Taylor v Woodgate

1. [1]

   HARRISON CJ at CL: I agree with McHugh JA.

2. [2]

   McHUGH JA: The respondent is an orthopaedic surgeon who treated the appellant in the period 2010 to 2019. On 10 May 2011, he performed surgery to replace the appellant’s left hip with prostheses including an MSA Size 2 femoral stem (the stem). On 30 August 2011, the respondent performed revision surgery in which the stem was left in situ (the Revision Surgery). The respondent provided the appellant with ongoing management of various conditions thereafter.

3. [3]

   The appellant sued the respondent, alleging various species of negligence in relation to his treatment. The primary judge, Weber SC DCJ, dismissed the claim: Taylor v Woodgate [2025] NSWDC 89. In this Court, his Honour’s findings of primary fact, including adverse credit findings, are largely unchallenged, and some aspects of the appellant’s claim below have fallen away.

4. [4]

   The dispositive questions on the appeal are as follows.

   1. (1)

      Was the stem “loose” at the time of the revision surgery (Grounds 1 and 2)?

   2. (2)

      Did the stem become loose at some time in the period between the revision surgery and 2017 (Grounds 1 and 2)?

   3. (3)

      In the period after the revision surgery until 2017, would an orthopaedic surgeon exercising reasonable care have detected or investigated whether the stem was loose and recommended further revision surgery (Ground 5)?

5. [5]

   The answer to each question is no. The appeal must be dismissed. That being so, it is unnecessary to answer the questions of causation which arise under Grounds 4 and 6.

Background

1. [6]

   The appellant is 56 years old and has had a history of hip problems since childhood. He first attended on the respondent on 24 August 2010. On 15 October 2010, the respondent operated on the appellant at St Vincent’s Hospital. Thereafter, the appellant consulted with the respondent on a number of occasions, including on 2 December 2010 when they discussed a possible total left hip replacement. The respondent performed that surgery on 10 May 2011 at St Vincent’s Private Hospital. Among the prostheses used was an MSA Size 2 femoral stem made from titanium alloy, referred to in the appellant’s submissions as an “MSA short stem device”.

2. [7]

   It was not in dispute that by 22 June 2011, the stem had moved relative to the femur. This led to the Revision Surgery, which the respondent performed on 30 August 2011 at St Vincent’s Hospital. Thereafter the appellant had many consultations with the respondent. On 28 March 2019, the respondent advised the appellant that there had been loosening of the hip prosthesis and that, in his view, the appellant required another revision surgery. The appellant consulted with another orthopaedic surgeon, Dr Neil, who also recommended revision surgery. That surgery was performed by Dr Neil on 27 April 2019.

The risk of harm

1. [8]

   The appellant sued the respondent for negligence said to arise out of his advice before the initial hip replacement surgery, the Revision Surgery and his post-operative treatment. By s 5A of the Civil Liability Act 2002 (NSW) (CLA), Pt 1A of the CLA applied to the appellant’s claim. The question whether the respondent breached the duty of care that he owed to the appellant involved the application of s 5B of the CLA, which provides:

2. [9]

   The primary judge did not refer to s 5B. Nor did his Honour identify the relevant “risk of harm” that the respondent failed to take precautions against for the purposes of that section. In the circumstances, it is convenient to identify the appellant’s pleaded and particularised case as to the precautions a reasonable person in the respondent’s position would have taken.

3. [10]

   In the appellant’s amended statement of claim the total left hip replacement surgery that the respondent recommended on 12 January 2011 was said to be associated with the following risks of harm:

4. [11]

   Only the third risk of harm is relevant to this appeal. The appellant’s amended statement of claim further characterised that risk for the purposes of s 5B(1) as follows:

5. [12]

   At J[23]-[27] the primary judge summarised the appellant’s case as to the precautions he said the respondent should have taken in relation to the stem. These comprised the following.

   1. (1)

      The respondent was “not meticulous when checking if the femoral stem was loose, and omitted critical steps which, if followed, would have led to the discovery that the stem was loose.”

   2. (2)

      The respondent ignored or downplayed the appellant’s complaints that he was experiencing chronic pain, restricted movement, and a loose femoral stem and/or significant leg discrepancy from 2012 to 2019, and failed to investigate those complaints either adequately or at all.

   3. (3)

      The respondent failed to interpret radiological evidence of progressive loosening of the femoral stem in consultations as early as 14 October 2011, and up until August 2017. Specifically, the appellant alleged that the respondent misinterpreted MRI imaging from March 2013 and failed to synthesise this data with the appellant’s reports to him of ongoing symptoms and, as a consequence, the respondent failed to arrange a second revision procedure to replace the stem. Similarly, the appellant alleged that the respondent was negligent in misinterpreting an MRI scan in February 2013 as positively excluding the presence of stem loosening. This misinterpretation led to the respondent’s failure to reconsider femoral stem loosening as a potential cause of the plaintiff’s ongoing symptoms after that date.

The trial and the primary judge’s findings

1. [13]

   It is convenient to give an overview of the way the issues were framed at trial and of the primary judge's conclusions on those issues. Detailed consideration of his Honour’s findings and the evidence relevant to them will be deferred until consideration of the issues on the appeal.

2. [14]

   The primary judge stated at J[29] that the parties agreed that the issues requiring determination by the Court could be reduced to 5 issues, which his Honour adopted. His Honour summarised those issues in the following headings:

   1. (1)

      “Alleged Failure to Advise and/or Warn During the Initial Pre-Operative period”;

   2. (2)

      “Steps Taken During the Revision Surgery to Identify and Eliminate Loosening”;

   3. (3)

      “Alleged Negligence in Post-Operative Management”;

   4. (4)

      “Consideration of Radiographic Imaging”;

   5. (5)

      “Whether the Plaintiff would have had Pain Free and Functional Use of his Leg if a Conventional Stem had been Used”.

3. [15]

   Issue 1 is not relevant in this Court. But the way in which the issues were formulated should be understood to reflect the way in which the case was put below, and is important context for the way in which the case is now put on appeal.

4. [16]

   Both parties called an expert orthopaedic witness: Dr Doig was called by the appellant and Dr O’Sullivan was called by the respondent. These witnesses provided reports and ultimately attended a conclave. This led to a joint report, in which the experts were in substantial agreement in relation to the issues upon which they were asked to opine. Dr Doig and Dr O’Sullivan also gave evidence concurrently. The parties agreed that the matters on which the experts agreed in their report were to be taken as “widely accepted in Australia by peer professional opinion as competent professional practice” for the purposes of s 5O of the CLA.

5. [17]

   With respect to the Revision Surgery, the primary judge accepted the respondent’s evidence about the steps he undertook during the surgery. His Honour noted that Dr Doig and Dr O’Sullivan had opined that if such steps were undertaken, then that was a “reasonable way to assess whether the femoral stem was loose.” His Honour also referred to the operation report authored by Dr Grieve, who assisted the respondent with the surgery, which recorded that the stem was not loose. Accordingly, the primary judge found that the respondent had not breached his duty of care to the appellant during the Revision Surgery.

6. [18]

   The primary judge then turned to the alleged negligence in the respondent’s post-operative management of the appellant. His Honour referred to the expert orthopaedic surgeons’ opinion that in order to diagnose a loosening of the prosthesis, an orthopaedic surgeon exercising reasonable care and skill would be required (a) to undertake a focused clinical examination of the patient; (b) to obtain a careful history from the patient; and (c) to evaluate the radiological imaging. His Honour found that there was no failure on the part of the respondent to exercise such reasonable care and skill.

