Williams v Fraser

MACFARLAN JA: I agree with the orders proposed by Simpson AJA and the reasons that her Honour gives.

I add the following observations.

The appellant’s case at the conclusion of the hearing at first instance and on appeal focused almost exclusively on the proposition that she did not, by the time of her X-ray in May 2012, suffer from the condition of spondylolisthesis, that is, a condition involving slippage of a disc in her spinal cord. As Simpson AJA points out, this focus was no doubt driven by an appreciation that the evidence taken as a whole indicated that if she had that condition at that time different advice to that in fact given by Dr Stening would not have obviated the need for the surgery that the appellant subsequently had in 2013 and which led to her chronic pain condition.

There was some support for the appellant’s proposition in the radiologists’ evidence but the evidence of the causation experts was to the contrary of it. The views of the latter are to be preferred for the reasons given by Simpson AJA. These include the following considerations.

First, the radiologists gave evidence on the question of liability, that is, whether the respondent acted reasonably, with reference principally to what was or should have been apparent to him from the May 2012 X-ray. They were not therefore considering the appellant’s actual condition at that time and were not entitled to take into account hindsight.

On the other hand, the task of the causation experts was to consider the appellant’s actual condition in May/June 2012, not simply what might or might not have appeared from the May 2012 X-ray. Whilst they explained that disc slippage was not, or may not, have been immediately apparent from the May 2012 X-ray, subsequent information, and in particular the 2013 X-rays, assisted them to conclude that the appellant did suffer from the condition of spondylolisthesis in May/June 2012. They did therefore, permissibly, take into account hindsight and, unlike the radiologists, did address the very issue embodied in the appellant’s proposition.

GLEESON JA: I agree with the orders proposed by Simpson AJA, for the reasons her Honour gives. I also agree with the observations of Macfarlan JA.

SIMPSON AJA: In 2015 the appellant, Hailee Williams, brought proceedings in the Common Law Division of the Supreme Court claiming damages arising out of what she alleged to be breaches of the duty of care owed to her by three medical professionals. The first named defendant was Dr John Fraser (the respondent to the present appeal), a specialist radiologist; the second was Dr Michael Stening, an orthopaedic surgeon; the third was Mr Craig Seabury, a physiotherapist. At some point the proceedings against Mr Seabury were discontinued. The appellant’s claims were governed by the Civil Liability Act 2002 (NSW) (Civil Liability Act).

The proceedings against Dr Fraser and Dr Stening were heard by Harrison J (“the primary judge”) over 11 days between June and September 2020. On 20 May 2021 his Honour gave judgment in favour of both defendants, with costs, giving reasons: Williams v Fraser [2021] NSWSC 416 (“the primary judgment”). Notwithstanding that, his Honour assessed, on a contingent basis, the damages he would, had the appellant been successful, have awarded at $5,284,912.79.

The appellant appeals against the order for judgment in favour of Dr Fraser. She has not appealed against the order for judgment in favour of Dr Stening. Neither the appellant nor Dr Fraser has raised any challenge to the contingent quantification of damages, by reason of which an appeal lies as of right: Supreme Court Act 1970 (NSW) (Supreme Court Act), s 101(2)(r). By s 75A(5) of the Supreme Court Act the appeal is by way of rehearing. By subss (6)(b) and (10) of s 75A this Court has the powers and duties of the Supreme Court, including the powers and duties to draw inferences and make findings of fact, and to give any judgment or make any order which ought to have been given or which the nature of the case requires. Those powers have more than usual significance in this case.

Subject to some constraints to which I will come, the duty of this Court is to decide the issues for itself, recognising the advantage enjoyed by the primary judge in observing the witnesses as they gave their evidence: Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 at [19] per Gibbs ACJ, as his Honour then was, Jacobs and Murphy JJ. The Court is to conduct a “real review” of the trial and the reasons given by the primary judge: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [25] per Gleeson CJ, Gummow and Kirby JJ. Restraint must be exercised in departing from findings of fact made by trial judges which might be affected by their impressions about the credibility of witnesses (Fox at [26] per Gleeson CJ, Gummow and Kirby JJ), and that restraint extends to findings of secondary facts which are based on a combination of impressions of witnesses and other inferences drawn from primary facts: Lee v Lee; HSU v RACQ Insurance Limited; Lee v RACQ Insurance Limited (2019) 266 CLR 129; [2019] HCA 28 at [55] per Bell, Gageler, Nettle and Edelman JJ.

The issues in the trial and the appeal involve some complex medical concepts and terminology. At the request of the Court, the parties provided an agreed glossary of medical terms and concepts that need to be understood. The following, which I understand to be uncontroversial, is derived, in part, from the agreed glossary, in part from reports of various medical practitioners, and their oral evidence, and from articles from medical journals that were tendered in evidence. Unanimity as to the meaning of terms and the incidents of the medical conditions discussed is not always evident. The list below is intended to provide context and background to what follows.

The difference between spondylolysis and spondylolisthesis is important. Spondylolysis can exist in the absence of spondylolisthesis. Both are diagnosed on radiology. The radiological sign of spondylolysis is called a “Scotty dog collar”, as described in a joint report of orthopaedic surgeons (noting that the reference is to spondylosis, a general term, according to the agreed glossary, denoting “spinal problems”). The radiological sign that indicates the presence of spondylolisthesis is called an “inverted Napoleon hat”.

The preferred treatment for diagnosed spondylolisthesis is conservative, especially in children and adolescents. Conservative treatment involves bracing, activity restriction, physiotherapy and pain control.

Spondylolysis can be aggravated by activity that involves repeated extension or flexion of the spine, such as lifting heavy weights. Such activity can place pressure on the intervertebral discs, causing desiccation and degeneration.

The appellant was born in March 1994. Although it was not apparent until much later, she was born with a pars defect (dysplastic spondylolysis). Notwithstanding that condition, the appellant enjoyed an apparently unremarkable childhood and early adolescence, engaging in normal sporting and other activities. In September 2009, at the age of 15, the appellant began to experience pain in her left hip. She was referred by her general practitioner, Dr Amin Mutasim, to Dr Stening for “opinion and management”. Dr Stening diagnosed “iliac apophysitis left anterior superior iliac spine” (which I understand to be an inflammation in the hip joint), and advised conservative management. There does not appear to be any controversy about this diagnosis or the treatment Dr Stening then recommended.

