, its precipitants and characteristics, it amounted to competent professional practice to examine her as he did on 20 June 2012 concentrating on her hips and to arrive at a diagnosis of anterior superior iliac apophysitis.

16. [138]

    Question 8 of the joint report of Drs Sekel and Walker dated 9 March 2018 and its relevant answer are as follows:

17. [139]

    Question 6 had raised a similarly bifurcated issue as to the adequacy of Dr Stening’s examination of Hailee Williams. It was agreed that if she had only complained of pelvic and hip pain, his examination of her was adequate. For example, De Sekel said that as at 20 June 2012, with a complaint of pelvic and hip pain alone, it would be reasonable to just look at that area on examination. Both Dr Sekel and Dr Walker agreed that the position in each case would be different if Hailee Williams had complained of lower back pain that Dr Stening overlooked or essentially ignored. In other words, neither doctor would criticise Dr Stening’s conduct in their joint report responses if no complaint of back pain had been made to him in either June or December 2012.

18. [140]

    This issue became a little more complex following cross-examination of these experts. Dr Walker said this:

19. [141]

    Dr Sekel had earlier given this evidence:

20. [142]

    Despite the agreed answers in the joint report, Mr Morris attempted in his questioning of these doctors to suggest that with a complaint of only hip or pelvic pain, and without a complaint of back pain, it would amount to less than competent practice, or a breach of duty, not to ask Hailee Williams about back as well. Counsel for Dr Stening submitted that any suggestion to that effect offended common sense. Having regard to the nature of the inquiry required by s 5O, I take that submission to be that any opinion that a doctor should go looking for something about which a patient did not complain, or to which the doctor’s attention had not been directed by a letter of referral or similar, should be considered by me to be irrational: s 5O(2) of the Act.

21. [143]

    However, the determination of this question was made easier by the following evidence given by the doctors:

22. [144]

    I am satisfied having regard to the evidence that Dr Stening did not act otherwise than in accordance with then prevailing professional practice by not inquiring of Hailee Williams, presenting with a complaint of bilateral hip or pelvic pain in June or December 2012, whether she suffered from low back pain in the absence of a specific complaint from her about it. In accordance with recent authority, it becomes unnecessary to consider the different question of whether such a failure would in similar circumstances also have amounted to a breach of Dr Stening’s duty to take proper care in the provision of medical treatment.

3 December 2012 consultation

1. [145]

   Hailee Williams does not contend that anything that occurred at the 3 December 2012 consultation gives rise to any fresh allegations of negligence by Dr Stening. Her submissions say that “the primary case against Dr Stening rests with the 20 June 2012 consultation” and that the “consultation of 3 December 2012 was another opportunity for the back issue to have been discovered and acted on, but it was not”. Her submissions go on to say that “in this regard, the breach of 20 June 2012 subsumes what occurred later on 3 December 2012 in terms of causation”.

2. [146]

   Hailee Williams maintains that her back condition remained undiagnosed at this consultation. That was said to be “in large part” because Dr Fraser did not disclose the existence of the pars defect on the radiology report that was provided to, and relied upon by, Dr Stening.

3. [147]

   Whatever these submissions intended to convey by the use of the expression “in large part”, suggesting or inferring that Dr Stening also committed some additional discrete act of negligence on 3 December 2012, it is not reflected in the particulars of negligence alleged against him in the current pleading. I take this particular submission to mean, in the light of the pleadings, that if Dr Stening did not breach his duty of care to Hailee Williams in June 2012, he did not do so thereafter. The particulars of negligence at paragraph 97 (a) – (k) isolate the relevant date as 20 June 2012. To the extent that the particulars at paragraph 97(l)-(u) allege failures by Dr Stening thereafter, they are all founded on the proposition that Hailee Williams was complaining to Dr Stening of lower back pain, a proposition which I have rejected. Specifically, I do not accept that either Hailee Williams or her mother reported or demonstrated back pain during the 3 December 2012 appointment with Dr Stening.

Conclusions – breach of duty

1. [148]

   Dr Fraser’s admitted breach of duty forecloses the need further to consider that issue with respect to him. The question of whether his breach of duty caused any loss to Hailee Williams is discussed below.

2. [149]

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

3. [150]

   In the result, there should be judgment for Dr Stening.

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

1. [151]

   Hailee Williams maintains that she has sustained loss and damage, in the sense that her condition deteriorated to its current state because she did not receive appropriate advice and conservative management after 24 May 2012. She claims further that both her pre-surgical condition and her post-surgical condition would have been entirely prevented if that treatment had been provided and that her damage has therefore been caused by Dr Fraser’s breach.

2. [152]

   Dr Fraser maintains that Hailee Williams’ problems are the unavoidable result of her congenital spinal condition which could not have been prevented by conservative management as she alleges. Dr Fraser also contends that surgery was in any event inevitable and that Hailee Williams’ current situation is a response to that surgery rather than a continuation and deterioration of her antecedent pre-surgical medical problems.

3. [153]

   In these circumstances, it becomes necessary to determine what her antecedent medical condition was immediately prior to surgery on 13 June 2013. It matters not for the purposes of this question whether that condition was or was not preventable by conservative management in the way she alleges: this is considered below.

4. [154]

   In my opinion, Hailee Williams’ condition in June 2013 was parlous. There is evidence to suggest that on or close to the day her surgery was performed, Hailee Williams was in a state of incipient neurological compromise with potentially catastrophic consequences, including paralysis, if not corrected.

5. [155]

   It is not in issue that Hailee Williams suffers from a chronic pain syndrome consisting of neuropathic and nociceptive pain with significant sensitisation of her nervous system as an aggravating factor. However, there is a divergence of views among experts as to whether that syndrome arose for the first time after surgery on 13 June 2013 or whether what she describes in submissions as “presurgical nerve insults” with developing radiculopathy, spinal lordosis, urinary incontinence and peripheral anaesthesia, among other things, were the prime cause, with later surgery no more than “the tipping point” in that process.

6. [156]

   Dr Fraser asserts that Hailee Williams suffers from what is called a failed back surgery syndrome, which is a group of conditions associated with persistent or recurrent low back pain, with or without sciatica, following spinal surgery. Dr Fraser relies upon material supporting the assertion that between 10 and 40 percent of all people with pre-existing lower back pain who undergo surgery will develop chronic pain in the spine and the limbs after a single spinal surgical procedure. Hailee Williams emphasises that such a statistic is no more than an uncontroversial recognition of the fact that somewhere between 60 and 90 percent of people recover.

7. [157]

   The evidence does not appear precisely to describe or explain the mechanism for the development of Hailee Williams’ chronic pain syndrome other than by reference to her pre-operative and post-operative conditions. Dr Cree was the surgeon who operated on Hailee Williams. His unchallenged evidence was that she had pre-operative urinary incontinence, saddle anaesthesia and diminished tone consistent with “full-blown” cauda equina-type syndrome on 13 June 2013, although not consistent with an MRI scan demonstrating L2-L3 compression.

8. [158]

   This issue was discussed at considerable length in the evidence of experts in joint session on 26 June 2020. It revolved in large part around the question of whether Hailee Williams had a cauda equina syndrome and whether or not that was in effect an essential indicator for surgery in her case.