7. [19]

   In relation to the appellant’s submission that the respondent failed to interpret radiological evidence of progressive loosening of the femoral stem between 14 October 2011 and August 2017, the primary judge referred to the evidence of the orthopaedic experts, in particular Dr Doig, that while radiological images are an important diagnostic tool, they are of less diagnostic importance than clinical examination and exploration of the patient’s history and functionality.

8. [20]

   The appellant also relied on a report given by a radiological expert, Professor Thomson. In a passage of the judgment that is of some significance on the appeal, the primary judge said at J[145] that “the evidence of the radiological expert relied on by the plaintiff in relation to this issue cannot be reconciled with the evidence of the orthopaedic experts, who agreed that there was no radiological movement of the stem after August 2011 until 2017.” At J[151]-[153] his Honour preferred the joint opinion of the orthopaedic experts to that of Professor Thomson:

9. [21]

   Accordingly, his Honour held that the respondent had not breached his duty of care to the appellant when interpreting his radiological results.

10. [22]

    On the issue of causation, the primary judge first referred to s 5D of the CLA, which relevantly provides:

11. [23]

    The primary judge found that causation was not established. His Honour’s dispositive reasoning on that issue appears at J[158]-[159]:

12. [24]

    One other matter should be noted at the outset. The primary judge made emphatic credit findings, both adverse to the appellant and in favour of the respondent at J[115]:

13. [25]

    The manner in which the witnesses gave evidence played some part in those credit findings; see, e.g., at J[87]. However, as to the respondent, the credit finding in his favour turned largely on the support his evidence drew from his clinical notes. The primary judge accepted the respondent’s evidence about his usual practice of recording contemporaneous notes during consultations, the appellant having confirmed that the respondent took notes during each and every consultation: J[89] and [90]. His Honour said he had “no hesitation in accepting the defendant’s clinical notes … in preference to the plaintiff’s recollection, where there is a dispute about what occurred in any given consultation.” To the extent that the appellant submits that there were inconsistencies in details between different accounts given by the respondent at different points in time (appellant submissions at pars 32-33), that submission does not answer this reasoning. In any event, the claimed inconsistencies, if they were inconsistencies at all, were inconsequential.

14. [26]

    As to the appellant, the adverse credit finding turned on a number of matters unconnected with demeanour. These included conflict between his evidence and the respondent’s contemporaneous notes (e.g., J[94]-[96], [99], [103], J[109], [110]); that the appellant was prone to exaggeration when he thought it would assist his case (J[97], [105]); and inconsistency with objective facts, such as the records of the appellant’s GP with respect to the extent of the appellant’s pain (J[105]).

15. [27]

    There was no direct challenge to those adverse credit findings on the appeal. The furthest the appellant went was to suggest that if the stem was in fact loose at the time of the appellant’s consultations with the respondent, that fact would give some support to the appellant’s account of what he told the respondent, such that the credit findings might have to be reconsidered. But, as will be seen, there is a chicken-and-egg aspect to that submission.

Grounds of appeal

1. [28]

   The notice of appeal contains the following grounds:

   1. (1)

      “The primary judge erred in overlooking or rejecting radiological expert evidence as to what imaging obtained during the period from August 2011 to 2017 showed as to loosening or movement in the appellant’s femoral stem.”

   2. (2)

      “The primary judge erred in finding that there was no loosening or movement in the appellant’s femoral stem from August 2011 to 2017.”

   3. (3)

      “The primary judge erred in finding that the respondent discharged his duty of care to the appellant, when checking the femoral stem for loosening during the revision procedure on 30 August 2011.”

   4. (4)

      “The primary judge erred in finding that the appellant would not have achieved a materially better outcome even if a conventional femoral stem had been implanted during the revision procedure on 30 August 2011.”

   5. (5)

      “The primary judge erred in finding that the respondent discharged his duty of care to the appellant in consultations between the revision procedure on 30 August 2011 and prior to the last consultation on 28 March 2019, despite the respondent in each consultation between that period not detecting, investigating or recommending revision surgery to treat signs of loosening or movement in the femoral stem.”

   6. (6)

      “The primary judge erred in finding that the appellant would not have achieved a materially better outcome even if a conventional femoral stem had been implanted during the period from 30 August 2011 until May 2019.”

2. [29]

   It should be noted that, as the argument was put, Grounds 1 and 2 both concern two different time periods: the position at the time of the Revision Surgery, and the position during the management phase over several years thereafter. Distinct issues arise as to both periods. In light of the ways in which the argument was developed, it is convenient to begin by addressing Grounds 1 and 2 together as at the time of the Revision Surgery. That is the substance of Question 1 identified at [4] above.

First dispositive question: was the stem “loose” at the time of the Revision Surgery (Grounds 1, 2 and 3)?

1. [30]

   It is important to understand the context in which the Revision Surgery took place. The MSA short stem device consisted of separate components: a tapered stem, a modular neck, a head and an acetabular cup. The respondent gave evidence about the device’s characteristics. He said it was modular and capable of being tailored to the requirements of the particular patient. The respondent said that it was typical for there to be some minor subsidence (that is, movement of the stem downwards into the femur towards the feet) around 6 to 12 weeks after the surgery. The original surgery was on 10 May 2011. By reference to his clinical record for 22 June 2011, the respondent gave evidence that he had observed on an x-ray made that day that “the stem was loading on the medial side and there was that little minimal bit of subsidence that I referred to earlier which is very typical of these MSA stems as they completely lock home into their final position so it loads the medial bone.” Tcpt, 20 March 2024, 386.44-7.

2. [31]

   The respondent gave evidence that when the appellant next consulted him on 1 August 2011, the appellant, who had brought further x-rays made that day, stated that he was finding the inequality in his leg length intolerable. The respondent said that he had observed a difference between the x-rays of 22 June and 1 August 2011 as follows: “he’d had a stress fracture of the medial calcar that appeared to be healed, that his implant had stabilised, and his leg length had shortened approximately 11 mm at the neck.” Tcpt, 20 March 2024, 388.42-5. The respondent ordered a CT scan. He gave evidence, again by reference to his clinical record, that he had thought the appellant “should have a revision, possibly just to the head and neck [of the MSA short stem device], but at St Vincent’s I always have stems available.” Tcpt, 389.11-12. A possible explanation for the stress fracture was that the appellant had told him that he had stumbled backwards off a step in rehab. Referring to the imaging, the respondent said: “there’d been a change in the position of the implant and it was clearly due to a calcar fracture, which I therefore assumed related to that off-the-cuff reported stumble backwards off a step as part of his exercises in rehab.” Tcpt, 390.6.

3. [32]

   The effect of that evidence was that at the time of the revision surgery on 30 August 2011, the respondent understood that the implant had moved from its initial position (both because of minor subsidence as the stem locked home, and later because of the calcar fracture); that revision was required at least to address the leg length inequality; but that the imaging was consistent with the stem’s having stabilised in place (“stable” being the opposite of “loose”). It was common ground that in that situation (a) an orthopaedic surgeon exercising reasonable care must take appropriate steps in the course of the surgery to determine whether the stem of the device was in fact stable, but (b) if that proved to be so, it would not be necessary for the surgeon to replace the stem when performing the Revision Surgery. It was not suggested in the expert orthopaedic evidence that there was anything intrinsically wrong with that approach. In particular, it was not suggested that the fact that there had been movement or looseness in the stem prior to the Revision Surgery meant that the stem must be loose at the time of that surgery.