In about 2011, aged about 17, the appellant took employment as a waitress in a Chinese restaurant. She was able to perform the necessary tasks without difficulty. She also regularly attended a gymnasium and engaged in kick boxing events, which also, apparently, did not cause her any difficulty. In about November of that year the appellant complained to Dr Mutasim of right sided lower back pain.

In March 2012, at the age of 18, the appellant commenced work in a child care centre, Kindalin. The employment, as might be expected, involved her in lifting and carrying children, some cleaning duties, changing nappies, carrying stretchers on which children had their “rest period”, and sometimes kneeling to attend to a child on a stretcher. Initially, the appellant managed these tasks and activities without difficulty, but after a month or so she began to experience pain in her left hip, followed by pain in the right hip and back pain.

On 21 May 2012 the appellant reported to Dr Mutasim bilateral hip pain and tenderness over the left anterior iliac spine at L4/5 region. Dr Mutasim referred her for X-rays of both hips and pelvis, and ultrasound of both hips, noting, in the clinical history, pain in both hips and “lower lumbar”, and referred her again to Dr Stening for opinion and continuing management. The X-rays ordered by Dr Mutasim were taken on 24 May 2012. Having examined both X-rays, Dr Fraser reported that there were no abnormalities of the hip joints and that there was no evidence of arthropathy or other bony abnormality. As later examination showed, the X-ray film, in fact, revealed the presence of the congenital pars defect/dysplastic spondylolysis. Dr Fraser did not make any mention of the pars defect in his report. Whether the X-ray also showed evidence of spondylolisthesis became, at a late stage in the trial, an issue. The appellant saw Dr Stening on 20 June 2012.

At the consultation on 20 June 2012 Dr Stening examined the X-rays, which the appellant had brought with her. He did not identify the pars defect. He relied on the report of Dr Fraser to the effect that the X-rays revealed no abnormalities. Dr Stening diagnosed a recurrence of the 2009 apophysitis. He reported to Dr Mutasim:

Had Dr Fraser reported that the X-ray revealed spondylolisthesis, Dr Stening’s diagnosis and treatment would have been different. He would have taken steps to investigate and clarify the exact nature of the appellant’s condition, and advised the appellant to avoid heavy lifting or contact sports, that she needed to attend for review at 3 monthly intervals, to have serial X-rays at 3 monthly intervals, to monitor her condition for symptoms and return for review if she developed any of a number of identified symptoms, and that she needed to consult a paediatric spinal sub-specialist.

The appellant continued to experience pain and returned to Dr Stening in December 2012, suffering, she said, from back and hip pain. Dr Stening did not record any complaint of back pain and did not order any spinal examination because, he said, he was not given any history of back pain. Whether that was so was a contested issue in the trial and was determined against the appellant. There being no appeal against the judgment in favour of Dr Stening, it is of no further importance. Dr Stening again advised conservative treatment and referred the appellant to Mr Seabury for physiotherapy. Mr Seabury recorded a history of worsening bilateral hip pain, for more than a year, and “lumbar discomfort”. He prescribed exercises for the appellant to do at home, which she did. Her problems became worse and she was struggling with her work at the child care centre. In May 2013 the appellant consulted an osteopath, Dr Thomas Samels, who recorded a history of low back and hip pain. In May 2013 the appellant began to experience urinary incontinence. On 5 June 2013 Dr Samels ordered a lumbar spine X-ray which disclosed “approximately 1.7 cm of anterior slip of L5 on S1 due to bilateral pars defects making this a Grade 2 spondylolisthesis”.

The appellant was then referred to another orthopaedic surgeon, Associate Professor William Walter. Dr Walter noted that X-rays of the appellant’s lumbar spine showed 15% spondylolisthesis at L5 on S1. He referred the appellant to Dr Cree, also an orthopaedic surgeon, for urgent review. The appellant was admitted to the Mater Hospital where, after an MRI, Dr Cree performed, as a matter of urgency, spinal decompression and fusion. Subsequently the appellant developed a secondary chronic pain syndrome (described by Dr Fraser as “failed back surgery syndrome”), a condition from which the appellant continues to suffer. It was accepted that, although the operation had been competently performed by Dr Cree, the appellant’s continuing pain syndrome was a direct consequence of the surgery.

As indicated above, the appellant brought proceedings against Dr Fraser, Dr Stening and Mr Seabury. The proceedings against Mr Seabury were discontinued. The cases the appellant sought to make against Dr Fraser and Dr Stening were finally formulated in a Third Further Amended Statement of Claim (to which I will refer as the statement of claim) filed in Court on 1 July 2020, well after the trial commenced. It is apparent, however, that it was made available in draft at least by the commencement of the trial, and an amended defence, specifically related to the amendments, was filed on the same day.

The appellant’s claim against Dr Fraser centred on his interpretation and report of the 24 May 2012 X-ray. Her case was that the X-ray disclosed the presence of both spondylolysis and (importantly) spondylolisthesis, and that Dr Fraser’s failure to identify either condition constituted a breach of the duty of care he undoubtedly owed her. That the appellant’s case encompassed the existence of both conditions can clearly be seen from six of the 15 particulars of negligence subscribed to par 91 of the statement of claim. Those particulars were that Dr Fraser:

The appellant pleaded in par 91A of the statement of claim that the consequence of Dr Fraser’s breach of duty was that Dr Stening did not institute appropriate clinical management or radiological investigation: in pars 91B and 91C that she was not clinically managed for spondylolisthesis as a result of which her condition deteriorated and she did not seek or receive appropriate medical review and advice and continued to engage in repetitive lifting in her employment; in par 91D that she did not receive appropriate advice from Dr Stening; in par 91E that there was a delay in diagnosis and treatment from at least 20 June 2012 (when she was seen by Dr Stening) to June 2013, during which time the “L5-S1 vertebrae slipped and nerves, ligaments and discs were damaged” and in par 91F that, because she was not appropriately clinically managed, she suffered loss and damage. The overall consequence of Dr Fraser’s asserted negligence, as pleaded, was that the appellant suffered progressive damage to her spine that could have been avoided if her condition had been properly diagnosed and treated on and from 24 May 2012, and that she came to surgery in June 2013 that “more likely than not” could have been avoided and which, in turn (and without negligence on the part of the surgeon, Dr Cree), caused ongoing pain symptoms (see pars 103A-109A). Paragraphs 91A-91F and 103A-109A appear to be later insertions into the final version of the statement of claim.