9. [159]

   Dr Sekel agreed that Hailee Williams did not have cauda equina syndrome. Dr Sutton’s view was as follows:

10. [160]

    Dr Biggs made the following point:

11. [161]

    Professor Dan contributed to the discussion on the issue of whether Hailee Williams’ signs were an indication for surgery. These were things such as kyphosis and loss of lumbar lordosis. He expressed this view:

12. [162]

    I take that opinion to be that Hailee Williams’ condition was such that at or around 13 June 2013 she was going to require surgery sooner or later, even if the urgency perceived by Dr Cree was overstated. However, the corollary of that eminent opinion is that at some point before 13 June 2013, she was suffering significantly from lower back problems that were causing distress that was sufficient for her then treating orthopaedic surgeon to consider that he could not safely postpone operating to relieve her symptoms.

13. [163]

    Associate Professor Boesel offered a very comprehensive and helpful opinion about the aetiology of Hailee Williams’ pain syndrome:

14. [164]

    However, as the experts agreed in the Joint Causation Report, those pre-existing vulnerabilities that occurred between February 2013 and June 2013 included lower back pain, radicular pain, loss of lumbar lordosis, peripheral anaesthesia, urinary incontinence, saddle anaesthesia and diminished anal tone. Dr Fisher was of the view that these pre-existing vulnerabilities materially contributed to Hailee Williams’ ultimate pain syndrome:

15. [165]

    I am unable to accept Associate Professor Boesel’s emphatic views that Hailee Williams’ pain syndrome was only caused by her surgery. The evidence in this case satisfies me that Hailee Williams continued to suffer from similar symptoms after her surgery to those she had unfortunately suffered before it, and which significantly supported the decision to operate upon her.

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

1. [166]

   As is apparent, Dr Fraser has conceded that he breached his duty in failing to identify Hailee Williams’ right sided pars defect and in failing to report to Dr Mutasim that she required further radiological imaging of her lumbosacral spine. I have already concluded, and Dr Fraser has acknowledged, that he breached his duty in those respects.

2. [167]

   Hailee Williams contends that her undiagnosed pars defect could and should have been managed conservatively with core strengthening exercises, restrictions on her work obligations and recreational pursuits and by avoiding strenuous activities entirely. She maintains that on the balance of probabilities, her spinal condition would have effectively resolved if treated in this way and that surgical intervention could and would have been entirely avoided or at least restricted.

3. [168]

   Hailee Williams’ submissions were as follows.

4. [169]

   The experts agree that had Hailee Williams’ pars defect, whether it be dysplastic or isthmic, been diagnosed in or before January 2013, she would have been treated conservatively with non-operative management. That conservative treatment would have involved physiotherapy, hydrotherapy, core strengthening exercises with advice to avoid lifting, weightlifting and any high impact exercises. She would also have been advised to avoid any hyperextension activities including kickboxing, gymnastics and bending over and lifting children. She would have been told to avoid spinal manipulation and/or spinal adjustments by chiropractors, osteopaths or her physiotherapist. Moreover, Hailee Williams would have been told to change her occupation from childcare to one that did not involve flexion, extension and lifting weights.

5. [170]

   The reason underpinning such advice relates to removing activities that traumatise the lumbar discs and precipitate spondylolysis or low Grade I spondylolisthesis progression or movement. Repetitive activities involving lumbar extension or flexion and lifting heavy weights aggravates the lumbar discs and can wear articulating surfaces of the L5 and S1 vertebrae, ultimately leading to compression of the intervertebral disc, disc degeneration and loss of disc height, crushing the lumbar L5 nerve causing radiculopathy and further spondylolisthesis slippage.

6. [171]

   The experts agree that symptoms of nerve irritation, such as shooting pains in the legs, leg cramps (including nerve irritation or referred back pain), pain below the knee and into the dorsum of the foot, lower limb pins and needles and lower limb paraesthesia are suggestive, particularly the latter, that the nerves are under pressure or duress.

7. [172]

   Dr O’Neill’s opinion was that sensory loss or sensory symptoms or weakness (including pins and needles and paraesthesia), indicates that the nerves are under serious compromise, and may lead to partially irreversible damage.

8. [173]

   Furthermore, there is agreement among the experts that had Hailee Williams’ pars defect/spondylolysis or low Grade I spondylolisthesis been identified, she would have been clinically assessed, a detailed history of her symptoms would have been obtained and arrangements would have been made for further radiological investigations, such as lateral X-rays and flexion extension views and MRI scans. The purpose of the further radiology and clinical assessment and monitoring is to identify the problem, the nature and extent of the pars defect (dysplastic or isthmic), spondylolysis or low Grade I spondylolisthesis and to monitor its progression (if any). The experts agree that Hailee Williams would in such circumstances have been reviewed every three months.

9. [174]

   The literature spanning several decades consistently reports on the mechanism likely to cause spondylolisthesis, the prescription of conservative management to treat it and the advice in favour of surgical intervention if the spondylolisthesis progresses to a symptomatic or disabling high grade (Grade III or above).

10. [175]

    The literature and the experts also agree that the incidence of spondylolysis can appear sometime after walking begins, implying that upright posture and bipedal position plays a significant role in its development. Its incidence increases from 4.4 per cent in children aged six years to 6 per cent by 18 years and remains stable at that rate and from that age throughout adulthood.

11. [176]

    The condition is observed in children and adolescents who have participated in sports that involve repetitive hyperextension of the trunk, such as gymnastics, weightlifting, swimming, wrestling, rowing, javelin throwing and cricket, thus making the condition symptomatic.

12. [177]

    For adolescents presenting with Grade I (0% - 25%) or Grade II (26% - 50%) isthmic spondylolisthesis (based on the Wiltse-Newman classification and Meyerding spondylolisthesis grading system), those who are treated conservatively experience resolution of their pain symptoms and stabilisation of their spondylolisthesis in over 80 percent of cases. Following conservative treatment, according to the literature, they return to normal activities of daily living, including sporting activities, and do not progress to surgery. Similarly, according to the literature, in adolescents presenting with Grade I or Grade II dysplastic spondylolisthesis and treated conservatively, 68 percent or more responded to conservative treatment and avoided surgical intervention. The literature further notes, and the experts agree, that the progression of spondylolisthesis after 20 years of age is much less likely to occur due to ossification of the growth plates (skeletal maturity) and the tightening (fibrosis) of the musculo-ligamentous tendons.

13. [178]

    Dr Sekel and Dr Drnda said that the conservative treatment regime is not only intended to avoid all activities of hyperextension and lifting but also to provide targeted core strengthening exercises, to allow the ligaments to mature and to permit the formation of osteophyte calcification around the damaged disc which stabilises the spine. Conservative management is designed to get past a developmental period where the patient has hyper-elastic musculo-ligamentous tendons which then develop during the transition to skeletal maturity.

14. [179]

    Professor Earwaker gave evidence that he has seen radiological images of people with Grade II dysplastic spondylolisthesis who were skeletally mature, whose dysplastic spondylolisthesis had stabilised without surgical intervention.

15. [180]

    The literature also indicates that the incidence of spondylolisthesis progression in the dysplastic type is approximately 32 per cent and in the isthmic type 4 per cent. Dr Biggs gave evidence about this which is referred to below.