4. [33]

   To the contrary, the joint expert report contained the following statements in answer to Question 7, which asked what steps a competent orthopaedic surgeon should have taken during the Revision Surgery to be satisfied that the stem was not loose:

5. [34]

   Against that background, the primary judge made findings about the steps that the respondent took in order to determine whether the device was stable in the course of the Revision Surgery. His Honour accepted the respondent’s evidence about the steps he in fact took, and, in light of the orthopaedic experts’ evidence, his Honour found that those steps were sufficient to discharge the respondent’s duty to take reasonable care.

6. [35]

   The respondent gave evidence that he had an actual recollection of performing the particular Revision Surgery upon the appellant. He said that the case had “a very unique history”: Tcpt, 20 March 2024, 404.12. He recalled feeling pleased that he had interpreted the imaging studies correctly. He said that he observed that the stem was stable, “implying that the stem had impacted into a new position, the fracture had healed and bonded onto the implant, yet again, in its new, for want of a better term, steady state or stable position, which is the nature of the taper implant.” Tcpt, 404.29-3. In cross examination, the following exchange took place:

7. [36]

   Although the primary judge did not expressly refer to that evidence, he plainly accepted it: “The defendant submitted that I should accept the defendant’s evidence as [to] the steps which he undertook during the Revision Surgery. For the reasons which follow, I have little hesitation in accepting the defendant’s evidence as to those steps”: J[66]; see also [69]. There were two main aspects to the reasoning that followed.

8. [37]

   First, his Honour referred at J[67] to the respondent’s evidence about his usual practice. The respondent had performed in the order of 400 revision surgeries, which he said he always performed in the same particular way. The primary judge noted that the respondent described his process in detail, including the steps which he said he always took to determine the stability of the stem. The respondent gave evidence that he had no doubt that he had followed his usual practice, which he likened in cross-examination to the systematic processes that pilots follow: J[68].

9. [38]

   Secondly, the primary judge relied on the surgical report of the Revision Surgery, which recorded “stem not loose”. His Honour referred to the respondent’s evidence that he had discussed the operation with his surgical assistant, Dr Grieve, while Dr Grieve was writing the report; that the respondent then checked the report; and that he made his own additions to it: J[67]. As to the appellant’s submission that the report did not record any steps taken by the respondent to determine the stability of the stem, his Honour accepted the respondent’s explanation that the report was an overall review of what happened during the operation, rather than an attempt to record everything which had happened during the procedure: J[70].

10. [39]

    The evidence that the respondent had given about the steps he took in the course of the Revision Surgery was put to the orthopaedic experts when giving concurrent evidence. The primary judge considered it of crucial significance that the joint view of the orthopaedic experts Dr Doig and Dr O’Sullivan was that those steps were “a reasonable way to assess whether the femoral stem was loose”: J[72].

11. [40]

    On its face, this evidence of the orthopaedic experts went to the question of breach (i.e., whether the respondent’s performance of the Revision Surgery met the standard required of an orthopaedic surgeon exercising reasonable care), rather than to the underlying question whether the stem was loose.

12. [41]

    But the argument at the hearing of the appeal went further. It was conducted on the basis that if the stem had in fact been loose, the steps which the respondent said he took would have revealed that fact. It followed that if, as his Honour found, the respondent did in fact take those steps when performing that Revision Surgery and they did not reveal that the stem was loose, it was not loose.

13. [42]

    Ground 1 is: “The primary judge erred in overlooking or rejecting radiological expert evidence as to what imaging obtained during the period from August 2011 to 2017 showed as to loosening or movement in the appellant’s femoral stem.”

14. [43]

    The appellant accepted that success on Ground 1 was significant only to the extent that it flowed through to Ground 2, which is: “The primary judge erred in finding that there was no loosening or movement in the appellant’s femoral stem from August 2011 to 2017.”

15. [44]

    Before addressing so much of Grounds 1 and 2 as concern the Revision Surgery, several points should be noted.

16. [45]

    First, it is necessary to say something about terminology.

17. [46]

    The evidence and submissions were expressed in terms of whether the device was “loose” at a particular point in time. For this purpose “loose” should be understood as the opposite of “stable”, in the sense of the device being securely fixed in place.

18. [47]

    It does not appear to have been disputed that areas of what is termed “lucency” or “rarefaction” on an x-ray identify areas of lower density. Lucency may be an indicator that there is a risk that the device is loose, but it is by no means determinative. The respondent explained in cross-examination: “Lucency means there may be some loss of bone in the area. It doesn’t have to be loose to have that, you can have it as isolated pockets.” Tcpt, 25 March 2024, 576.22-4. He had earlier said in chief, “An x-ray is a two-dimensional representation of a three-dimensional structure so you have to look at multiple imaging studies to see if bone is growing in all surfaces. An implant can be stable with just a spot weld, but it is much more pleasing to see bone growing on all four surfaces of the implant.” Tcpt, 20 March 2024, 407.46-9.

19. [48]

    It was also not disputed that radiological imaging can show a change in a device’s position when compared with imaging from an earlier time, what the parties described as “movement”. The fact that there has been movement in the sense of a change in a device’s position may again be an indicator that the device is (or at least has been) loose, but again it is not determinative.

20. [49]

    At times the evidence referred to “radiological looseness”. That term was used as a shorthand to mean that some aspect of the radiological imaging, such as a lucency, was consistent with the device being loose. “Radiological looseness” in that sense is to be distinguished from a determination that a device is actually loose.

21. [50]

    Secondly, and following from the point just made, it was also common ground that radiological evidence is not necessarily conclusive of the question whether a device is “loose”. Short of carrying out tests such as those that the respondent said he performed in the course of carrying out the Revision Surgery, looseness might be determined by correlating the radiological evidence with a clinical examination and exploration of the patient’s history of functionality. Even then, Dr Doig (called by the appellant) said that radiological reports were of less importance diagnostically than clinical examination and exploration of the patient’s history of functionality taken by that surgeon: J[144]. The highest the appellant (who relies heavily on the radiological evidence) put it is that, for the purposes of the judicial assessment of probabilities, in the absence of clear evidence to the contrary, looseness can be established on the radiology alone. There was, however, powerful evidence to the contrary in this case, being the respondent’s evidence of his usual practice, his recollection of the surgery and the surgical report.

22. [51]

    Thirdly, it is difficult to see how even if Ground 1 succeeded, any failure on the part of the primary judge properly to consider the radiological evidence could result in success on Ground 2, in light of the following matters.

    1. (1)

       The accepted limitations of the radiological imaging; in particular, that it was not conclusive of whether the device was loose at the time of the Revision Surgery.

    2. (2)

       The primary judge’s emphatic acceptance of the respondent’s evidence that the device had not been loose at the time of the Revision Surgery, and of his evidence about the steps he took in the Revision Surgery to determine whether that was so.

    3. (3)

       His Honour’s largely unchallenged reasons for accepting that evidence, including the respondent’s evidence of a highly developed practice in performing revision surgeries and the statement in the surgical report “stem not loose”.

    4. (4)

       The orthopaedic experts’ agreement that the steps taken were reasonable to assess whether the device was loose.

    5. (5)

       The parties’ agreement that if taken, those steps would have revealed that the stem was loose if in fact it was.

23. [52]

    Fourthly, the appellant accepted that orthopaedic surgeons have expertise in interpreting radiological imaging which is equal to that of a specialist radiologist. That being so, the opinions of the two expert orthopaedic surgeons about the imaging were no less significant than the opinion of Professor Thomson.