An alternative case, pleaded at pars 107-108 of the statement of claim, that, but for Dr Fraser’s negligence (and Dr Stening’s asserted negligence) the appellant would have undergone a different form of surgery at an earlier time, does not appear to have been pursued at trial, and, in any event, does not arise on appeal.

Dr Fraser filed a defence. He denied the negligence alleged and the particulars subscribed to par 91 of the statement of claim. He denied that his conduct was the cause of damage or harm to the appellant.

The trial was fixed to commence on 15 June 2020. Shortly before that date Dr Fraser filed an amended defence in which he admitted breach of duty of care constituted by his failure to identify and report on the presence of the right sided pars defect (spondololysis) and his failure to recommend further radiological imaging to investigate that condition. Inherent in that admission was a further admission that the X-ray did disclose the presence of the pars defect/spondylolysis. The admission did not expressly (or by implication) extend to an admission that the X-ray disclosed the presence of spondylolisthesis. In the amended defence filed on 1 July 2020, Dr Fraser denied the allegations in pars 91E, 91F, 103A and 109A of the statement of claim. He maintained his denial that his failure to report the pars defect was the cause of any harm to the appellant. He pleaded a defence pursuant to s 5I of the Civil Liability Act, asserting that the pain condition which the appellant suffered as a result of the surgery performed by Dr Cree was an inherent risk of that surgery, a risk which materialised and for which he did not incur liability in negligence because, irrespective of his breach of duty, the appellant would have required the surgery, with the same result.

The consequence of Dr Fraser’s amended defence was that the issues in the trial, so far as he was concerned, narrowed. The issues to be litigated were reduced to:

That the appellant’s claim was that the 24 May 2021 X-ray disclosed spondylolisthesis was expressly confirmed at the outset of the trial when senior counsel opened the case to the primary judge. As recorded in the transcript, senior counsel said:

It is important to spell out with some precision the manner in which the appellant’s case was pleaded and presented. Her case on causation was that, had Dr Fraser identified either spondylolysis or spondylolisthesis (both of which were present), the appellant would have been treated conservatively, without surgery; she would have been advised to avoid the kind of work she was doing at the child care centre and some of the sporting activities in which she engaged; she would have acted on that advice, with the effect of preventing further slippage or displacement of the L5 disc (the underlying premise being that some slippage – spondylolisthesis - had already occurred as at 24 May 2012); she would have maintained that regime until she achieved “skeletal maturity” when the risk of further slippage diminished, and she would thus have avoided the 2013 surgery; and that her continued work at the childcare centre (which she would have surrendered if properly advised of her condition) aggravated the already present spondylolysis and/or spondylolisthesis.

In sum, put as simply and succinctly as possible, the appellant’s case, as pleaded and presented, was:

Until the last day, that was the basis on which the trial was conducted. The trial involved a very large array of medical experts representing a number of specialities. The specialities and experts were:

Each of the specialists was given extensive instructions and provided with assumptions on the basis of which he or she was asked to express opinions with respect to specific questions. Each of the specialists provided at least one individual report. Professor Sekel and Dr Walker met in conclave on 20 February 2018 and provided a joint report, dated 9 March 2018; Professor Earwacker and Dr Lees met in conclave on 30 April 2018 and provided a joint report dated 1 May 2018; and Professors Sekel and Dan and Drs Rutkowski, Sutton and O’Neil met in conclave on 20 February 2018 (the first causation conclave) and provided a joint report dated 20 March 2018 specifically directed to causation issues (the first joint causation report). These same five specialists met again in conclave on 21 May 2020 (“the second causation conclave”), joined by Drs Drnda and Tuffley, to produce a further report dated 26 May 2020 directed to causation (the record joint causation report).

That the reports were provided jointly following the specialists’ meeting in conclave should not be taken as an indication of consensus. In many cases, practitioners of the same speciality expressed divergent opinions in respect of specific issues.

Concurrent oral evidence was given by Professor Sekel and Dr Walker on 24 June 2020 (the sixth day of the trial), by Professor Earwacker and Dr Lees on 25 June 2020, and by Professors Sekel and Dan, and Drs Drnda, Tuffley, Rutkowski, Sutton, Biggs and O’Neil on 26 June 2020. It will be necessary to return to the detail of the evidence and opinions that emerged from these exercises. For the moment it is sufficient to note one answer given by the radiologists (Professor Earwacker and Dr Lees) in their joint report (1 May 2018). In response to a specific question whether Dr Fraser ought to have identified the presence of an “inverted Napoleon hat sign” (to repeat, a radiological sign of spondylolisthesis) Professor Earwacker and Dr Lees jointly answered:

A very large volume of medical literature was tendered in evidence. On occasions the medical experts referred to the literature in support of the views they expressed. On the whole, however, it was left to the primary judge to interpret the literature as best he could.

During the course of final submissions (2 July 2020) the appellant’s case took a radically different turn. Far from contending that, as at 24 May 2012, she had spondylolisthesis, it was now contended on her behalf that, as at that date, no “inverted Napoleon hat” sign existed and that therefore the appellant did not as at that date suffer from that condition. In written submissions dated 18 September 2020 the following proposition was put:

This change in the appellant’s position was triggered by the answer given by Professor Earwacker and Dr Lees in their 1 May 2018 joint report to the question which I have set out above, although, as was acknowledged, the significance of the answer was not appreciated until the time came for preparation of final submissions in July 2020.