16. [181]

    Dysplastic spondylolisthesis is associated with lumbosacral kyphosis, involving a trapezoidal L5 vertebra with hypoplastic transverse processes and sacral doming. The combination of the dysplastic anomaly juxtaposed with the sacral doming increases the potential of a rapid slip. Some experts suggested that sacral doming is indicative of inevitable progression leading to surgical intervention. Hailee Williams challenged that proposition, noting that it does not definitively lead to surgery. She maintained that there is controversy in the literature regarding whether the properties of the L5 vertebral body and the sacrum are predictive of slip progression.

17. [182]

    The experts agreed, directly or otherwise, that recurrent backwards and forwards movement of the L5 vertebra over the S1 vertebra can cause sacral doming and that the removal of repetitive lumbar extension and flexion movement, consistently with conservative management, reduces the force on the sacrum and thereby reduces sacral doming.

18. [183]

    In short, Hailee Williams submitted that she was a candidate for non-surgical conservative management, notwithstanding the nature and extent of her congenital condition in mid-2012.

19. [184]

    Dr Fraser contends on the contrary that the pars defect was such that it could never have been satisfactorily managed in this way and that it was inevitable that Hailee Williams would have had to submit to surgery of the type that she ultimately underwent.

20. [185]

    The process of assessing hypothetical causation was described by Hayne J in Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 at [113] thus:

21. [186]

    This analysis was reinforced by the High Court in Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 at [66] as follows:

22. [187]

    In Bolitho v City and Hackney Health Authority [1998] AC 232; [1997] UKHL 464, Lord Browne-Wilkinson said this:

23. [188]

    In the present case, Dr Fraser’s failure to observe or to report upon Hailee Williams’ pars defect on 24 May 2012 caused no immediate loss or damage to her. However, to the extent that Dr Stening and others relied upon the radiology report to treat her, and did so thereafter in a way that differed from what they would have done if they had known of the true anatomical position, any loss that Hailee Williams suffered as a result is on her case a loss that was caused by Dr Fraser’s breach of duty.

24. [189]

    Hailee Williams has submitted that Dr Mutasim and Dr Stening were reliant upon Dr Fraser’s report in the following ways:

    1. (1)

       In forming their clinical opinions.

    2. (2)

       In formulating clinical management plans.

    3. (3)

       In advising Hailee Williams about the serious nature of her condition and about the vocational and recreational activities she should avoid, and the rehabilitative steps she should take to minimise the risk of further injury.

25. [190]

    Hailee Williams submitted that Dr Fraser’s report was critical to Dr Stening’s decision about whether he had the necessary skills to manage her properly or whether she should be referred on for paediatric orthopaedic care with a sub-specialty in the treatment of paediatric spinal conditions. Dr Stening’s evidence was that if there had been complaints of pain in a different body part, especially if Hailee Williams were not responding to attempts to relieve the pain of which she complained to him, he would have referred her for an MRI scan:

26. [191]

    In the events that occurred, Dr Stening did not order further tests or other diagnostic assistance.

27. [192]

    Dr Fraser’s position on the issue of whether his breach of duty caused any loss or damage is that it did not, in the sense that the evidence on his account establishes on the balance of probabilities that Hailee Williams would have come to surgery on or about 13 June 2013, as she did, whether or not he had breached his duty of care. He contends that the very same pain condition and consequent psychiatric difficulties from which she now suffers were the inevitable consequence of her congenital defect which would have developed sooner or later, whether she had surgery or not, and could not have been prevented by the implementation in or about June 2012 of a regime of conservative management. In short, the loss she has sustained cannot be attributed to his breach.

28. [193]

    Moreover, Dr Fraser contends that, even if Hailee Williams sustained what might be described as pre-surgical loss as the result of his breach, the genesis of her current pain syndrome is solely to be regarded as the manifestation of the surgical procedure itself, as distinct from her antecedent medical condition, and that the surgery was inevitable. Dr Fraser also contends that anything from which Hailee Williams now suffers is the materialisation of an inherent risk of the surgery that could not have been avoided by the exercise of reasonable care and skill.

29. [194]

    Consistently with the decision in Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311, where a case can conveniently be decided under s 5I, it should be. This is because s 5I, like s 5O, does not merely deny s 5B causation but provides a defendant with a compete answer to any claim falling within Part 1A of the Civil Liability Act.

30. [195]

    Section 5I of the Act provides as follows:

31. [196]

    Dr Fraser submitted that at any time during which Hailee Williams may have come to surgery, from mid-February 2013 until 13 June 2013 (or what Dr Fraser suggests is “more realistically” from April 2013 until 13 June 2013), there was an inherent risk of her developing a failed back surgery syndrome or a mixed pain state and that such risk was one that could not have been avoided by the exercise of reasonable care and skill, whether on Dr Fraser’s part or on the part of anyone else who may have treated her if her spondylolisthesis had been diagnosed earlier.

32. [197]

    Clearly enough, Hailee Williams’ primary case is that she would have avoided surgery altogether if Dr Fraser had not breached his duty of care. That case proceeds upon the basis that conservative management, including core strengthening, would have prevented the progression of her slip and that Hailee Williams would have “continued to suffer from minor back twinges from time to time but she would not [have become] grossly disabled”. Dr Fraser maintains that such a proposition “simply cannot be maintained on the available evidence”, particularly the evidence of the radiologists and orthopaedic surgeons, neurosurgeons, neurologists and rehabilitation physicians.

33. [198]

    Briefly stated, Dr Fraser’s position is that Hailee Williams’ pain condition was the unavoidable consequence of surgery that was itself inevitable: the earlier discovery of her spondylolisthesis would not have led to the avoidance of surgery, even with conservative interventions. It follows, therefore, that for the inherent risk defence to succeed, Dr Fraser must establish two things. First, that Hailee Williams would have required surgery for her spondylolisthesis, even if her pars defect had been diagnosed earlier and treated (as she says it should have been), with lumbosacral imaging revealing the spondylolisthesis, associated limitation on activities, the recommendation for core strengthening exercises and physiotherapeutic care. The second is that Hailee Williams would always have risked developing the harm from which she now unarguably suffers, whether caused by the surgery or not, and that it could not have been avoided by the exercise of reasonable care and skill.

34. [199]

    Dr Fraser maintained that irrespective of whether Hailee Williams was properly advised and conservatively managed, as he concedes she would have been had her spondylolisthesis been diagnosed in June 2012, she would always have come to surgery on or around 13 June 2013. This was said to be for several reasons, drawn from Dr Fraser’s written submissions as follows.

35. [200]

    First, most experts have indicated for various reasons that in her case, surgery for Hailee Williams was inevitable. That is the view of Professor Dan, Dr Tuffley, Dr O’Neill, Dr Sutton, Dr Biggs and Associate Professor Boesel. Only Dr Sekel and Dr Drnda support the alternative view. Dr Fraser suggested that the minority view was flawed for several reasons.

36. [201]

    For example, Dr Sekel’s support for Hailee Williams’ position was based on statistics as to dysplastic spondylolisthesis. It is also submitted that Dr Sekel has changed the position he agreed to at the experts’ conclave:

37. [202]

    Dr Fraser contended that Dr Sekel’s reliance upon statistics was an inferior substitute for specific reference to Hailee Williams’ clinical presentation and circumstances. Moreover, Dr Fraser submitted that Dr Sekel’s change of position on what is a critical issue in these proceedings “does him no credit”. Dr Fraser submitted that I could have “very little confidence” in Dr Sekel’s views that conservative management would have averted surgery in this case.