24. [53]

    Fifthly, when addressing the Revision Surgery, the primary judge referred neither to the evidence of Professor Thomson, nor to that of the orthopaedic surgeons, about the imaging. Nor did his Honour make an express finding addressing whether the stem was loose (although a finding that it was not loose is implicit in his other findings).

25. [54]

    That his Honour did not refer to the radiological imaging when addressing the Revision Surgery may be explicable because of the way in which the agreed issues had been framed. The primary judge’s consideration of the Revision Surgery took place under the heading, “Issue 2 — Steps Taken During the Revision Surgery to Identify and Eliminate Loosening”. The primary judge explained that issue at J[62]:

26. [55]

    The focus of that issue was very much the question of breach: whether the respondent had exercised reasonable care by taking the necessary steps to check that the stem was not loose. To the extent that the primary judge is now said to have erred by overlooking or rejecting radiological expert evidence of Professor Thomson said to be relevant to a different question, whether the stem was in fact loose at the time of the Revision Surgery, the fact that his Honour did not advert to that evidence must be seen in light of the focus of Issue 2 as agreed by the parties. It is also significant that the radiological evidence of Professor Thomson was not put to either orthopaedic expert in the course of their concurrent evidence. Nor was the respondent cross-examined on Professor Thomson’s opinions, either at all or (significantly) in connection with what occurred during the course of the Revision Surgery.

27. [56]

    Sixthly, although the appellant’s argument under Grounds 1 and 2 was directed both to the position at the time of the Revision Surgery and to the period of several years after it, the argument, particularly in the appellant’s written submissions, located the claimed error specifically in J[145] and [151]. But those paragraphs were addressing the question whether there was any movement of the stem “after August 2011 until 2017”: J[145]. The reference at J[151] to “movement in the stem from August 2011 to 2017” must be read as being to the same effect. That is clear from the context in which the primary judge made the findings at J[145] and [151], which was under the heading “Issue 4 — Consideration of Radiographic Imaging”. His Honour began consideration of that issue by summarising the appellant’s submissions at J[139]:

28. [57]

    The primary judge’s reasoning at J[145] and [151] was thus directed to the period after the Revision Surgery and to whether the respondent failed to interpret the radiological evidence as showing “progressive” loosening of the stem from that time. It will be necessary to return to the radiological evidence when addressing the appellant’s case about the period of ongoing management after the Revision Surgery. But to the extent that the appellant’s attack on J[145] and [151] is directed to the position at the time of the Revision Surgery, it misfires.

29. [58]

    Seventhly, there is a further difficulty, both with the orthopaedic experts’ evidence and with that of Professor Thomson, in that the questions that they were asked and the answers that they gave did not always clearly distinguish between the period prior to the Revision Surgery, the situation on the day of the Revision Surgery, and what occurred afterwards.

30. [59]

    The appellant complains that the primary judge misinterpreted the expert evidence about the radiological imaging and in any event did not take it into account when addressing the Revision Surgery. It is convenient to deal first with the orthopaedic experts and then with Professor Thomson.

31. [60]

    As to the period before the Revision Surgery, the joint orthopaedic expert report drew a distinction between the x-rays performed between 31 May 2011 and 22 June 2011, that is, prior to the Revision Surgery, and the x-rays after the Revision Surgery. In relation to the former period, the joint expert report states as follows in answer to Question 4.

32. [61]

    In response to Question 6 (should a competent orthopaedic surgeon have detected loosening of the femoral stem by reference to radiological imaging and the clinical presentation prior to the Revision Surgery in August 2011), the joint orthopaedic expert report stated:

33. [62]

    As to the position at the time of the Revision Surgery, while the expert orthopaedic surgeons answered questions in their joint report about the radiological imaging after the Revision Surgery, the questions they were asked were not specifically directed to determining whether the device was loose as at 30 August 2011.

34. [63]

    Question 8 asked whether a competent orthopaedic surgeon should have compared various sets of x-rays in consultations at different points in time.

    1. (1)

       In answer to Question 8(a), which concerned x-rays made on 31 May 2011 and 22 June 2011 (i.e., prior to the Revision Surgery on 30 August 2011), “Dr Doig noted that, in terms of the x-rays set out in (a), the experts have already noted in answer to a previous question that there was a significant difference.”

    2. (2)

       However, in relation to the x-rays in Question 8(b) to (d), which included the x-rays most proximate in time before and after the Revision Surgery, being those on 1 August 2011 and 14 October 2011, “Dr Doig observed that each one of those x-rays shows the same thing: that the prosthesis has collapsed into varus and there is rarefaction on the lateral aspect and there’s pedestal formation distally.” Further, “Dr Doig observed that all the other x-rays [which he had seen] do not show a marked difference, except for the longer head after the revision procedure that still show that the stem is there.”

    3. (3)

       The joint report then recorded:

35. [64]

    That evidence was evidently not directed to determining whether the stem was loose as at the time of the Revision Surgery. But both experts referred to the two indicators of potential looseness shown in the radiological imaging: rarefaction/lucency and movement or shifting in the sense of change of position. Neither expert suggested that there had been any significant change in either respect since 22 June 2011. Dr Doig’s answers concerning the x-rays before and after the surgery were that “each one of those x-rays shows the same thing”, i.e., the same as the 22 June 2011 x-ray; and that they “do not show a marked difference”. That is not evidence of looseness. Dr O’Sullivan’s answers were to similar effect: “there has been no real material change in the x-rays”; “the actual position of the implant … has not shifted since the initial x-rays” (which appears to mean, at the latest, since June 2011); and “there has been no stem subsidence other than the initial subsidence”. As discussed further below in relation to the second dispositive question, in their oral evidence the two orthopaedic experts confirmed that there was “no radiological movement of the stem” after August 2011 until 2017: Tcpt, 20 June 2024, 624.36-7; 624.41.

36. [65]

    Question 9 asked whether lucency could be identified in any of a series of x-rays starting on 22 June 2011 and including 1 August 2011, 30 August 2011 and 14 October 2011. The joint answer was that lucency adjacent to the lateral femoral stem could be identified in all of those x-rays. Question 10 then asked, without reference to any particular x-ray, “What is the significance of a finding of lucency adjacent to the lateral femoral stem?” The joint answer was:

37. [66]

    In light of the earlier answers to Questions 4 and 8, the words “there has been a loosening and … there has been a material shift” appear to be addressing the position since the first of the x-rays provided to the experts, being that of 31 May 2011, rather than any later period.

38. [67]

    Finally, Question 14 asked, “Despite Dr Woodgate’s operative findings on 30 August 2011, is there radiological evidence of femoral stem loosening on the x-ray dated 14 October 2011 and the subsequent x-rays dated 8 March 2012 and 14 August 2015?” The joint answer was:

39. [68]

    It should be noted that that question was not in terms directed to challenging “Dr Woodgate’s operative findings on 30 August 2011” (i.e., that the stem was not loose), but rather asked whether the subsequent x-rays provided evidence of loosening notwithstanding what the respondent had found on 30 August 2011. In light of the form of the question (“is there radiological evidence”), the words, “Radiologically the stem was loose” should be understood as saying that the radiological imaging was consistent with the stem being loose, rather than that the stem was necessarily in fact loose. The relevant “evidence” was, apparently, the “lucency adjacent to the lateral femoral stem” which had appeared in all the x-rays on and after 22 June 2011 referred to in Question 9.