A hint at the forensic advantage sought to be achieved on behalf of the appellant by the change of position may be discerned in the last sentence of [101] of the written submissions, extracted above. Until 2 July 2020 the appellant’s case on causation was that Dr Fraser’s failure to identify either spondylolysis or spondylolisthesis (each of which was present) resulted in inadequate and inappropriate treatment being given to her, and her persistence in undertaking work and recreational activities that were unsuitable, something she would not have done if given appropriate advice. Inherent in that proposition was the assertion that, as at the date of Dr Fraser’s breach of duty, the appellant in fact had spondylolisthesis – that is, that disc slippage had already commenced at that time. The presence or existence of spondylolisthesis at that time would significantly have diminished the prospects of conservative treatment being sufficiently effective to avoid the need for surgery in 2013. If there were no slippage as at May 2012, but only spondylolysis (which itself ought to have been recognised by Dr Fraser and reported to Dr Mutasim and Dr Stening as calling for investigation or treatment) the slip must have occurred after Dr Fraser’s breach of duty. Had effective measures been taken before the slippage commenced, the prospects of successful treatment would have been better, and the need for surgery would have been averted. In his evidentiary statement and in his oral evidence Dr Stening confirmed that, had he been advised by Dr Fraser that the 24 May 2012 X-ray showed either condition, the advice and treatment he would have given to the appellant would have been different.

Pre-existing spondylolisthesis would make the appellant’s case on causation more difficult because it would diminish the prospect that, with conservative treatment, she might have averted surgery. If the condition suffered by the appellant at the time of the X-ray was limited to spondylolysis, her prospects of a favourable result from conservative treatment would be significantly enhanced. Recognition of the forensic advantage to be achieved by discarding reliance on the existence of spondylolisthesis as at 24 May 2012 accounts for the last-minute change in the appellant’s position.

No objection was taken on behalf of Dr Fraser to the radical departure from the appellant’s pleaded case. Written submissions in response to those made by the appellant were provided, including on the issue of the correct diagnosis. On behalf of Dr Fraser it was expressly accepted that no resistance could be offered to the appellant’s raising the issue on appeal.

The principal question for determination was whether Dr Fraser’s admitted breach of duty in failing to report on the existence of the “pars defect”/spondylolysis and on spondylolisthesis was the cause of harm to the appellant. That issue was to be resolved by the application of s 5D of the Civil Liability Act which is relevantly in the following terms:

By s 5E, in proceedings relating to liability for negligence, a plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

In final written submissions at trial the appellant identified the “harm” on which she relied as of two types:

That is scarcely an accurate reflection of the case the appellant sought to make at trial. As I understand her case, the “harm” on which she relied was the ultimate outcome of the 2013 spinal surgery, that is, a chronic pain condition. That was also the understanding of the primary judge, and was confirmed in this Court as “essentially” the appellant’s case. It is also consistent with the manner in which the case was opened. However, the appellant flirted with what was described as a “secondary position” (expressed as “disc damage, musculo-ligamentous strain, rounding of sacrum, the likely progression of slip” caused by the appellant’s continued work in the child care centre). That “secondary position” is discussed below, in the context of the grounds of appeal.

To succeed in her case of negligence against Dr Fraser, it was necessary that the appellant establish, on the balance of probabilities, that Dr Fraser’s failure to recognise and/or report on the existence of the pars defect was a necessary condition of the occurrence of the harm she suffered. Given that the appellant accepts that her current chronic pain condition was always a possible outcome of the 2013 surgery, it was necessary that she prove, on the balance of probabilities that, but for Dr Fraser’s negligence, she would (not could) have avoided surgery and the adverse consequences of the surgery: see Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 at [36], [40]-[41] per French CJ, Kiefel J, as her Honour then was, and Keane J. Here, as is often the case, the determination of “factual causation” involves a hypothetical comparison between what actually happened and what would have happened if Dr Fraser had recognised the pars defect in the X-ray and reported to Dr Mutasim and Dr Stening accordingly: see Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 at [113] per Hayne J (in dissent as to the outcome but uncontroversial as to this proposition); Tabet v Gett (2020) 240 CLR 537; [2010] HCA 12 (Tabet) at [140] per Kiefel J. It was not in issue that, had the existence of the pars defect been brought to Dr Stening’s attention, he would have adopted a different course of treatment for the appellant. It does not follow, however, that that alternative treatment would have obviated the need for the 2013 surgery. In part, whether it would have done so depended significantly on the condition of the appellant’s spine at the date of Dr Fraser’s breach of duty. But it also depended on what may be hypothesized as the prospects that the alternative treatment regime that Dr Stening would, absent Dr Fraser’s breach, have implemented would have averted the need for surgery. If the appellant already had a disc slippage – spondylolisthesis – it may be taken (and it is implicit, if not explicit, in the medical evidence) that that would significantly diminish the prospects of a favourable outcome from conservative treatment, and make it more likely that the appellant would have come to surgery in any event. On the other hand, if the undoubted pars defect had not at the date of breach progressed to slippage, the appellant’s chances of avoiding surgery would have been significantly enhanced.

Whether the appellant had spondylolisthesis as at 24 May 2012 was therefore an important, if not critical, fact in the hypothetical analysis. This was the issue raised by the appellant’s eleventh-hour change of direction.

The primary judge was obliged, of course, to address the case against Dr Stening, which is no longer in issue. Much of the lengthy primary judgment is devoted to that task, in respect of which an important factual dispute concerning what history the appellant had given to Dr Stening had to be resolved. No such factual issue arose in relation to Dr Fraser.

The primary judge did not make any express finding as to the condition of the appellant’s spine as at 24 May 2012. His Honour did not resolve the factual issue belatedly raised on the appellant’s behalf.

The critical findings on causation are to be found in three paragraphs of the judgment:

It may be observed that in [223] the primary judge does not specify what the “anatomical spinal problem or condition”, “pre-operational pain syndrome” or “serious congenital anatomical spinal condition” was or were, that is, spondylolysis or spondylolisthesis. The reference to “stem or stall the natural progression of ….” strongly suggests that the primary judge was (unsurprisingly) proceeding on the premise that spondylolisthesis was present in the appellant’s spine as at 12 May 2012. In my opinion, it is reasonably clear that the primary judge did proceed on that basis. Essentially, on the premise that as at 24 May 2012 slippage had already occurred and the appellant had spondylolisthesis, the primary judge was not satisfied that the appellant had established a causal link between Dr Fraser’s failure to report the existence of the spondylolisthesis and the need for the 2013 surgery and consequent chronic pain syndrome – that is, that Dr Fraser’s failure was a necessary condition of the appellant’s chronic pain syndrome. That was because his Honour accepted that, regardless of Dr Fraser’s negligence, the appellant’s condition was such that she would have required the surgery.