38. [203]

    Dr Drnda was similarly challenged. In his report dated 7 November 2019, he said that a reasonable practitioner who was aware of Hailee Williams’ lumbosacral spinal problem in June 2012 would have advised her to avoid work that involved repetitive bending, twisting, lifting and carrying heavy items and to avoid contact sports like netball, basketball, martial arts or anything that involved running and jumping. He then expressed the view that, on the balance of probabilities, if that advice had been heeded, there “would be a significant possibility that [she] would stabilise at a certain level of back discomfort and avoid progression of her listhesis”. [Emphasis added]

39. [204]

    Dr Drnda was cross-examined about that view:

40. [205]

    Dr Drnda had earlier given the following response to questions from Mr Morris about the same issue:

41. [206]

    Dr Fraser’s submissions emphasised the italicised words, suggesting that there was an element of Dr Drnda checking himself when he used the language of possibility rather than probability, which Dr Fraser submitted was a matter of significance that Dr Drnda appreciated. He submitted that on Dr Drnda’s views, Hailee Williams could prove no more than that she lost a chance of avoiding surgery through conservative management, and failed therefore to satisfy the civil burden: see, for example, Tabet v Gett at [67] –[69] as follows:

42. [207]

    In that case, the injured plaintiff was unable to prove that it was probable that the brain damage that he sustained would have been avoided if treatment with corticosteroids had been undertaken earlier. The evidence was insufficient to be persuasive. Dr Fraser maintains in like fashion that Dr Sekel’s reliance upon statistics, associated with his change of opinion, and Dr Drnda’s initial reference only to a significant possibility, were not sufficient to establish that in this case Hailee Williams would have avoided surgery even if appropriately treated.

43. [208]

    Secondly, Dr Fraser submitted that Hailee Williams had several idiosyncratic characteristics that put her at a significantly increased risk of suffering a slip progression in her spondylolisthesis and the consequent need for surgery to address it. These included the trapezoidal shape of her L5 vertebra and the dome shape of her sacrum, significant hypoplastic deficiencies in her facet joints which meant that forward slip of L5 on S1 was not adequately prevented and the fact that Hailee Williams was skeletally mature as at 24 May 2012.

44. [209]

    Dr Earwaker was also cross-examined about this area as follows:

45. [210]

    Some things described by Dr Earwaker in his 27 February 2018 report should also be noted at this point. Dr Earwaker referred to the 11 June 2013 X-ray findings of Hailee Williams’ lumbosacral spine as follows:

46. [211]

    Dr Earwaker noted that Hailee Williams suffers from the congenital, otherwise known as dysplastic, form of spondylolisthesis: it has been present since birth. He then said this:

47. [212]

    Dr Fraser submitted that having regard to this and other material, the evidence strongly supported a finding that Hailee Williams’ degree of slip was very likely unchanged or only marginally changed, between 20 June 2012 when she saw Dr Stening and 13 June 2013, when she underwent surgery. Dr Fraser’s proposition is that Hailee Williams’ condition in June 2012 was such that she was at that time inevitably destined to come to surgery and that the delay in that occurring until June 2013 did not make any difference. The degree of her slip of L5 on S1 did not materially change during that time and conservative management of her condition would have made little, if indeed any, difference at all.

48. [213]

    Thirdly, Dr Fraser submitted that the evidence given by Hailee Williams’ experts after considering her clinical circumstances in the critical period between June 2012 and June 2013 indicated that “there is even more reason to prefer the view of the defendants’ experts”. It was contended that Dr Sekel appears to have accepted that because of all of Hailee Williams’ predisposing congenital factors, the prospects of her avoiding surgery through conservative management “could be put at no higher than a chance”:

49. [214]

    Dr Fraser argued that when regard is had to Hailee Williams’ documented activities between April 2012 until May 2013, there was no more than a small chance she would have avoided surgery if her condition had been accurately diagnosed and she had been restricted in her activities through conservative management. Dr Sekel agreed with this:

50. [215]

    Dr Drnda agreed:

51. [216]

    Necessarily inherent in Hailee Williams’ approach is the assumed position that conservative management of her condition from June 2012 would have made a relevant difference to her progress. For abundant caution I note that my understanding of her case on this issue is that she could not by conservative management have been made better than she was on 20 June 2012, but that the avoidance of problematic work related and recreational physical activities, together with core strengthening exercises, could have maintained her condition as at that date and thereby avoided deterioration that would have led to surgery.

52. [217]

    The defendants’ experts have argued that Hailee Williams was always a candidate for surgery, with or without conservative management. As Dr Tuffley said in his evidence:

53. [218]

    During the concurrent evidence of the experts, the following discussion also occurred:

54. [219]

    Dr Tuffley’s evidence was to the following, similar effect:

55. [220]

    In response to Hailee Williams’ so-called alternative case, that she would have fared better from surgery if it had been performed earlier, Dr Fraser submitted that, with the sole exception of Dr Sekel, all experts agreed that it would not be appropriate to operate before there was the manifestation of some neurological deficit. That was first observed by Dr Cree on 13 June 2013 and surgery followed immediately thereafter. In short, Dr Fraser submitted that I should conclude that even if Hailee Williams had been diagnosed earlier and she had been conservatively managed under expert orthopaedic and spinal care, she would not have come to surgery any earlier than she did in fact.

56. [221]

    The burden of Dr Fraser’s response to this question is that if, contrary to my conclusion, his breach of duty caused loss and damage to Hailee Williams that necessitated surgery, her current medical problems were entirely caused by that surgery and that its clinical inevitability means that he can successfully invoke the protection of s 5I of the Act. In other words, the development of Hailee Williams’ current pain syndrome was an inherent risk of that surgery, to which it is exclusively referable, and that the risk could not have been avoided by the exercise of reasonable care and skill.

57. [222]

    Although as will shortly appear, because of the view I have taken concerning the issue of whether conservative management could have avoided surgery, the issue does not arise, I do not consider that the development of Hailee Williams’ pain syndrome on the evidence in this case has been shown to be separate and distinct from her antecedent medical condition that prompted the surgery that Dr Fraser contends carried the alleged inherent and unavoidable risk.

Consideration and conclusions

1. [223]

   In my opinion, if Dr Fraser had correctly diagnosed Hailee Williams’ anatomical spinal problem or condition on 24 May 2012, she would still have developed her current pain syndrome and associated problems even if her condition had been conservatively managed. The evidence about the likely ineffectiveness of conservative management is, in my view, quite compelling. Dr Fraser’s breach did not cause her loss. That is because conservative management of her pre-operative pain syndrome would not have been enough to stem or stall the natural progression of a serious congenital anatomical spinal condition that led to it. Hailee Williams would also inevitably have come to surgery at some point after 20 June 2012 whether Dr Fraser had breached his duty or not. His breach did not cause the need for surgery or the consequences of the surgery if, contrary to my view, they were different to or more significant than her pre-surgical difficulties.

2. [224]

   Moreover, in considering the competing evidence about this I have necessarily had regard to the onus of proof that Hailee Williams bears. I accept unconditionally that the evidence establishes that if her condition had been detected earlier, specifically when Dr Fraser reported on her condition to Dr Mutasim, she would in the first instance have been conservatively managed in the ways detailed by the experts. However, I am unable to accept that Hailee Williams had any more than a chance that this approach would have obviated the deterioration of her condition in the way that has occurred. In accordance with authority, such as Tabet v Gett cited earlier, Hailee Williams is required to establish that it is probable that conservative management would have avoided her current problems. The uncontroversial proposition that she had a chance of doing so, and that she has established the existence of that chance, does not suffice to prove that Dr Fraser is liable to her for his breach of duty.