40. [69]

    In the result, the orthopaedic experts should not be understood as interpreting the radiological imaging as demonstrating that the stem was in fact loose at the time of the Revision Surgery. To the contrary, it appears from the following exchanges that at least Dr O’Sullivan affirmatively reached the contrary view:

41. [70]

    The evidence of Professor Thomson was contained in four expert reports. In his first supplementary report of 14 October 2021, he was asked to comment on the significance of the appellant’s post-operative radiological imaging and to consider the likely causes of such a radiological appearance. Professor Thomson’s answer to this question indicates that he interpreted “post-operative” as meaning after the original hip replacement surgery that the respondent performed on 10 May 2011. Professor Thomson’s answer was as follows.

42. [71]

    Professor Thomson wrote in response to the question “Based on the radiological findings, do you consider it more likely than not that Mr Taylor’s femoral stem was loose? In your response, would you please consider whether there was further progression of the stem following the revision surgery in August 2011”:

43. [72]

    Professor Thomson expressed opinions in his second and third supplementary reports (both of 4 October 2023), which focused on the position as at June 2011 and which do not advance the matter.

44. [73]

    Ground 1 is that the primary judge erred by overlooking or rejecting that evidence, relevantly, with respect to the question whether the device was loose at the time of the Revision Surgery.

45. [74]

    As to the assertion that the primary judge erred by overlooking Professor Thomson’s evidence, it is difficult to accept that criticism when the appellant’s case was not put to the primary judge in the way in which it is sought to be articulated on appeal. The focus of what was identified as Issue 2 was not whether the stem was in fact loose, but whether the respondent took reasonable steps during the Revision Surgery to determine whether it was loose. That is consistent with the fact that Professor Thomson’s opinions referred to above were not put to the orthopaedic experts, or to the respondent himself. Nor was Professor Thomson cross-examined. Nor was any particular submission made to the primary judge based on Professor Thomson’s evidence to the effect that the device was loose as at the time of the Revision Surgery. The appellant’s closing submissions as to the radiological evidence (see pars 160-168) did not separately address the position as at the Revision Surgery. The summary submission at par 197(a) of those written submissions that the femoral stem was loose at the time of the Revision Surgery was not connected specifically to the radiological evidence but rather was said to flow from “all of the evidence”.

46. [75]

    As to error in rejecting Professor Thomson’s evidence, parts of Professor Thomson’s evidence to which the appellant took the Court might be read as saying that the device was necessarily in fact loose at the time of the Revision Surgery (as opposed to saying that the imaging was some evidence from which to draw that inference). In particular:

    1. (1)

       “the operation note states ‘… stem not loose’ … [t]he X-rays however show a 3.5mm gap appearing … in the interval from 31 May 2011 and 22 June 2011 which can only be explained by loosening”; and

    2. (2)

       “the loosening was progressive from the original tilting seen in May 2011 and continued after the first revision of the prosthesis”.

47. [76]

    See also, Professor Thomson’s answer to Question 7 in his second supplementary report dated 4 October 2023.

48. [77]

    If those parts of Professor Thomson’s evidence are read as stating an opinion, based on the x-rays, that the device was necessarily in fact loose on 30 August 2011, the evidence collides with the following matters, each of which is a sufficient reason for rejecting it:

    1. (1)

       The implied premise — that in the circumstances of this case, the radiological imaging alone was sufficient to reach a definitive conclusion that the device was loose on 30 August 2011 — is itself mistaken. The appellant accepted that radiological imaging is not necessarily conclusive to establish that a device is in fact loose, and that that inference should not be drawn at least where there is clear evidence to the contrary.

    2. (2)

       There was very clear evidence to the contrary here about what occurred during the Revision Surgery itself, given by the respondent, and accepted by the primary judge. Professor Thomson’s evidence did not address that evidence; he said “I am not qualified to comment on the operative method Dr Woodgate applied to convince himself that the femoral stem [of] the prosthesis was not loose.”

    3. (3)

       Even as to what was to be drawn from the imaging itself, the evidence of the orthopaedic experts does not support Professor Thomson’s conclusion, and (at least) that of Dr O’Sullivan contradicts it. Nor did Professor Thomson’s evidence address the respondent’s evidence referred to above that “[a]n implant can be stable with just a spot weld”. It is apparent from the context (“but it is much more pleasing to see bone growing on all four surfaces of the implant”) that a “spot weld” here means bone growing on one surface of the device, even if there is a gap around other surfaces. A “spot weld” might not be apparent on an x-ray, which, as the respondent pointed out in the same answer, “is a two-dimensional representation of a three-dimensional structure so you have to look at multiple imaging studies to see if bone is growing in all surfaces.”

49. [78]

    If, on the other hand, Professor Thomson’s reports are read as stating no more than that the imaging was evidence that the device was loose, that is consistent not only with the evidence of the orthopaedic surgeons, but also with the primary judge’s approach to the issue. That is, that an orthopaedic surgeon exercising reasonable care would take reasonable steps during the surgery to verify whether the device was in fact loose, and that the respondent had done so. That process of reasoning does not involve rejecting Professor Thomson’s evidence, but rather acknowledges its limitations.

50. [79]

    With respect to the position as at 30 August 2011, the appellant has not established that the primary judge erred, either by overlooking or by rejecting the expert evidence of Professor Thomson (or, for that matter, that of Dr Doig or Dr O’Sullivan).

51. [80]

    But even if there were such an error (Ground 1), the appellant has not taken the necessary further step of showing error in the primary judge’s implicit finding that, as at 30 August 2011, the device was not loose (Ground 2). The appellant bore the onus. The radiological evidence was not conclusive, and there was ample direct and indirect evidence that the device was not loose. That included the written report of the Revision Surgery, the respondent’s powerful evidence of usual practice, his direct evidence recalling the steps he took during the surgery, and the orthopaedic experts’ evidence that the steps the respondent took were reasonable to determine whether the device was loose. In light of that evidence, which the primary judge accepted, and the common ground that the steps the respondent took would have revealed any looseness, there was no error in his Honour’s implicit finding that the device was not loose on 30 August 2011.

52. [81]

    The appellant also put his argument as to Ground 2 in a way that did not depend upon the success of Ground 1. The argument was that if the device was loose before the Revision Surgery (in June 2011), and also loose after the Revision Surgery (in October 2011), the inference should be drawn that it was loose at the time of the Revision Surgery. In that connection, the appellant submitted: “There certainly [was] no evidence adduced by the defendant to suggest that there is an explanation as to how it could be loose before and after, but not on that particular day when they did the operation on 30 August.” Tcpt, 28 October 2025, 25.50-26.2.

53. [82]

    The argument should not be accepted.

    1. (1)

       First, even accepting the premises of the argument (looseness before, looseness after, and no explanation for how that could happen consistently with stability on 30 August 2011), the inference would not be drawn in light of the strong evidence to the contrary about what occurred on 30 August 2011.

    2. (2)

       Secondly, the premises should not be accepted in any event. As to the period before the Revision Surgery, as discussed above, there was evidence explaining the device’s movement prior to 22 June 2011, consisting of initial subsidence (as was typical with MSA short stem devices) and then the calcar fracture. The orthopaedic experts agreed that it was perfectly possible for the device then to become stable. As to the period after the Revision Surgery, the proposition that the device was loose in October 2011 (as opposed to several years later) is very much contested. The appellant accepted that it was possible for a device to become loose after having been stable for some period of time. Tcpt, 28 October 2025, 26.17-8. It was not suggested that this could not happen in the ordinary course.

54. [83]

    Insofar as they concern the position as at 30 August 2011, Grounds 1 and 2 are not made out.

55. [84]

    Ground 3 is:

56. [85]

    The appellant’s strategy was to attempt to unpick the primary judge’s finding of no negligence (Ground 3) by showing that the stem was in fact loose during the Revision Surgery (Ground 2), which finding was in turn said to follow from the radiological evidence (Ground 1). The appellant argued that if the Court found that the femoral stem was loose during the Revision Surgery, it must follow that the respondent did not adequately test for looseness. Neither the respondent nor the expert orthopaedic surgeons suggested that a surgeon exercising reasonable care could fail to detect that the device was loose if in fact it was.

57. [86]

    However, the appellant accepted that the converse was also true: if he failed to show that the device was loose at the time of the Revision Surgery, he could not succeed on his claim based on negligence in conducting the surgery itself. The appellant’s concession was rightly made.

    1. (1)

       The primary judge’s finding that there was no negligence in the Revision Surgery was based on his acceptance of a substantial body of evidence about what occurred, including as to the steps the respondent said he took to check the stem for loosening. Unless the appellant established that the stem was loose at the time, which would be inconsistent with his Honour’s findings about the steps the respondent took during the surgery, there was no substantial basis upon which to challenge those findings. It was accepted that if the findings as to the steps the respondent took were not disturbed, there was no negligence.

    2. (2)

       In any event, it is not easy to see how a failure to exercise reasonable care to check whether the femoral stem was loose could cause loss unless the stem was in fact loose.

58. [87]

    The appellant has failed to show that the stem was loose at the time of the Revision Surgery (Ground 2). There was accordingly no error in the finding that the respondent discharged his duty of care to the appellant when checking the stem for loosening during the revision procedure on 30 August 2011. Ground 3 is not made out.

Second dispositive question: did the stem become loose at some time in the period between the Revision Surgery and 2017 (Grounds 1 and 2)?

1. [88]

   This question requires consideration of issues similar to those arising under Grounds 1 and 2 as discussed above, but at a later period in time.

2. [89]

   The appellant submitted at the hearing of the appeal that his case that the respondent was negligent in his post‑operative management of the appellant after 30 August 2011 is much harder to establish than his case of negligence in the course of the Revision Surgery. Whether or not that is so is debatable. In any event, this second case faces several difficulties.

3. [90]

   First, the appellant’s argument on this aspect of the appeal again substantially depends on Professor Thomson’s interpretation of the radiological imaging. However, (1) radiological imaging alone is insufficient to establish that the stem was loose in the period about which complaint is made; and (2) (depending on how one reads Professor Thomson’s reports) the orthopaedic experts took a different view from Professor Thomson in any event.

4. [91]

   Secondly, whatever support the appellant’s argument gains from the radiological evidence, it must overcome the primary judge’s findings as to what the appellant said in consultations with the respondent and the appellant’s clinical presentation more generally. Those findings were largely based on acceptance of the respondent’s evidence (itself informed by his clinical records), and involved unequivocal credit findings adverse to the appellant. The credit findings are not directly challenged.

5. [92]

   However, as noted above, the appellant faintly submitted that if the Court found that the stem was loose in the period after August 2011, that might lead to a re-assessment of the credit findings. The suggestion was that if the stem was loose, that would be an objective circumstance which increased the probability that the appellant told the respondent the things he claims to have said about the restrictions on his movement and the extent of the pain he was suffering. The argument was that that would in turn bolster the appellant’s credit. There are at least two difficulties with this argument.

   1. (1)

      One is that the argument is no answer to so much of the primary judge’s credit findings as was based on the primary judge’s opportunity to observe the appellant and the respondent in the witness box.

   2. (2)

      The other is the chicken-and-egg problem referred to above. The appellant argues that the credit findings depend, in part at least, on an implied finding that the stem was not loose. Part of the basis for that finding was a series of anterior findings about the appellant’s clinical presentation, which the appellant must overcome in order to establish that the stem was in fact loose. But the findings about clinical presentation were in part based on his Honour’s credit findings, which is the very thing the appellant seeks to overturn.

6. [93]

   Thirdly, even if there was some loosening in the femoral stem in that period, in light of the primary judge’s findings about the appellant’s clinical presentation, it would not necessarily follow that there was negligence in failing to detect the loosening and/or to advise that further revision surgery was necessary. That is the subject of Ground 5.

7. [94]

   The primary judge’s reasoning on this issue at J[145] and [151]-[153] is set out above.

8. [95]

   As to J[145], the appellant submits that his Honour misunderstood the effect of the orthopaedic experts’ evidence when he said that it could not be reconciled with that of the radiological expert Professor Thomson. In particular, the appellant disputes that the effect of the orthopaedic experts’ evidence was “that there was no radiological movement of the stem after August 2011 until 2017”: Tcpt, 28 October 2025, 17.49-50. The appellant does so by extracting various statements in the joint report from the context of the question which the experts were asked. This has the effect of blurring the distinction between the period before the Revision Surgery and the period after it.

9. [96]

   For example, the appellant submits at subpar 18(c):

10. [97]

    But the passage of the joint report cited for this proposition (responses to Questions 9 and 10) does not distinguish between the periods before and after the Revision Surgery. In particular, the answers to those questions do not say when the “loosening” occurred.

11. [98]

    By contrast, when answering Question 8 in the joint report, Dr Doig distinguished between:

    1. (1)

       “the x-rays set out in (a)” (being the x-rays performed on 31 May and 22 June 2011), about which he said, “the experts have already noted in answer to a previous question that there was a significant difference”; and

    2. (2)

       the subsequent x-rays, of which he said “each one of those x-rays shows the same thing: that the prosthesis has collapsed into varus and there is rarefaction on the lateral aspect and there’s pedestal formation distally”, and “all the other x-rays do not show a marked difference, except for the longer head after the revision procedure that still show that the stem is there.”

12. [99]

    (It should be noted that, to the extent that the appellant seeks to rely at subpar 18(h) on opinions expressed by Dr Doig before the joint report, on the basis that he did not depart from his earlier opinions and was not challenged on them in the course of the concurrent oral evidence, the submission should be rejected. The purpose of a joint report is to record the experts’ mature opinions having the benefit of each other’s views in the course of a conclave. To the extent that there is a material difference between an expert’s opinions stated in an earlier report and the same expert’s opinions in a joint report, the parties and the court are generally entitled to proceed on the basis that the earlier opinions are superseded. However, there is no material difference in this case in any event.)

13. [100]

    Dr O’Sullivan’s answers to the same question were similar: that “there has been no real material change in the x-rays” and “the actual position of the implant has not shifted much and, specifically, it has not shifted since the initial x-rays” (which was clearly a reference to the x-rays of 31 May and 22 June 2011).

14. [101]

    The appellant also submits at subpars 18(f) and (g):

15. [102]

    The answers in the joint report cited in support of these submissions were as follows:

16. [103]

    As to the appellant’s submission at subpar 18(f) that “Both experts agreed that … ‘radiologically the stem was loose’”, this omits the important point in the first sentence of the answer to Question 14: that the position of the implant remained largely unchanged. More importantly, the statement, “radiologically the stem was loose,” must be understood as a shorthand way of stating, consistently with the language of the question, that there was “radiological evidence of femoral stem loosening”. That is very different from stating an opinion that the device was in fact loose.

17. [104]

    As to the appellant’s submission at subpar 18(g), what was “made clear at Blue 1:143R” (i.e., the answer to Question 19) was not that the “clinical presentation does not detract from the existence of stem looseness.” To the contrary, the point made in the answer to Question 19 was that the radiological imaging alone was not enough to reach a conclusion about “the existence of stem looseness”. Instead, whether to reach that conclusion would depend on the clinical presentation. On the set of assumptions as to the appellant’s clinical presentation after the Revision Surgery given to Dr O’Sullivan (which were substantially in accordance with the findings made by his Honour), both orthopaedic experts agreed that there was “no clinical suspicion of loosening”. That conclusion did not merely “detract” from any radiological evidence that the stem might be loose; it contradicted “the existence of stem looseness”.

18. [105]

    The existence of lucency on the imaging was thus a reason to “watch and wait”. As the experts said in their answer to Question 13:

19. [106]

    The distinction between “an abnormal radiological finding” such as lucency (that is, an absence of bone density), which indicates that a device might potentially be loose, and actual looseness is significant. As noted above in relation to the first dispositive question, when the two experts gave concurrent evidence, the following exchange took place:

20. [107]

    That is the evidence to which the primary judge referred at J[145] and [151]. The appellant attempts to explain away that evidence by submitting that “here they appear to have been drawing a distinction between the situation after August 2011 and the considerable movement that had occurred between May and June 2011.” That was precisely the distinction being drawn in the orthopaedic experts’ joint report and in their oral evidence: that “the situation after August 2011” was one in which the radiological evidence showed there had been no movement of the stem.

21. [108]

    The appellant submits that the experts were not taken to, and did not address, the part of the report of Professor Thomson quoted at [71] above.

22. [109]

    The first point to be made is that, if, as the appellant submits, Professor Thomson’s evidence is to be treated as evidence that the stem was in fact loose, then, contrary to the appellant’s submission, that evidence cannot be reconciled with the evidence of the orthopaedic experts referred to above. That was the primary judge’s point at J[145].

23. [110]

    But it is again not necessary to read Professor Thomson’s evidence in that way. His evidence should instead be read as stating no more than that the radiological evidence was consistent with the device’s being loose. However emphatically it may have been expressed, Professor Thomson’s evidence is subject to the same limitations inherent in other evidence interpreting radiological imaging. His opinion that there had been a “progressive” “loosening” was based on the existence and gradual expansion of a “gap”, that is, a lucency on the image. Professor Thomson’s measurements concerned the size of the lucency. As noted above, lucency suggests a loss of bone in the particular area. It does not necessarily mean that the device has in fact become loose.

24. [111]

    Dr O’Sullivan explained the significance of lucency in his oral evidence as follows:

25. [112]

    That answer made clear that the question whether there was in fact “loosening” could not be determined (at least in this case) on the imaging alone, but depended on the “clinical picture”.

26. [113]

    If Professor Thomson’s evidence is read as evidence of lucency consistent with potential loosening, a finding that the stem had not in fact become loose does not logically require that Professor Thomson’s evidence be rejected. Instead, the decisive question becomes the clinical picture.

27. [114]

    The primary judge nevertheless preferred the evidence of the orthopaedic surgeons to that of Professor Thomson at J[150]-[153]. The appellant challenges the basis upon which the primary judge did so. Although, for the reason just given, it is not ultimately necessary to address that issue, it suffices to say that the challenge does not succeed. Contrary to the appellant’s submission at par 26, his Honour did not conflate the question whether the stem was in fact loose with the question whether the respondent ought to have detected looseness. The section of the judgment in which the relevant passages appear was not principally directed to the former issue. Instead, it was concerned with an allegation of negligence — in particular, as his Honour said at J[139], the appellant’s submission “that the defendant failed to interpret radiological evidence of progressive loosening of the femoral stem in consultations as early as 14 October 2011 and until August 2017.” It was for that reason wholly understandable that his Honour referred to the degree of care and skill required of a reasonable orthopaedic surgeon (at J[152]) as opposed to that of a specialist radiologist (at J[153]).

28. [115]

    To the extent that Ground 1 asserts that the primary judge erred in overlooking or rejecting radiological expert evidence as to loosening or movement in the appellant’s femoral stem in the period after the Revision Surgery until 2017, the ground is not made out.

29. [116]

    The determinative issue as to whether the stem was loose in the period after the Revision Surgery until 2017 is thus the evidence concerning the appellant’s clinical presentation. The joint report made clear at many points that this was the critical issue.

30. [117]

    A focus at trial and in the primary judge’s reasons was the extent to which the appellant had been able to play squash and other sports after the Revision Surgery, and what that signified as to whether or not the device was loose.

31. [118]

    The latter question was a matter for the orthopaedic experts. The primary judge found at J[123]:

32. [119]

    Those findings were amply supported by the oral evidence of the two orthopaedic experts in which they largely agreed with each other: see at Tcpt, 20 June 2024, 625.23-39; 627.16-48; 628.38-629.14. For example, both experts said that playing squash for 1.5 hours on a weekly basis would be inconsistent with a definitely loose stem: Tcpt, 630.23-35.

33. [120]

    The appellant criticises the findings at J[123] as an inaccurate summary of the orthopaedic surgeons’ evidence. He submits that they gave evidence that whether the appellant’s activities were inconsistent with the stem being “clinically” loose depended on a precise assessment of what movements the appellant could perform with his left hip and leg, how often, for how long, with how much pain and with how much pain tolerance bolstered by pain medication. That submission should not be accepted. Two passages of transcript, totalling nine whole pages, are cited in support of it. The particular aspects of that evidence which the appellant identifies as suggesting that he might have been able to undertake limited sporting activities notwithstanding a loose femoral stem do not go far. Those submissions ultimately failed to confront the clear evidence given by the orthopaedic experts in the passages referred to above.

34. [121]

    As to the extent to which the appellant had been able to play squash and other sports, there was a major conflict between the appellant’s evidence and the respondent’s clinical records. The appellant downplayed the extent to which he had participated in squash. For example, he said that he did not play singles at any time after 2012: J[118]; Tcpt, 19 February 2024, 83.42-3. More significantly, the appellant denied that he had played squash for the durations recorded in the clinical records.

35. [122]

    The primary judge undertook a detailed review at J[117]-[136] comparing the appellant’s evidence with the contemporaneous records (including those of a third party physiotherapist at Take Control Active Rehab); see also at J[111]-[113] as to credit. His Honour resolved the conflict in this evidence adversely to the appellant at J[136]: “I conclude that the defendant, on each occasion of a consultation after the Revision Surgery, took a history from the plaintiff of his level of function and activity. I conclude that this history is accurately reflected in the defendant’s medical notes.”

36. [123]

    His Honour thus found that, contrary to the appellant’s evidence, the appellant told the respondent in consultations:

    1. (1)

       on 8 March 2012 that he was playing squash at least once per week for up to 3 hours: J[120];

    2. (2)

       later in 2012, that he had been able to play squash for four hours in the preceding Saturday, including playing singles: J[121];

    3. (3)

       on 17 January 2014 that he had been playing squash for four hours: J[125]-[126];

    4. (4)

       on 25 August 2014 that he had played six games, singles and doubles, including “2 hours on court”: J[127];

    5. (5)

       on 2 October 2014 that he had played squash for three hours;

    6. (6)

       on 10 April 2015 that he was “playing squash”: J[129];

    7. (7)

       on 14 August 2015 that he was still playing squash “3hr 1x/wk”: J[130];

    8. (8)

       on 17 August 2016 that he was playing squash “1x/wk – 3 hrs”: J[132];

    9. (9)

       on 30 August 2017 that he was playing “Squash 1x/wk”: J[133].

37. [124]

    It should also be noted that the primary judge rejected the appellant’s evidence that he had told the respondent that he was “in agony” or “in constant pain” at various consultations in this period, including on 20 January 2015, 10 April 2015 and 20 August 2017: J[99]-[100]; [126]; [133]. Instead, his Honour preferred the much less clinically concerning account recorded in the clinical records, such as the entry for 20 January 2015 to the effect that the appellant was still experiencing a left groin ache, and the entry for 10 April 2015 to the effect that the appellant was experiencing a “few pulling feelings in groin” daily, which were “variable in severity”.

38. [125]

    The appellant’s challenge to the primary judge’s findings about the activities the appellant had been undertaking or the pain that he had been experiencing in doing so is not strong.

39. [126]

    First, the appellant submits that the respondent’s clinical notes make only occasional references to the appellant’s playing squash and undertaking other activities, and that those brief references fall well short of the detail necessary to enable the assessment which the appellant submits the orthopaedic surgeons said they require to determine if the stem was “clinically” loose. The premise of this argument (that the orthopaedic surgeons’ evidence was to the effect that more detail was required) has been rejected above.

40. [127]

    Secondly, the appellant attempts to find ambiguity in the clinical records about his squash playing when in reality there is none. The primary judge did not accept the appellant’s explanation that the durations recorded referred to how long the appellant had been at the squash courts, as opposed to the time he had actually been playing: J[131]. His Honour’s approach to the clinical records in this respect was clearly justified in light of the clinical significance of the squash-playing (what mattered was the period of activity, not the time spent waiting around) and his Honour’s credit findings adverse to the appellant.

41. [128]

    Thirdly, the appellant criticises the primary judge for failing to refer expressly to what is described as the corroborative evidence of the appellant’s squash partner Mr Hennock, and that of his massage therapist Mr Rossi. That evidence does not go as far as the appellant needs it to.

42. [129]

    For example, Mr Hennock gave evidence that the appellant had been able to run while playing squash, although with a limp: Tcpt, 21 February 2024, 239.8-13. That is difficult to reconcile with Dr Doig’s evidence at Tcpt, 627.44-48 as to what might be possible with a loose stem: “So, if you’re just hitting a squash ball around a court, and you’re not running, jumping, pivoting and twisting, then you may be able to do it, particularly if you really love the sport, and you’re willing to put up with the discomfort. If you are playing at A grade level, I don’t think there’s any chance of doing that with a definitely loose femoral stem.” It also does not follow from whatever Mr Hennock may have observed at the times he played squash with the appellant that the appellant did not tell the respondent what is recorded in the clinical records.

43. [130]

    As to Mr Rossi, his evidence was largely directed to the appellant’s level of pain at the times Mr Rossi was treating him, not to how many hours he was spending on the squash court. Even then, in light of the orthopaedic expert evidence, Mr Rossi’s evidence was inconsistent with the device’s being loose: “he then went to play squash and his report was that he played a good game, that he was pain-free at the end of it, but that the pain had come back throughout the week”: Tcpt, 22 February 2024, 250.7-9.

44. [131]

    In any event, to the extent that there is any inconsistency between the evidence of those two witnesses and the contemporaneous clinical records, his Honour should be taken to have preferred those records as he was entitled to do.

45. [132]

    The challenge to the primary findings of fact about the appellant’s clinical presentation (in particular, about the amount of time the appellant spent playing squash and the level of discomfort he experienced) is not made out.

46. [133]

    As noted above, given the limitations of the radiological evidence, the appellant’s clinical presentation is central to determining whether the stem was loose. When the primary findings as to the clinical presentation are seen in light of the orthopaedic experts’ evidence referred to above, the appellant cannot discharge his onus of establishing on the balance of probabilities that the device was loose. To the contrary, the clear inference to be drawn is that it was not.

47. [134]

    To the extent that Ground 2 challenges the primary judge’s finding that there was no loosening or movement in the appellant’s femoral stem in the period after the Revision Surgery until 2017, the ground is thus not made out.

Third dispositive question: post-Revision Surgery negligence

1. [135]

   The third dispositive question is whether, in the period after the Revision Surgery until 2017, an orthopaedic surgeon exercising reasonable care would have detected or investigated whether the stem was loose and recommended further revision surgery (Ground 5).

2. [136]

   As explained above, the appellant accepted that if he failed on the second dispositive question, his claim in relation to the respondent’s ongoing management of his hip must fail.

3. [137]

   This question thus does not strictly arise. However, the respondent submits that even if Ground 2 had succeeded, it would not follow that Ground 5 was made out. That is to say, even if the stem was in fact loose in the period after the Revision Surgery until 2017, it would not automatically follow that the respondent was necessarily in breach of his duty of care.

4. [138]

   The steps in the appellant’s argument are as follows.

   1. (1)

      If the Court were satisfied that the stem was loose after the Revision Surgery, “the primary judge’s findings as to the appellant’s function and activity during the period 30 August 2011 to 29 March 2019 cannot stand”.

   2. (2)

      Without precise findings as to the appellant’s function and activity during that period, “it was impossible for the primary judge to determine (under the standard in s 5O) in respect of each consultation during that time the adequacy of” (i) the respondent’s clinical notes, (ii) his assessment of the appellant’s presentation, and (iii) “his repeated decision not to carry out further revision surgery”.

   3. (3)

      “Accordingly, if the appellant succeeded on appeal grounds 1 and 2, the finding at J[138] — that the respondent did not breach [h]is duty of care in the appellant’s management from 30 August 2011 to 28 March 2019 — must be set aside.” The appellant sought a remitter of at least the question of damages.

5. [139]

   The difficulty with this argument is that the appellant needs to upset not only the finding that the stem was not loose, but also the findings as to what the appellant said in consultations with the respondent. As the primary judge found at J[137], if the appellant had in fact been experiencing the lack of functionality that he claimed in his evidence, “he was conveying the opposite impression” to the respondent. For the purposes of determining whether the respondent exercised reasonable care, he was entitled to act on what the appellant was telling him about the extent of his functionality.

6. [140]

   There is no challenge of substance to the primary judge’s findings about what the respondent told the appellant. Those findings were based in part on matters of credit, which were themselves informed by the primary judge’s advantage in observing the witnesses. Whatever evidence was given by Mr Hennock or Mr Rossi, that evidence went only to whether the stem was in fact loose. It would be a large further inference from a finding that the stem was in fact loose to find that the clinical records were inaccurate in recording what the appellant told the respondent in consultations.

7. [141]

   Question 16 in the joint report asked the orthopaedic experts to assume the appellant had reported in various consultations between 2014 and 2017 that he was playing squash for durations including of up to 3 hours per week. As to the significance of such reports, the joint answer was:

8. [142]

   The respondent’s assumptions to which the experts referred substantially accord with what the primary judge found the appellant told the respondent in clinical consultations. A surgeon exercising reasonable care was entitled to act on that basis.

9. [143]

   It follows from the opinions stated in the joint expert report that the respondent was entitled to conclude that, clinically, the appellant “was functioning fine”. That being so, it is difficult to see on what basis it could be said that the respondent was negligent in failing to recommend further revision surgery.

10. [144]

    If it had been necessary to address Ground 5, it would not have been made out.

Grounds 4 and 6: causation

1. [145]

   In the absence of any finding of negligence, the counterfactual questions posed by these grounds do not arise. As it would be necessary to answer those questions at a number of different points in time, and making assumptions as to the underlying facts different from those found by the primary judge, it is not appropriate to embark on that exercise.

Conclusion and orders

1. [146]

   The appeal should be dismissed with costs.

2. [147]

   FREE JA: I agree with McHugh JA.