Although the primary judge acknowledged and discussed Dr Fraser’s defence under s 5I of the Civil Liability Act, he did not state any express conclusion with verdict to it. Rather, he considered the issues thus raised concurrently with his consideration of causation under s 5D.

Four of the five pleaded grounds of appeal are directed to the primary judge’s approach to the issue of causation. Grounds 1, 2 and 3 assert, respectively, that the primary judge failed properly or adequately to address the appellant’s submissions on causation; failed to provide adequate reasons on the issue of causation; and failed to make relevant findings on the evidence and submissions relevant to the issue of causation. Ground 4 asserts error, in a number of respects, in the factual “analysis and reasoning” underpinning the causation conclusion. For example, error was asserted in the failure of the primary judge to “assess causation as at May 2012” (Ground 4(c)); in the failure to find that “damage and injury were being sustained from May 2012 by reason of the appellant’s inappropriate work tasks” (Ground 4(a)); and in what was said (erroneously) to be a finding that “no damage or injury was sustained by the breach of duty” (Ground 4(b)).

Ground 5 raised a different issue; it asserted that:

Grounds 1-3 as formulated are noticeably opaque as to the precise alleged failings of the primary judge. In written submissions it was made clear that the primary complaint was that his Honour did not address the belated reversal of what had previously been the appellant’s position, that, as at 24 May 2012, she suffered from spondylolisthesis, did not make a finding that that condition was not present, and was in error in proceeding on the basis that the appellant had spondylolisthesis.

The submissions with respect to Grounds 1-3 fell into two parts. The first attacked the (implicit) finding that spondylolisthesis was present; the second attacked the conclusion that the appellant’s condition was such that she would, even if her condition had been recognised and treated appropriately, have proceeded to surgery. The second part of the submission was largely (but not entirely) predicated on the proposition that spondylolisthesis was not present, and what would have happened had the appellant had only spondylolysis.

To assess the merits of the first part of the argument it is necessary to return to the submissions made to the primary judge. Despite the hint contained in the last sentence of par 101 of the written submissions, it was never clearly spelled out that the appellant sought to draw a distinction between the potential consequences of a diagnosis of spondylolysis and a diagnosis of spondylolisthesis.

Had that distinction been clearly drawn, it would have been necessary for the primary judge to determine whether, as at 24 May 2012, the appellant suffered from spondylolisthesis. If he found that she did, then the balance of the exercise was that which he did in fact undertake, on the assumption that that condition was then present.

If, on the other hand, the primary judge accepted the appellant’s contention that the evidence did not establish that at that time she suffered from spondylolisthesis, the exercise involved would have been different and would have required an assessment of a favourable outcome of conservative treatment where the condition was spondylolysis.

The primary judge did not undertake that exercise; he was not explicitly asked to do so. Nor were the medical experts asked to undertake that analysis. As is clear from what has been set out above, all experts expressed their opinions on the premise that the appellant’s condition as at 24 May 2012 included spondylolisthesis. No medical expert was asked to express an opinion on whether, if the appellant had spondylolysis but not spondylolisthesis, the need for surgery could have been avoided.

Dr Fraser did not contest the proposition that the primary judge did not directly determine whether spondylolisthesis was present in the appellant’s spine as at 24 May 2012. His response to grounds 1 to 3 of the appeal was that, in the circumstances in which the issue had, belatedly, been raised, it would be unfair to be critical of the primary judge’s failure to deal with it. In my opinion that is particularly so when it is borne in mind that, although the proper classification of the appellant’s condition was raised, no, or no cogent, submissions were made as to what would follow from a finding that spondylolisthesis was not present as at 24 May 2012. That question was raised, at best, obliquely. A good deal of the submissions presented at trial went to the question of, if the appellant did have spondylolisthesis, what grade it was.

The focus of the submissions of both parties in this Court was on what factual determination the primary judge ought, had he turned his mind to the question of the correct diagnosis, have made. As the primary judge did not undertake that exercise, it is necessary that this Court, exercising the powers conferred by s 75A(6)(b) and (10) of the Supreme Court Act, determine what the evidence established as to the condition of the appellant’s spine, and, if it were not spondylolisthesis, whether appropriate treatment would have obviated the need for surgery. This exercise is not constrained by the need to make allowances for the advantage enjoyed by the primary judge in having the opportunity to observe and make an assessment of the credibility or reliability of witnesses. The issue is purely based on analysis of the medical evidence, documentary and oral. There is no suggestion of any credibility or reliability issues affecting any of the medical witnesses. This Court is in a good a position as the primary judge to make the determination.

And since the question was never put to the experts in the same way as it has been put to this Court, the determination must be made by inference from the opinions expressed on other matters.

The appellant’s argument that spondylolisthesis was not present as at 24 May 2012 depended entirely on the response of the two radiologists, Professor Earwacker and Dr Lees on 1 May 2018, (referred to above) that no “inverted Napoleon hat” sign is discernible in the 24 May 2012 X-ray. In addition, Dr Lees said, in a report dated 17 October 2015:

Dr Earwacker’s opinion was not so unequivocal. In a report dated 3 November 2014 he said:

It is worth observing that both of these reports, as well as the report of 1 May 2018, were directed to whether Dr Fraser had been negligent in failing to observe radiological signs of spondylolysis or spondylolisthesis. The radiologists were not asked to express views about the appellant’s condition. The difference is not insignificant.

At this point it is convenient to note a logical fallacy in the appellant’s argument. In [100] of the written submissions at first instance, it was stated, somewhat baldly, that, as there was (on the evidence of the radiologists) no “inverted Napoleon hat sign” on the 24 May 2012 X-ray:

While the evidence did establish that the presence, on X-ray, of an “inverted Napoleon hat” sign is indicative of spondylolisthesis, no evidence that the converse is true was identified – that is, that the absence of an “inverted Napoleon hat” sign establishes the absence of spondylolisthesis. In response to a specific question about indications for surgery, Dr Drnda considered that clinical observations are more important than radiological findings . And, as will be seen below, even where an “inverted Napoleon hat” sign is present on an X-ray, it may be subtle and barely discernible.