3. [225]

   It is important in this context to take note of the experts’ views at which they arrived in conclave and which are recorded in the Joint Report of Experts re Causation dated 26 May 2020. Because Dr Sekel and Dr Drnda were members of that conclave, and because on one view their evidence in court was at odds with the opinions they expressed in the Joint Report, it is necessary to set out the terms of Question 10 in that report and the answers provided by the doctors concerned:

4. [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 Hailee Williams would have been successfully managed with timely conservative treatment. Moreover, beyond understandable attempts to explain these views away, they are at odds with other opinions of at least equal weight from Professor Dan and Dr Tuffley that Hailee Williams’ “spondylolisthesis would still have progressed because it is an inherent characteristic of the disorder” and that “she would have come to some form of surgery notwithstanding the conservative management/treatment” [Emphasis added]. The same doctors said that the “condition is one which progresses almost despite treatment rather than because of treatment”. Professor Dan and Dr Tuffley thought that the main cause of Hailee Williams’ gradually increasing symptoms “was a loss of disc height due to degeneration”, otherwise described as “the natural history of the condition”.

5. [227]

   There is in any event a dispute among the relevant experts in this case about the precise grade or level of Hailee Williams’ spondylolisthesis. The evidence and the competing views about this simply do not enable me to conclude which opinion is correct. Dr Biggs believed Hailee Williams had a Grade III spondylolisthesis and that conservative management would not have helped her. He referred in his evidence (quoted above at [218]) to various statistics related to whether certain patients had a low-grade or a high-grade spondylolisthesis. An article attached to the Causation Report indicates that “non-surgical management of the symptomatic patient with high-grade spondylolisthesis is generally less successful than with low-grade spondylolisthesis”. However, Dr Drnda gave evidence that he believed Hailee Williams in June 2012 “was probably grade two, not high grade”. Despite that, Dr Drnda was unable to say more than that “if conservative management, as it was outlined was instituted, she would have very good chance to remain in the same level and not to deteriorate in February” [emphasis added]. I raise these matters to emphasise that, accepting favourably to Hailee Williams for the purposes of the argument that Dr Drnda’s view about the seriousness of Hailee Williams’ condition is correct, he was even so unable to speak other than in terms of chances. His evidence in joint session that it was more likely than not that conservative management would have forestalled deterioration of her condition or the need for surgery is difficult to accept having regard to his other references to chance, his position taken in the conclave and the weight of competing expert opinions to the contrary.

6. [228]

   Although it has already been referred to, Dr Drnda provided a report in support of Hailee Williams’ case on 7 November 2019, about which he was cross-examined. With specific reference to the agreed regime of suitable conservative management, Dr Drnda was asked, and answered, the following question:

7. [229]

   I have set out the precise terms of the question and the answer to make it clear that Dr Drnda was specifically referred to the balance of probabilities but only answered in terms of possibilities.

8. [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 Hailee Williams’ progress. I am not satisfied that Dr Fraser’s negligence was a necessary condition of the occurrence of the harm that she suffered. It follows that I cannot be satisfied that her loss and damage were caused by Dr Fraser’s breach of duty in failing to diagnose her condition. I reiterate that I accept that conservative management and treatment would have been instituted in mid-2012 but for that breach of duty. Although it is not presently relevant to the determination of factual causation to consider what Hailee Williams would have done if Dr Fraser had not been negligent, I am satisfied that Hailee Williams would have followed advice if it had been given to her in accordance with the experts’ opinions of what conservative management would have involved.

Conclusion

1. [231]

   In these circumstances there should be judgment for Dr Fraser.

2. [232]

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

Non-economic loss

1. [233]

   Hailee Williams made the following submissions.

2. [234]

   Hailee Williams is 27 years of age. At the time of the alleged negligence in 2012, she was approximately 18½ years of age.

3. [235]

   She had successfully completed her higher school education and was enrolled in university to study Primary School Education. Her expectation was to become a primary school teacher and ultimately move into student counselling.

4. [236]

   She deferred from university in 2012 and entered childcare so she could gain experience in managing children. Her rationale was to see whether she would enjoy working with children given her proposed career path. As a result of her medical condition, primary school teaching is no longer possible.

5. [237]

   Hailee Williams is now significantly disabled by her pain condition. The defendants accept this. She has developed a chronic and entrenched pain syndrome which is a combination of nociceptive and neuropathic pain radiating from her lumbar spine to her lower limbs and feet. This has been of longstanding duration.

6. [238]

   Ms Williams' chronic nociceptive and neuropathic pain syndrome has adversely affected her psychological state resulting in a chronic adjustment disorder with depressed and anxious mood within the context of chronic physical disabilities and pain disorder.

7. [239]

   She suffered a severe emotional shock when she was told she required urgent surgery in order to avoid becoming a paraplegic. Following surgery, she has suffered ongoing pain. She has never been without pain.

8. [240]

   The severity of Ms Williams' symptoms of anxiety and depression are predominantly driven by her intractable response to the pain complaint. Her psychiatric prognosis depends largely upon the resolution of her chronic pain syndrome and the severity of the physical symptoms.

9. [241]

   The pain management experts consider her prognosis to be guarded. There are significant negative prognostic factors that may have an impact upon future treatment.

10. [242]

    It is accepted that Ms Williams' nociceptive and neuropathic pain condition has affected her activities of daily living, mobility, mood, social functioning, and quality of life. Dr Fisher clearly pointed out her invidious cycle of pain and suffering.

11. [243]

    She has functioned better during some periods than at other times. While she has attempted to maintain employment, which is to the defendants' benefit as it reduces her economic loss, her engagement in employment has been associated with pain and fatigue. She has worked despite her pain. She wanted to contribute to the family and enjoy a sense of meaning and contribution. Her inability to re-engage in the workforce will have a negative effect on her self-esteem and emotional wellbeing. If she can work in the future, she will be suffering pain.

12. [244]

    Ms Williams always wanted to have children. Her ability to have a normal family life with children for whom she could care is substantially compromised and is essentially unavailable to her.

13. [245]

    Andrew Rae provided unchallenged evidence as to the nature and extent of the care Ms Williams requires due to her significant pain syndrome and related issues. She has effectively lost her independence. Mr Rae describes her increased use of walking sticks or Canadian crutches when ambulating in and outside her home. He has witnessed her having "collapsing attacks". He does not know what causes these. He described, in detail, the progression of symptoms from numbness in her thigh which progresses to her dragging her foot before ultimately collapsing into an apparent state of unconsciousness.

14. [246]

    Andrew Rae also described her difficulties with respect to domestic tasks, her pain issues and an array of problems he has witnessed including her difficulty sleeping, nightmares, pain management, activities of daily living, and social interaction. None of these observations was challenged.

15. [247]

    He also detailed the plaintiff's worsening physical, emotional and psychiatric state. He described her living conditions and decreased mobility, the deterioration in her mental health and treatment, her financial, emotional and self-perception, her employment, and what he does to assist her activities of daily living. His evidence was not challenged.

16. [248]

    Similarly, the evidence of Ronald Rae was unchallenged about what he observed and the care he provided to Ms Williams, including domestic and personal care.