The radiologists’ evidence that Dr Fraser was not negligent in failing to observe and report on the presence of an “inverted Napoleon hat” sign on the 24 May 2012 X-ray because no such sign was present does not establish that the appellant did not have spondylolisthesis.

It is necessary then to examine the other medical evidence with some care, bearing in mind that no specialist was asked to express an opinion on whether the appellant did in fact have spondylolisthesis. Generally speaking, and unsurprisingly given the case sought to be made on behalf of the appellant until the end of the trial, the specialists proceeded on the assumption that spondylolisthesis was present.

Apart from the radiological evidence that spurred the appellant’s change of position, the appellant relied heavily on the evidence of Professor Sekel and Dr Drnda, describing them as “our best witness[es]”.

Professor Sekel’s evidence bears close scrutiny. His first report is dated 10 May 2015 and was prepared at the request of the appellant’s solicitors. The letter of instruction is not in the materials provided to this Court but it is apparent that Professor Sekel was retained for the purpose of advising on the potential liability of Dr Stening. Professor Sekel uncontroversially defined spondylolisthesis as:

In that context Professor Sekel said:

A little later in the same report, in answer to a question about the most likely cause of the appellant’s symptoms, Professor Sekel replied:

Professor Sekel then said:

Having regard to the definition of spondylolisthesis given by Professor Sekel, it is difficult to reconcile his statement that the appellant had “Grade II congenital type of spondylolisthesis from birth” with his subsequent statement that it was more likely than not that spondylolisthetic slippage had not occurred in June 2012. The later statement that there was no clinical evidence that spondylolisthesic slippage had started to occur in June 2012 may not be as contradictory as it first appears. I take it to be intended to distinguish between “clinical” evidence (that is evidence from observation, history, and the like) and radiological investigation.

In a second report (1 June 2015), having reviewed the 2012 and 2013 X-rays, Professor Sekel adhered to his view that the appellant “at all times had late Grade I or early Grade II spondylolisthesic change”. He considered that the vertebral body shapes of L5 and S1 were typical of a congenital form of spondylolisthesis.

Professor Sekel participated in the first causation conclave on 20 February 2018 and joined in a report dated 20 March 2018. The conclave was expressly asked if it was likely that, in June 2012 and December 2012, the appellant was suffering from an L5/S1 spondylolisthesis, and, if so, what grade it was. All participants in the conclave agreed:

The report then records Professor Sekel as adding:

At trial Professor Sekel gave concurrent evidence with Professor Dan and Drs Drnda, Tuffley, Rutkowski, Sutton, Biggs and O’Neill. In answer to a question about whether the implementation of appropriate conservative measures might have averted the need for surgery (an issue to be considered below), he said (as recorded in the transcript):

In a joint report of orthopaedic specialists, Professor Sekel and Dr Walker agreed that the “inverted Napoleon hat’ sign could be seen on the 24 May 2012 X-ray, although it was very subtle and might not be discerned unless specific attention was drawn to it. They also agreed that, as at June 2012, the appellant was suffering from spondylolisthesis.

Dr Drnda is a neurosurgeon who was also retained by the appellant’s solicitors to advise with respect to Dr Stening’s potential liability. Dr Drnda was asked to assume (contrary to the fact) that Dr Fraser’s report had identified the presence of right-sided pars defect, and for his opinion about what a reasonable practitioner in Dr Stening’s position would have done, inter alia, by way of diagnosis and what Dr Stening himself ought to have identified on viewing the 24 May 2012 X-ray film. In a report dated 7 November 2018 Dr Drnda replied:

Professor Dan was retained by Dr Fraser’s solicitors. In answer to a specific question he said that the 24 May 2012 X-ray showed “a defect in the arch of L5” but that he “struggle[d] to identify a pars defect”. In answer to a question “when did [the appellant] develop spondylolisthesis” (that is, on the assumption that she had done so) he replied:

Importantly, Professor Dan considered that the appellant’s symptoms were not consistent with the effects of slippage in May or December 2012 but were present in May 2013 and therefore developed between December 2012 and May 2013.

As indicated above, a second conclave of 8 experts of varying specialities took place in May 2020 to consider the causation issue. The participants in the conclave were asked (on the basis of stated assumptions) to identify the medical conditions (including spondylolysis and spondylolisthesis) from which the appellant was suffering on 21 May 2012, 24 May 2012, 20 June 2012 and 3 December 2012. The agreed answer was that, at each of those dates, the appellant was suffering from:

On the basis of this evidence the conclusion that, as at 24 May 2012, the appellant already had the condition of spondylolisthesis is inevitable. Only Professor Dan is slightly more muted in his opinion but nevertheless “suspected” that displacement began to occur in 2012. There are internal irreconcilable inconsistencies in Professor Sekel’s evidence. The conclusion is inevitable notwithstanding the unequivocal statement of the radiologists, Professor Earwacker and Dr Lees, that no “inverted Napoleon hat” sign was present on the 24 May 2012 X-rays. That view did not accord with the view of Professor Sekel or Dr Walker who nevertheless agreed that the sign was so subtle that it could only be interpreted with the benefit of hindsight. The flaw in the appellant’s reasoning, as suggested above, is to convert an opinion that no “inverted Napoleon hat” sign could be discerned on the X-ray to a conclusion that there was, therefore, no spondylolisthesis. Neither Professor Earwacker nor Dr Lees said that the appellant did not have spondylolisthesis; they addressed themselves to the radiological signs in the context of considering breach of duty by Dr Fraser. Indeed, Dr Earwacker’s report of 3 November 2014 strongly suggests that the appellant did, in May 2012, have spondylolisthesis, although of a relatively minor degree.

The primary judge has not been shown to have been in error in approaching the question of causation on the basis that, as at 24 May 2012, the appellant already had the condition of spondylolisthesis.

That does not have the necessary consequence that grounds 1 to 3 of the appeal should be rejected. Issues concerning the primary judge’s approach to the question of causation remain. Before coming to those it is convenient to deal with some other aspects of the appeal. At [56] of the appellant’s written submissions, in respect of Grounds 3, 4(a) and 4(b) the following submission was made:

It was then submitted that “a central plank” of the appellant’s case was that she was vulnerable to injury, and that heavy lifting caused damage and inflammation to her spine. The submission continued:

The submission concluded:

The submissions cited, as indicative of error, a paragraph, at the outset of the primary judgment, in which the primary judge said:

The characterisation of the appellant’s case attributed in par 56 of the submissions to the primary judge and said to be not correct reflects precisely what was pleaded in pars 91B-91F and 103A – 109A of the statement of claim (referred to above at [25]), and recorded in senior counsel’s opening, in which he said:

It is also in accord with the final submissions made at trial, in which it was put:

The “conservative treatment” the appellant claimed (and it was common ground) that she should have had included advice to refrain from the lifting of children involved in her employment at the child care centre.

It may be taken that the propositions at pars 56 and 59 of the written submissions were intended to address the appellant’s “secondary position” with respect to causation. That was, it will be remembered, that the appellant’s continued work in the child care centre was the cause of disc and other damage. In support of that contention, reliance was placed on evidence given by Dr Stening in cross-examination to the effect that spondylolysis can be aggravated, and that damage of the kind identified can be caused, by inappropriate work practices and other inappropriate activity of the kind that the appellant ought to have been warned against. (Dr Stening was more circumspect in respect of whether such activities could cause an already present spondylolisthesis to progress, saying that he lacked the expertise to make that judgment.) Dr Stening’s evidence in this respect was limited to an explanation in general terms of the potential of activities such as those involved in the appellant’s employment to cause damage. It was not an expression of opinion that those activities had in fact caused damage to the appellant.

No evidence that the appellant’s employment between May 2012 and June 2013 in fact aggravated her condition or caused disc or other damage was identified. Indeed, the evidence of the causation experts, discussed at some length below, tends to contradict that proposition. As was pointed out on behalf of Dr Fraser, for a significant period after the 20 June consultation with Dr Stening, the appellant’s work duties were modified and she was relieved of some of the heaviest tasks.

The appellant’s “secondary position” is not easy to follow. As explained during the course of argument on appeal, it was said:

This appears to be a submission that the appellant’s cause of action was complete at some (unspecified) point after 24 May 2012, and before June 2013. And it may well be the case that she did have a complete cause of action at that time (although the evidence did not establish it). But that was not the cause of action on which the appellant sued. As the submission acknowledged, damage is the gist of a cause of action in negligence. And the cause of action on which the appellant sued was based upon damage constituted by her chronic pain syndrome.

It was incorrect to say, based on the evidence of Dr Stening, that the appellant had established causation of damage constituted by disc and other damage. All that Dr Stening’s evidence established was that activities of the kind in which the appellant engaged in the child care centre could cause disc and other damage. It is also incorrect to say that the appellant pursued a separate case of damage constituted by disc and other damage, short of her principal case, that Dr Fraser’s negligence was the cause of her subsequent spinal surgery and consequent chronic pain condition. Section 5D(1) of the Civil Liability Act requires a determination that negligence was a necessary condition of “particular harm”. The “particular harm” on which the appellant sued was her chronic pain condition. True it is that the appellant asserted that disc damage attributable to inappropriate work and activity against which she should have been advised was a step on the way to the ultimate harm on which she sued. She did not, as I read the materials put before this Court, advance a separate cause of action based on harm constituted by disc damage. At least, this Court was not directed to any such proposition. Had the appellant (successfully) advanced such a case, the damages awarded would have been for a closed period ending in June 2013, and excluding the chronic pain condition, the 2013 surgery being a different, and non-negligent, cause of different harm.

The submission that the primary judge’s characterisation of the appellant’s case was “not correct” should be rejected. The appellant’s “secondary position” was not a case made at trial.

It was asserted, in ground 4(b) of the appeal, that the primary judge erred in finding that no damage or injury was sustained by reason of Dr Fraser’s breach of duty. The primary judge made no such finding. Ground 4(b) is a clear reference to [188] of the primary judgment, where the primary judge said:

That was correct. The remainder of [188] makes clear that his Honour appreciated that the appellant’s case was that she subsequently accumulated damage by continuing to participate in unsuitable employment and activities, employment and activities that she should, and would, but for Dr Fraser’s breach of duty, have been advised against.

Ground 4 nominates 7 asserted errors in the factfinding process. Not all were addressed in submissions. Those that were mentioned were:

Ground 4(b) has been addressed above. The other matters are subsumed in the analysis of causation below. Ground 4(a) appears to relate to the appellant’s “secondary position” and has been addressed. The submissions made with respect to Grounds 4(f) and 4(g) attacked what was said to be an “implicit” finding that surgery for the appellant was inevitable (regardless of Dr Fraser’s negligence). It was asserted that the finding was wrong because it erroneously assumed that the appellant had spondylolisthesis “where in fact there was no evidence to support that proposition”. Enough has already been said to dispose of those grounds.

The question whether the appellant suffered from spondylolysis or spondylolisthesis was an unfortunate distraction from the real issue which was whether the alternative treatment that the appellant would have received had Dr Stening been advised of the existence of spondylolisthesis would have allowed her to avoid the 2013 surgery. The real issue for determination was, as it had always been since Dr Fraser’s admission of breach of duty, whether that breach of duty was the cause of the appellant’s present chronic pain condition. That would be so if the alternative treatment plan Dr Stening would have implemented would have averted the progression of the appellant’s condition, to the point where the 2013 surgery was necessary.

The primary judge devoted a significant segment of the primary judgment to this question, under the heading:

His Honour referred in detail to the submissions advanced by the parties and the evidence relied on to support those submissions. That evidence supports the conclusion he reached in [223], set out in full above. He noted the competing cases, which were, put succinctly, the appellant’s contention that appropriate treatment would have allowed her to avoid surgery, against Dr Fraser’s contention that, regardless of his negligence, the appellant inevitably faced surgery.

It is necessary to return briefly to the report prepared following the first causation conclave. The participants were asked, on the assumption that the appellant had been diagnosed with an L5/S1 spondylolisthesis in June 2012 or December 2012, what treatment would have been given to her and how that treatment would have affected the progression of the spondylolisthesis. All agreed that, at both times, the appellant would have been managed by continuing “with expectant management”, with regular reviews, and advised to return in the event of change in symptoms, with annual X-rays to monitor for “silent progressive slip”, and warned not to engage in body contact or violent sports. Professors Sekel and Dan and Dr Rutkowski considered that additional cautionary information about possible symptoms, and the need to seek urgent medical advice if she experienced those symptoms, should have been given and that she should not attend certain “allied health care” practitioners. Interestingly, in these considered responses, no mention was made of avoiding the kind of employment activity in which the appellant was engaged.