17. [249]

    It has been suggested that Ms Williams may respond to a targeted multidisciplinary and supportive pain management program that in conjunction with spinal cord stimulators. This would assist her to manage her pain but would not remove it completely. Notwithstanding her motivation to reduce her pain, there are significant negative prognostic factors, not the least of which is the fact that there have been seven years of post-surgery without adequate pain management or treatment.

18. [250]

    The efficacy of a permanent spinal-cord stimulator can only be determined by her response to the 10-day temporary simulator trial. If she does not achieve a minimum pain reduction of at least 50 per cent, then the permanent stimulator will not be implanted. Moreover, there are inherent risks with spinal-cord stimulators: between 10 and 15 per cent of electrodes migrate and there is a requirement for repeat surgery to replace batteries. It is an invasive procedure and would need to be the subject of advice.

19. [251]

    The defendants made the following submissions.

20. [252]

    While there can be no guarantees of success and there are some negative prognostic factors, not the least of which is that almost eight years have passed since Hailee Williams’ initial surgery, there are nonetheless several fairly significant positive indications. Ms Williams is still young, clearly motivated to receive treatment and improve her level of function and has expressed a preparedness to commit to appropriate pain management. Provided her medication regime is modified, including weaning off opioids and medicinal marijuana, and providing a multi-disciplinary and supportive treatment plan, possibly utilising a spinal cord stimulator, the defendants submitted that there are good prospects of a fairly significant reduction in her pain and improvement in her level of function. The defendants emphasised Associate Professor Boesel’s opinion as to the evidence base for high frequency spinal cord stimulation and its efficacy in bringing about pain reduction.

21. [253]

    While the evidence also indicates that Ms Williams suffers from an adjustment disorder, the defendants submitted that it seems primarily to be driven by her experience of pain. In addition, she had an entrenched adjustment disorder prior to the events in respect of which she sues. There is thus a likelihood on the evidence that even but for the alleged negligence, Ms Williams would have continued to experience at least some level of depressive symptoms as part of that disorder.

22. [254]

    The defendants submitted that, in all the circumstances, after having regard to the objective seriousness of her injuries and disabilities and their subjective effect on her, the appropriate allowance for non-economic loss should be assessed as 55% of a most extreme case.

23. [255]

    In my view, Hailee Williams is significantly and functionally debilitated and has effectively lost her independence in most facets of her life. The prospect of any successful resolution of her pain syndrome is small. Hailee Williams appeared to me to be destined for a life of significant incapacity, with her currently entrenched disabilities unlikely on one view to resolve at all and certainly unlikely to improve in the short term. It is difficult to see how even the best medical care and attention will produce a satisfactory resolution of her cycle of pain. She was also an active and energetic young woman, participating in regular sport and recreational activities which are now lost to her. It is difficult to imagine the level of frustration and distress that this loss will have caused.

24. [256]

    I am not able to accept the defendants’ assessment of her condition as only 55% of a most extreme case. In my opinion, Hailee Williams is entitled to damages assessed upon the basis that she is 82% of a most extreme case.

Past out-of-pocket expenses

1. [257]

   The parties have reached agreement on the following out of pocket expenses for the period 13 June 2013 to 15 June 2020:

2. [258]

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

Future Out of Pocket Expenses

1. [259]

   Hailee Williams made detailed submissions with respect to her likely future treatment requirements. Her submissions were as follows.

2. [260]

   Dr Rutkowski and Dr Dalton held vastly different opinions about Hailee Williams’ future treatment expenses based on her estimated long-term appropriate pain management. Dr Rutkowski considered the future to be bleak having regard the chronicity of her nociceptive and neuropathic pain condition, psychiatric disorder, emotional and social regression and physical care requirements. In contrast, Dr Dalton considered the solution to her pain disorder and disabilities lay in the implementation of core strengthening techniques in combination with appropriate pain management treatment. Dr Dalton has not entertained the probability that pain management may be unsuccessful.

3. [261]

   The pain management experts acknowledge that a program involving the insertion of a permanent spinal simulator does not remove pain but enhances capabilities. Ms Williams submitted that they are far more circumspect in their opinions than Dr Dalton and that their experience and expertise are superior. As such, Dr Dalton’s opinion on the likely response to further pain management should be given little or no weight.

4. [262]

   The pain management experts conceded that Hailee Williams would require ongoing and regular multidisciplinary treatments for the remainder of her life, including further surgical procedures to replace things such as batteries and migrating electrodes. They conceded that even with that intervention, she would still require care and assistance. Moreover, there is a significant rate of relapse to opioid medications for the treatment of nociceptive and neuropathic pains following the successful completion of pain management programs.

5. [263]

   Having regard to these qualifications, Hailee Williams maintained that provision should be made for the following:

6. [264]

   Hailee Williams has provided evidence regarding the benefits she has received whilst undertaking the medical marijuana trial in which she has been participating since July 2019. The current cost of her medical marijuana, whilst on the government trial, is $224.00 per week. The cost thereafter on a private basis is $448.00 per week ongoing.

7. [265]

   These costs are claimed on the basis the trial will remain ongoing for a further six months and that beyond that, Hailee Williams wishes to avail herself of ongoing medical marijuana private scripts indefinitely.

8. [266]

   The total cost of this medication, as outlined in Hailee Williams’ schedule of damages, is $467,040.

9. [267]

   The defendants drew attention to the fact that this is an area where there is a significant difference between the views of Dr Dalton and Dr Rutkowski. Hailee Williams claims the total sum of $1,195,764. The defendants have conceded that only some (as indicated) of the following amounts are reasonable:

   1. (1)

      Equipment expenses totalling $5,224.80, including a suitable bed at $2,000 with replacement every 15 years, heat packs at $50, with replacement every 4 years, a shower chair at $250, with replacement every 5 years and a recumbent bike or spin bike at $1,000, with replacement every 10 years.

   2. (2)

      Medical treatment totalling $139,133.43, including four GP visits per annum at $79 per visit, pain management at $18,421.60 initially and then two follow up visits per annum at $350 per visit, a spinal cord stimulator at $100,000, with deferral for 1 to 2 years pending weaning from medication (so that the deferred sum is $92,500), orthopaedic/spinal surgeon review every 3 years at $250 per visit and an additional psychiatric review once a year, at $350 per visit.

   3. (3)

      No medical investigation expenses.

   4. (4)

      No additional medical procedures, other than the spinal cord stimulator procedure, which has been allowed for separately.

   5. (5)

      No additional allied medical or adjunct therapies other than physiotherapy, which will be provided as part of the pain management program and has been allowed for separately.

   6. (6)

      Additional medication expenses of $4,472.66, including four years of Lyrica, Panadol or Panadeine and Duloxetine in the period during which weaning off medications will occur (which comes to $23.59 per week on the costings set out in the Statement of Particulars). Additionally, a buffer type allowance of a further $5,000 is made for occasional analgesics thereafter, in total amounting to $9,472.66.

10. [268]

    I accept the defendants’ position with respect to medical investigation expenses. There is no suggestion that Hailee Williams’ orthopaedic condition will deteriorate other than at a rate commensurate with her age-related status as she matures. The need for the claimed suite of investigations does not appear to arise from the enduring pain state that is the main contributor to her current invalidity.

11. [269]

    I consider that the cost of additional medical procedures, other than the spinal cord stimulator, are also not recoverable. Physiotherapy and the medical marijuana costs should be allowed upon the basis that they relieve the defendants of the consequences of what would be unrelieved or increased suffering if some amelioration of the enduring pain syndrome can be achieved in these ways.

12. [270]

    The items marked with an asterisk in the preceding tables under this head of damage should not be allowed.

Past economic loss

1. [271]

   The defendants accept that but for her injury, Hailee Williams would likely have pursued a career as a primary school teacher. She would have studied full-time for approximately three years between 2012 and 2014, subject to possible deferral for travel so that she would have suffered no loss in 2015. Since then, the defendants accept that Hailee Williams would have earned approximately $53,600 net per annum.

2. [272]

   The parties reached agreement on past economic loss as follows:

3. [273]

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

Future economic loss

1. [274]

   Hailee Williams and the defendants have agreed on the following matters:

2. [275]

   There is no further agreement with respect to future economic loss. Ms Williams made the following submissions.

3. [276]

   Ms Williams was highly motivated and would have enjoyed the fruits of a full-time teachers’ salary to age 67 years. She has expressed an interest in returning to work provided her pain condition was under control. She could perform some administrative work.

4. [277]

   Dr Rutkowski was pessimistic about Hailee Williams’ ability to return to any meaningful work for which she had been trained or had experience due to her chronic pain disorder. She expressed considerable doubt that she would return to employment notwithstanding completion of a pain management program. Her employment prospects were dependent upon her obtaining a sedentary position that allowed her to get up and move around periodically and a sympathetic employer who would allow her to modify her working environment and conditions. Dr Rutkowski expressed serious concerns having regard to Ms Williams’ significant physical and emotional condition since 2018. She restated her pessimism surrounding Ms Williams re-engaging in the open workforce, having passed the times where she could meaningfully re-educate vocationally due to her chronic pain syndrome.

5. [278]

   Associate Professor Boesel stated that a pain management program with effective spinal cord stimulation would not resolve Ms Williams’ pain but would give her greater flexibility in work choices. However, he conceded there was no guarantee she would positively respond to temporary spinal cord stimulation and therefore a permanent spinal-cord stimulation would not be available. Accordingly, her nociceptive and neuropathic pain syndrome would persist.

6. [279]

   Dr Girdler considered that her diminished functional hierarchy of self-care and other dysfunction would cause potential employers to look elsewhere rather than to employ someone with challenging attributes. Associate Professor Boesel, Dr Fisher and Dr Virgona agreed that Ms Williams would have difficulty in re-entering the labour market or retraining. The totality of the evidence, despite her desire to re-engage in employment, persuasively suggests that it is unlikely Ms Williams will return to full-time work even with successful pain management treatment.

7. [280]

   Ms Williams therefore claims the loss of a primary school teacher’s wages (or in the alternative a school counsellor’s wage), and superannuation entitlements, until she turns 67. Based on the award, the present wage for a qualified primary school teacher or school counsellor is $112,163 gross per annum (being approximately $1,600 nett per week).

8. [281]

   Ms Williams claims $1,600 net per week for 41 years based on the 5 per cent multiplier tables. This comes to $1,479,680. Applying a 15 percent discount for vicissitudes produces $1,257,728. Ms Williams also claims the loss of superannuation at 11 percent to the age of 67 years, in the sum of $138,350. Her total claim for future economic loss including superannuation is therefore $1,396,078.

9. [282]

   Hailee Williams presented as an intelligent and resourceful woman. I can see no basis upon which to conclude that, but for her current disabling condition, she would not have embarked upon the posited career path or that her loss of income in the circumstances would not have been as she claims.

10. [283]

    The defendants’ response was in the following terms.

11. [284]

    Having accepted the premise that but for injury, Hailee Williams would have continued as a primary school teacher and progressed over time through various pay bands, a reasonable estimate for her likely earnings into the future is $70,000 net per annum ($1,346 net per week).

12. [285]

    The defendants contend that the appropriate finding as to the future, based upon the assumption that Hailee Williams participates in a pain management program and probably has a spinal cord stimulator successfully implanted, is that while she will not earn anything for approximately the next two years, she will then be fit to return to roughly half the normal hours of work, either in an administrative position in the child care industry or possibly as a primary school teacher after retraining. Accordingly, the defendants allow $1,346 net per week as a loss for the next two years, then reduced to $673 net per week for the balance of her working life through to age 65.

13. [286]

    The sum of $1,346 net per week over two years on the 5% table equates to $133,792. The sum of $673 net per week for 37 years, deferred for 2 years less 15% for vicissitudes equates to $463,644. Lost superannuation based on retirement in 37 years and consistently with the approach in Najdovski v Crnojlovic (2008) 72 NSWLR 728; [2008] NSWCA 175, amounts to $66,487, producing a total future economic loss, inclusive of superannuation, of $663,923.

14. [287]

    In my opinion, the future loss of earnings claimed by Hailee Williams is reasonable having regard to the evidence of her current capacity and the prospect of improvement. It follows that her additional claim for an economic buffer should be disallowed, as the vicissitudes that are taken into account in discounting this part of her claim necessarily make allowance for a change in her circumstances.

Past gratuitous care

1. [288]

   Meigan Williams, Andrew Rae and Ronald Rae have given unchallenged evidence about the amount of care they have provided to Hailee Williams over the last seven years.

2. [289]

   There was some disagreement between Dr Rutkowski and Dr Dalton regarding whether such care was necessary. Dr Dalton’s opinion with respect to Ms Williams’ injuries and disabilities is at odds with that of the pain management experts who consider that she suffers from a genuine and severe pain syndrome affecting all aspects of her life including her activities of daily living, domestic functions, social interaction and mood. The defendants’ submissions appear to have acknowledged that discrepancy.

3. [290]

   Hailee Williams has submitted that the evidence of Dr Rutkowski should be preferred over that of Dr Dalton: Dr Rutkowski is a spinal rehabilitation physician and her curriculum vitae outlines her significant experience with patients who have suffered spinal cord injuries. Hailee Williams’ neuropathic pain has been caused by a spinal injury and as such Dr Rutkowski is better placed to make a prescription for appropriate care and treatment. Her assessment and recommendations are consistent with the largely unchallenged lay evidence.

4. [291]

   Dr Rutkowski also undertook a thorough assessment of Ms Williams and attended her home on two occasions to assess her needs and future requirements. Dr Dalton, a sports rehabilitation physician, did not do so.

5. [292]

   Hailee Williams claims the sum of $162,786 as particularised.

6. [293]

   This claim is reasonable, is supported by the evidence and should be allowed. It has not been suggested, nor in my view could it have been, that those who spoke of the assistance provided to Ms Williams were giving other than truthful evidence. Moreover, the nature of the assistance given draws support from the opinions expressed by Dr Rutkowski concerning Hailee Williams’ current difficulties.

Future gratuitous/paid care

1. [294]

   Hailee Williams has given evidence that she can achieve very little by way of domestic tasks and often requires assistance with personal care. While she attempts some household tasks, the evidence suggests this is sporadic and her capacity to perform those tasks is unpredictable.

2. [295]

   Ms Williams also provided evidence that if she were awarded damages, she intended to engage a paid care provider to assist with domestic tasks and personal care. In particular, she gave evidence that she desires to have a romantic relationship with her fiancé, rather than a carer/patient relationship.

3. [296]

   Both Dr Fisher and Associate Professor Boesel gave evidence in joint session that her supportive relationship and close family were important prognostic factors. If those relationships unravel, she is at significant risk of psychological regression and consequent reduced capacity to adapt her life to pain.

4. [297]

   Hailee Williams submitted that where she is not provided with commercial care and forced to rely on the ongoing assistance of her family members, unreasonable strain and pressure would be placed on her relationship with her fiancé and family. Given that these relationships are essential for her social and emotional wellbeing, and her capacity to cope with a significant pain condition, she submitted that she ought to be provided with commercial care.

5. [298]

   Andrew Rae, Ronald Rae and Meigan Williams gave unchallenged evidence about the extent of the care which she requires as the result of her significant and severe nociceptive and neuropathic pain syndrome. That condition has adversely affected her activities of daily living, mobility, mood, social functioning, and quality of life.

6. [299]

   Both Dr Rutkowski and Dr Dalton agreed that Hailee Williams currently requires assistance with activities of daily living including some aspects of meal preparation, cleaning, shopping, laundry, making the bed, gardening, handyman tasks and the like. The main difference of opinion is whether this is reasonable to be ongoing into the future and whether her care requirements would reduce if pain management strategies are introduced. This largely depends on whether such strategies are likely to be effective. Ms Williams has established a need for extensive care.

7. [300]

   Hailee Williams submitted that on balance it is unlikely there will be a substantial or sustained positive response to pain management, spinal cord stimulation or any other technique. The efficacy of such treatment is speculative, and the defendants have failed to discharge their onus that it would result in significant improvement.

8. [301]

   Dr Rutkowski stated considered that Hailee Williams’ future requirements were considerable. She considered that, on the assumption she was living alone and in a suburban house, Hailee Williams required three to four hours per week for household cleaning, two hours per week for meal preparation and other light activities related to cooking, one hour per week for laundry, including changing sheets and similar activities, two hours per fortnight for gardening and outdoor activities, and two hours per fortnight for handyman assistance. Dr Rutkowski considered that it would be reasonable for Ms Williams to have daily assistance with self-care (even if on a standby basis) and other activities of daily living.

9. [302]

   Hailee Williams submitted that it would be reasonable for her to be provided with two hours of daily paid assistance for combined personal care (standby) and domestic assistance tasks. It would be reasonable for this care to be provided every morning to allow Ms Williams to shower safely and dress with standby assistance while her bed is made, heavier parts of daily meal preparation are performed, with more onerous aspects of daily kitchen cleaning and parts of the weekly laundry, household cleaning, and shopping undertaken later.

10. [303]

    Ms Williams submitted that an average hourly rate of $55.00 is reasonable in the circumstances when considering where she currently resides. The rates are well within and below the National Disability Insurance Scheme guidelines and therefore most likely indicative of the relevant market rate.

11. [304]

    With respect to her current and future transportation requirements, Dr Rutkowski considered that, having regard to her opioid medication regime, the pain management experts’ comments on negative prognostic factors and guarded prognosis and the known high relapse rates following pain management treatment, Hailee Williams required seven hours per week of transportation assistance for general outings and medical appointments. If she does not return to work, Ms Williams will likely require further transport assistance over and above that identified by Dr Rutkowski. According to Dr Rutkowski, Ms Williams will require an additional five hours per week of care from age 65 years.

12. [305]

    Hailee Williams claims the sum of $1,355,144 as set out in the second further amended statement of particulars filed 3 June 2020.

13. [306]

    As already noted, the significant difference of opinion between Dr Rutkowski and Dr Dalton concerns the question of whether Hailee Williams’ care needs will continue unabated permanently into the future or will abate progressively if anticipated pain management strategies are successful. Ms Williams’ position is that on balance it is unlikely that there will be a sustained or substantial positive response to pain management, spinal cord stimulation or any other technique, and that the efficacy of such treatment is speculative.

14. [307]

    Clearly enough, assessments of such requirements can only be informed by expert opinion to a limited degree. That is for the obvious reason that even expert medical practitioners experienced in the field of rehabilitative medicine are only marginally better able to predict the future than me. I have already expressed a preference for Dr Rutkowski’s approach, as she been more closely involved with Hailee Williams and is objectively sympathetic to her predicament. Even so, the defendants are entitled to the benefit of the uncertainty that attends the suggestion that Hailee Williams’ condition will never improve, a proposition that cannot presently be tested or decided.

15. [308]

    Doing the best I can, I would allow under this head of damages an amount of $900,000.

Buffer for future care

1. [309]

   Hailee Williams has a history of falls. Each of the lay witnesses has observed them. There is a record of a recent fall in Dr Chow’s notes where she injured her wrist. Hailee Williams has claimed a “buffer” for future care on the basis that any of the following complications may arise as a result of her neurological injuries, spinal injury, treatment requirements and spinal cord stimulator.

2. [310]

   These complications could include spinal cord stimulator electrode migration, infection or arachnoiditis, further traumatically induced orthopaedic injuries due to falls and carpal tunnel syndrome due to reliance on crutches. Ordinary accidents that befall uninjured people will have a greater impact on her due to an already compromised level of functioning.

3. [311]

   Hailee Williams’ claim is currently made upon the basis that she continues to remain in a relationship with Andrew Rae. If she were to live alone, her care needs would correspondingly increase. If she were to injure herself, she would require a heightened level of attendant care, with tasks such as dressing, bathing, transfers, ambulating, medical attendances, and some additional domestic assistance.

4. [312]

   Hailee Williams conceded properly that the amount, if any, of increased future care cannot be determined with any certainty. However, she maintained that provision is required in order adequately to compensate her for contingencies. An assessment needs to be made of the likelihood that she may be injured in a way that increases her future care needs. Hailee Williams maintains that she has established a propensity to fall and injure herself. She submitted that the award of a sum by way of a buffer is therefore reasonable to take account of matters that are incapable of prediction with any degree of certainty, and that this should be done upon the basis that she will require an additional five hours of daily assistance. This claim is promoted and discounted on the basis that there is a 70 percent chance this will not occur.

5. [313]

   Accordingly, based on a 70 per cent discount, Hailee Williams claims a buffer calculated at the rate of 5 hours per day attendant care and domestic assistance or 35 hours per week, at $55 per hour amounting to $1,925 per week x 1,017.5 (5% discount rate) or a total of $1,958,687.50. After a discount of 70 percent, the total buffer claimed is $587,606.25.

6. [314]

   I do not consider that this head of claim is maintainable. Once again, anything in the future is possible. The claim for an economic cushion is based upon the unestablished proposition that any change in Hailee Williams’ circumstances will be disadvantageous. There must logically be a corresponding proposition to the opposite effect. An economic buffer should in my view apply in circumstances where a future need exists but where the amount to compensate for it cannot be quantified because of uncertainties and unpredictable events. The sum allowed for future care already takes into account these matters in a way that reflects a balance between the competing positions of the parties. The sum claimed under the present head would in my view amount to double, or at least overlapping, compensation for the same loss.

Conclusion

1. [315]

   Hailee Williams’ claim in summary can be seen in the following table:

2. [316]

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

3. [317]

   I will in the circumstances make the following orders:

   1. (1)

      Judgment for the defendants.

   2. (2)

      Costs reserved.