All participants in the conclave agreed that the proposed treatment plan would not have affected the progression of the appellant’s spondylolisthesis. They said:

The participants were then asked (Question 9) whether, with that treatment, it was “likely” that the appellant would have come to surgery, and if so, what sort of surgery and when. All of the experts in the conclave (including Professor Sekel) agreed:

Professor Sekel added that, if the spondylolisthesis had remained at Grade 0, I or II the appellant “may well have never required surgical treatment”, but that if it had progressed to Grade III or IV it was more likely than not that she would have required surgery of the type that she in fact underwent. Professor Dan agreed.

Dr O’Neill considered that it was not possible to be more specific, other than to state that the surgery was likely to have occurred in any event at some stage in the first 6 months of 2013. In oral evidence Dr O’Neill said that he did not think that, by 2012, there was anything that could be done conservatively that would have altered the natural progression of the disease over the following 12 months.

For his report of 7 November 2019 Dr Drnda was asked to express a view, on the balance of probabilities, assuming that appropriate medical advice had been given to, and heeded by, the appellant, what was the likely course of her condition. His response was:

Different views were expressed following the second causation conclave. A question posed to the experts was whether, had the appellant been provided with conservative management and treatment, including advice as to limiting physical activities, at various times (including June 2012) and had complied with that advice, what would have been the likely clinical course and, in particular, whether her spondylolisthesis would have stabilised or progressed and whether she would have come to some form of surgery notwithstanding the conservative management/treatment.

Professor Dan and Dr Tuffley considered that the appellant’s spondylolisthesis would still have progressed because it is an inherent characteristic of the disorder. They added:

Dr Drnda and Professor Sekel agreed with one another, giving different reasons. Professor Sekel said:

Dr Drnda said:

In oral evidence Dr Drnda said that the appellant, if appropriately managed:

Professor Sekel agreed with the proposition put in cross-examination that the appellant was “congenitally” at significant risk of slip progression, and had only “a chance” of avoiding surgery.

The primary judge also noted evidence of “several idiosyncratic characteristics” of the appellant’s anatomy identified by Dr Fraser that put her at a significantly increased risk of suffering slip progression in the spondylolisthesis with a consequential need for surgery to address it. These were the shape of her L5 vertebra and her sacrum, anatomical “deficiencies” in her facet joints, and that she was, as at 24 May 2012, skeletally mature (indicating that the slippage had already occurred).

Notwithstanding the opinion of Professor Sekel that, if appropriately treated in June or December 2012, the appellant would have “stabilised out”, the overall medical evidence was, as the primary judge found, insufficient to establish, on the balance of probabilities, that that was the case. A “chance” or even “a good chance” is not a probability.

I would reject grounds 1-3 of the appeal.

It is worth repeating the terms in which ground 5 is pleaded:

The concept of the award of damages based on a “loss of a chance” is most commonly associated with the decision of the High Court in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 (Sellars), with respect to whether, for the purposes of s 82(1) of the Trade Practices Act 1974 (Cth), loss of an opportunity to obtain a commercial advantage or benefit amounts to recoverable “loss or damage”.

It is conclusively established that, in a claim for damages for personal injury caused by medical negligence, proof of a lost opportunity for a better outcome of treatment is insufficient. Damage (injury) must be established on the balance of probabilities. The concept of loss of a chance is inapplicable in such a claim: Tabet at [46]-[47] per Gummow ACJ; at [111] per Kiefel J; at [66]-[67] per Hayne and Bell JJ.

The premise underlying Ground 5 is that, notwithstanding that he referred to and quoted from Tabet, the primary judge nevertheless proceeded on the basis that the appellant’s claim was for “loss of a chance”. The proposition is untenable. Had the primary judge proceeded on that basis, error would undoubtedly have been established. But the primary judge did not commit that fundamental error.

Thirteen paragraphs of written submissions appear under the heading “Loss of a Chance (Ground 5)”. None explicitly asserts that the primary judge did proceed on the basis that the appellant’s claim was for loss of a chance for a better outcome from the treatment she would have received from Dr Stening absent Dr Fraser’s negligence. The submissions renewed the attack on the acceptance by the primary judge that the appellant suffered from spondylolisthesis (pars 78, 79, 87). That issue has been disposed of above. The submissions also attacked the reasoning on the issue of causation (pars 87, 89); restated, erroneously and irrelevantly (par 83) that the primary judge had found that Dr Fraser’s breach had caused no loss or damage (as noted above, what the primary judge found in the paragraph cited was that no immediate damage was caused by the breach); and asserted:

No elaboration or explanation was offered for this bald assertion. In Tabet four members of the High Court emphasised that, in a claim in tort for damages, causation of damage is to be established on the balance of probabilities: see, for example, Gummow ACJ at [46]-[47] (citing Brennan J in Sellars), and Kiefel J at [111]. In a passage extracted by the primary judge, Hayne and Bell JJ said:

The primary judge was acutely aware of the distinction between proof of damage on the balance of probabilities, and proof that appropriate treatment by Dr Stening would have offered the appellant a chance of a better outcome (in this case, the avoidance of surgery and the consequent chronic pain condition). That is most clearly seen in [226] of the primary judgment, extracted above. His Honour expressly referred to the opinions of various of the specialists, and was unable to be satisfied that a conclusion that the appellant, if treated properly, would have had a chance of avoiding the surgery and thus the chronic pain syndrome equated to proof on the balance of probabilities that she would have done so. There was no error in that approach. The reference to Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 is, to say the least, obscure, and no attempt was made to explain it. The decision of the High Court in that case was concerned with the assessment of damages after liability (including causation) has been established. In the passages of the primary judgment said to disclose error the primary judge was addressing a liability issue – causation. Those passages had nothing to do with the assessment of damages.

Ground 5 should be rejected.

A notice of contention filed by Dr Fraser, asserting that the defence under s 51 of the Civil Liability Act should have been upheld, was not pursued.

In my opinion no ground of appeal has been made out and the appeal should be dismissed with costs. The orders I propose are: