Briggs v Hillier - [2025] NSWSC 1021

Supreme Court

New South Wales

Medium Neutral Citation: Briggs v Hillier [2025] NSWSC 1021
Hearing dates: 24 June-19 July, 5-6 November, 16-17 December 2024
Date of orders: 8 September 2025
Decision date: 08 September 2025
Jurisdiction: Common Law
Before: Weinstein J
Decision:
(1)   Verdict and judgment for the defendant;
(2)   The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order;
(3)   Liberty to apply on seven (7) days notice if further or other orders are required, including as to costs; and
(4)   The exhibits and subpoenaed material are to be returned forthwith. Any exhibits returned must be retained intact by the party or person who produced that material until the expiry of the time to file an appeal or until any appeal has been determined.

Catchwords:
NEGLIGENCE — Breach — Standard of care — Medical negligence — Whether spinal surgery ought to have been performed — Whether spinal surgery performed negligently
NEGLIGENCE — Causation — Medical negligence — Whether lower back pain caused by spinal surgery
LIMITATION OF ACTION — Claim in negligence — Where time expired — Whether extension of time should be granted — Where defendant suffered both actual and presumptive prejudice

Legislation Cited:
Civil Liability Act 2002 (NSW), Pt 1A, Pt 2, ss 5B, 5C, 5D, 5E, 5I, 5O, 5P, 16
Evidence Act 1995 (NSW), ss 79, 140, Dictionary
Limitation Act 1969 (NSW) ss 18A, 50A, 52, 60G, 60I

Cases Cited:
Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649
Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370
Brisbane South Regional Authority v Taylor (1996) CLR 541; [1996] HCA 25
Clifton & Ors v Lewis [2012] NSWCA 229
Coleman v Barrett [2004] NSWCA 27
Dean v Pope [2022] NSWCA 260
Dell v Dalton (1991) 23 NSWLR 528
Doughty v Hillier [2024] NSWSC 1220
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hall v State of New South Wales [2014] NSWCA 154
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
McLean v Sydney Water Corporation [2001] NSWCA 122
Moran v Nominal Defendant [2008] NSWSC 804
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
Polsen v Harrison (No. 8) [2023] NSWSC 764
Port Macquarie Hastings Council v Mooney [2014] NSWCA 156
Reece v Reece (1994) 19 MVR 103
South Western Sydney Area Health Services v Gabriel & Anor [2001] NSWCA 477
South Western Sydney Local Health District v Gould (2019) 97 NSWLR 513; [2018] NSWCA 69
Southgate v Waterford (1990) 21 NSWLR 427
Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29
Strong v Woolworths Ltd (2012) 246 CLR 182;[2012] HCA 5
Varga v Galea [2011] NSWCA 76

Texts Cited:
Furzer Crestani Forensic Chartered Accountants, Assessment Handbook 2024

Category: Principal judgment
Parties: Erin Nicole Briggs (Plaintiff)
Terence Hillier (Defendant)
Representation:
Counsel:
M Cranitch SC / J Hillier (Plaintiff)
J Downing SC / M Hamdan / D Wilcox (Defendant)
Solicitors:
Commins Hendriks (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2020/00356341
Publication restriction: Nil

TABLE OF CONTENTS

Introduction

The Pleadings

Background

The Lay Evidence

The plaintiff
Nathan John Briggs
Suzanne Beverley Leah
The defendant

The Expert Evidence

Plaintiff’s Experts
Defendant’s Experts
The Joint Conferences and Joint Expert Liability Reports

The plaintiff’s clinical course established by the lay and expert evidence

The parties’ submissions
Approach to factual witnesses
Factual findings contended for

Conclusions

Limitation

Liability

Statutory Framework
Sections 5I and 5O
Causation

Damages

Disposition

JUDGMENT

Introduction

This case is about the treatment of the plaintiff by the defendant, an orthopaedic surgeon, in 1999. The plaintiff was an adept, aspiring young sportswoman who, in the years leading up to her surgery, experienced symptoms in her lower back. She attended upon the defendant following a course of conservative treatment to her lower back which commenced in 1995. The defendant performed surgery on the plaintiff on 11 March 1999, and attended upon her thereafter on several occasions again in 1999. She returned to see the defendant in 2019 – twenty years later – and she now brings a claim against him in negligence.
The matter is to be determined pursuant to the Civil Liability Act 2002 (NSW) (“the Act”). In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities: s 140 of the Evidence Act 1995 (NSW). The Dictionary of the Evidence Act defines the “case of a party” as the facts in issue in respect of which the party bears the legal onus of proof.
There is significant dispute between the parties in relation to the factual matrix underlying this case. The evidence was heard over some 20 days and counsel made oral submissions for parts of 4 days thereafter. The plaintiff’s claim essentially turns on the conversations she and her parents allegedly had with the defendant in 1999 and her lower back symptoms in the years after the surgery performed by the defendant. The defendant forcefully resisted the plaintiff’s claim and almost all matters are in issue including the historical factual matrix, limitation periods, breach of duty, causation and quantum of damages. Very little is agreed between the parties. As a result of the nature of the plaintiff’s claim as it evolved over the course of the trial, it is necessary to address the plaintiff’s lower back symptomatology over the course of the last 30 years in some detail, which I set out in my findings below.
In the event, I dismiss the plaintiff’s claim for the reasons that follow.

The Pleadings

The plaintiff alleges that the defendant negligently advised and managed the plaintiff over the period in which he treated her in 1999.
Referring to s 5D of the Act, the plaintiff pleads the scope of the duty of care alleged, at [6], [6A] and [7] of the Third Further Amended Statement of Claim (“3FASOC”) as follows:-

“6. At all material times the Defendant owed the Plaintiff a duty of care being the duty of care owed by a specialist orthopaedic surgeon to his patient.
6A The scope of the Defendant’s duty of care owed to the Plaintiff required the Defendant to provide advice and treatment to the Plaintiff to the standard of a reasonably competent medical practitioner practising as an orthopaedic surgeon to include taking steps (including precautions) that a reasonably competent medical practitioner practising as an orthopaedic surgeon would take to reduce the risk of foreseeable injury to the Plaintiff.
…
7. The scope of the Defendant’s duty of care to the Plaintiff, required the Defendant to:
a. provide advice and treatment to the Plaintiff to the standard of a reasonably competent medical practitioner and orthopaedic surgeon; and/or
b. take the steps that a reasonably competent medical practitioner and orthopaedic surgeon would take, to reduce the risk of foreseeable injury to the Plaintiff.”

The defendant admits these paragraphs.
Referring to s 5B of the Act, the plaintiff identifies the risk of harm at [46B] of the 3FASOC as comprising:-

“a. The defendant undertaking the surgery in circumstances where the plaintiff had and her parents had not been advised or properly advised of the risks of that surgery;
b. The defendant undertaking the surgery in circumstances where the plaintiff had no neurological deficit;
c. The defendant undertaking the surgery in the absence of sufficient pre-operative review, and conservative treatment including core strengthening exercises, inversion table, vertical traction, abdominal and back bracing exercises, regular still water swimming, and counselling the plaintiff to permanently cease playing hockey, competitive hockey, and/or vigorous sports;
cc. The defendant undertaking the surgery instead of treating the plaintiff conservatively including via core strengthening exercises, inversion table, vertical traction, abdominal and back bracing exercises, regular still water swimming, and counselling the plaintiff to permanently cease playing hockey, competitive hockey, and/or vigorous sports;
d. The plaintiff undergoing the surgery when it was unwarranted, there were contraindications and there was of no therapeutic benefit to the surgery;
e. The plaintiff was a child and had not yet stopped growing;
f. The specific risk arising from the defendant conducting the surgery in the circumstances where there had been no proper structured course of non-operative treatment;
g. The specific risk arising from the defendant conducting the surgery without first carrying investigations and/or diagnostic testing;
h. The specific risk arising from the defendant conducting the surgery without first referring the plaintiff for a second opinion;
i. Performance of the surgery as occurred;
j. Performance of the surgery in the absence of a spot lateral x-ray;
k. Continuing to perform the surgery following the removal of the loose laminae at L5;
l. The impossibility of achieving a successful uninstrumented onlay bone graft fusion in the facet joints in a child aged 14 years;
m. The failure of the bone graft to take and for fusion to be achieved following the surgery.

At [53] of the 3FASOC, the plaintiff alleges the following particulars of negligence:-

“a. failed to inform the plaintiff and her parents of the risks of the surgery;
b. failed to properly or adequately consider whether or not the plaintiff was a candidate for the surgery;
c. failed to properly or adequately consider the contraindicators for the surgery;
d. conducted the surgery when there were contraindicators;
e. failed to properly or adequately consider whether there were indicators upon which to undertake the surgery;
f. conducted the surgery on a child;
g. conducted the surgery;
h. performed unwarranted surgery in the form of the surgery;
i. failed to consider or properly consider referring the plaintiff for a second opinion;
j. failed to refer the plaintiff for a second opinion prior to the surgery;
k. failed to recommend conservative treatment;
l. failed to recommend conservative treatment or to conservatively treat the plaintiff instead of the surgery via core strengthening exercises, inversion table, vertical traction, abdominal and back bracing exercises, and/or regular still water swimming, and to counsel the plaintiff to permanently cease playing hockey, competitive hockey and/or vigorous sports;
m. failed to implement a proper structured course of non-surgical and/r conservative treatment;
n. failed to implement a thorough structured programme of physiotherapy, hydrotherapy, gym, and swimming supervised by a qualified and experienced physiotherapist;
o. failed to properly or adequately consider that at the time of the surgery the plaintiff’s spine had not matured and was undergoing change;
p. failed to consider or properly consider that fusion of the lumbosacral intervertebral disc segment was unlikely to have been achieved in a child aged 14 years;
q. failed to consider or properly consider the likely failure rate of the surgery in all of the circumstances;
r. failed to consider or properly consider the plaintiff’s type and degree of isthmic spondylolisthesis prior to the surgery;
s. failed to consider or properly consider that the plaintiff had no neurological deficit prior to the surgery;
t. failed to consider or properly consider that lumbosacral braces would be inadequate to supply the degree of immobilisation that onlay bone grafting may have achieved;
u. performed the onlay bone grafting procedure on the plaintiff;
v. failed to consider or properly consider that it would be impossible to achieve a successful uninstrumented onlay bone graft fusion in the facet joints in the plaintiff who was at that time a child aged 14 years;
w. failed to consider or properly consider that the surgery could cause damage to the left L4/5 facet;
x. performed the surgery that resulted in damage to the L4/5 facet;
y. damaged the L4/5 facet;
aa. failed to obtain a spot lateral x-ray prior to considering and/or recommending any surgery including the surgery;
bb. performed the surgery in the absence of a spot lateral x-ray;
cc. continued to perform the surgery upon removal of the loose laminae at L5;
dd. failed to recognise or properly recognise that there had been a failure of the bone graft to take and for fusion to be achieved following the surgery;
ee. failed to tell the plaintiff when he saw her in February 1999 and/or March 1999 that she should permanently cease playing hockey, competitive hockey and/or vigorous sports and instead performing the surgery;
ff. telling the plaintiff and/or her parents that she could return to hockey training, playing hockey and then competitive hockey on 12 May 1999, being 8 weeks after the surgery.”

In her Further Amended Statement of Particulars, the plaintiff alleges the following particulars of injury and disability:-

Particulars of Injuries Received

Injury to the back;
Spinal injury;
Anxiety;
Depression;
Pain;
Chronic pain;
Restricted movement;
Swelling left knee;
Urinary incontinence;
Injury to left leg;

Particulars of Continuing Disabilities

Ongoing pain in the lower back;
Ongoing pain in the lower limbs;
Reduced sitting tolerance;
Exacerbation of pain;
Difficulty sleeping;
Cramping and pain to legs;
Difficulties/limitations in completing employment;
Difficulty, restriction and increased pain to bending, stooping, lifting twisting and sudden movement;
Increased pain in cold weather;
Altered gait;
Inability to participate in pre-injury recreational activities;
Difficulty in performing household and domestic activities;
Requirement to take pain medication;
Requirement for further surgery;
Psychological symptomology;
Feelings of sadness;
Incontinence, urinary incontinence;
Loss of confidence;
Sense of guilt;
Increased pain during pregnancies;
Difficulties in winter months;
Feelings of depression;
Anxious feelings;
Feelings of exhaustion;
Requirement to do stretches and use heat packs;
Reduced intimacy with husband;
Avoiding activities;
Left leg numbness;
Constant lower back pain which worsens with activity radiating to both buttocks and the left leg, worse on left side;
Difficulty with static poses;
Pain aggravated by bending, stooping or lifting;
Inability to run;
Difficulty to squat;
Pelvis weakness;
Scarring;
Decreased sensation in left thigh; and
Chronic pain.

The defendant denies that he was negligent. In particular:-

He says that he was not negligent, as the provisions of s 5B(1) are not satisfied, taking into account the factors and principles in ss 5B(2) and 5C of the Act;

He denies that either factual causation or scope of liability are made out pursuant to s 5D of the Act; and

He relies upon the provisions of Pt 2 of the Act in relation to the plaintiff’s claim for damages and interest.

As to the whole of the claim, the defendant relies on s 5I of the Act and says that he is not liable to the plaintiff because the harm she suffered was, either in whole or in part, the result of the materialisation of an inherent risk.
Further, the defendant relies on s 5O of the Act and says that he acted in a manner that, at the time he provided professional services to the plaintiff, was widely accepted in Australia by peer professional opinion as competent professional practice.

Background

The plaintiff and the defendant prepared and tendered a chronology in accordance with the Practice Note which became part of the Joint Court Book. I have set out relevant parts of the chronology of the matter below, noting where there was a dispute between the parties. It is necessary to set out the chronology in some detail, as essentially all salient issues, apart from the existence and scope of the defendant’s duty of care to the plaintiff are in dispute. Further facts are dealt with in the plaintiff’s evidence, to which see below.
On 6 March 1998, the plaintiff complained of lower back pain and discomfort to her general practitioner, Dr Andrew Milliken. Dr Milliken diagnosed her with a urinary tract infection.
In January 1999, the defendant commenced public and private practice in Albury, NSW, and obtained admitting rights to Albury Base Hospital, Wodonga District Hospital and Albury Wodonga Private Hospital.
On 4 February 1999, the plaintiff underwent an x-ray of her spine.
On 8 February 1999, the plaintiff attended an appointment with Mr Shane Robertson at Healthfocus Physiotherapy.
On 12 February 1999, the plaintiff attended a consultation with the defendant for the first time with her mother and father at the defendant’s rooms in Albury. The defendant recorded the following in his notes:-

“2-3 years ago developed some
thoracic + shoulder pain. Settled
well.
Physio tried needling – helped
considerably.
O/E [on examination] Healthy young woman. Plays high
level sport.
Forward flexes freely + recovers well.
Uncomfortable in extension.
Prone springing � [gives] significant lumbar
pain
SLR [straight leg raising] R [right] = L [left] = 70° [degrees] � [gives] back pain
Hamstrings tight
Neurologically fully intact - MP [muscle power]
- R-B [reflexes brisk]
- Sensation

XRays: Grade 1 spondylolytic
spondylolisthesis
Options discussed
For trial of pars infiltration via
L5-S1 facet joints. See SOS”

On that day, the defendant wrote to the plaintiff’s general practitioner, Dr Carmel Ling. Relevantly, the letter states:-

“Thank you for asking me to see this 14 year old student who has the known grade 1 spondylolytic spondylolisthesis of L5 and S1.
She is in physical excellent shape given her quite heavy sporting commitment and the physio programme has been working well with her.
I find that she is still quite painful when stressed across the L5 pars defects and I feel this is explaining the associated erector spinae muscle spasm which is producing some discomfort in the upper part of her thorax and neck and shoulder area.
I have arranged for her to have the L5 pars defects infiltrated with local anaesthetic and steroid via the L5-S1 facet joints at BMI.
If that settles her down effectively, I would be happy for her to resume her sport but have asked them to come back if she still is troubled.
Beyond that, I have suggested I review her with a spot lateral x-ray in 6 months time to ensure that the spondylolisthesis is not increasing.”

On 18 February 1999, the plaintiff underwent a fluoroscopic guided lumbosacral spine facet injection.
On 23 February 1999, the plaintiff attended a consultation with the defendant accompanied by her mother and father at the defendant’s rooms in Albury. The defendant referred the plaintiff to Mr Robertson at Healthfocus Physiotherapy. The defendant recorded the following in his notes:-

“Injections done 4 days ago
Have not been helpful.
To see Shane Robertson [physiotherapist] for I/F [interferential therapy]
Reassess then”

On 3 March 1999, the plaintiff attended a consultation with the defendant where he recorded the following notes:-

“Not settling. Injections only briefly
helped. Discussed with Erin + both
parents what would be involved
in LS [lumbosacral] P/L [posterolateral] fusion. Booklet given.
To consider.”

On or around 11 March 1999, the plaintiff was admitted to Albury Wodonga Private Hospital as a private patient under the care of the defendant for an uninstrumented posterolateral fusion which he performed performed that day. After the surgery, on a date not agreed upon by the parties for the purpose of the chronology, the plaintiff was discharged from Albury Wodonga Private Hospital wearing a ladder back brace. No operation notes are available.
On 14 April 1999, the plaintiff attended the defendant for a 5-week post-operative consultation accompanied by her mother and father at the defendant’s rooms in Albury. The defendant recorded the following in his notes:-

“5/52 since operation.
Coping very well.
Does not need
brace
See 4/52 XOA [Xray on arrival]”

On 12 May 1999, the plaintiff underwent an x-ray of her lumbosacral spine and attended a consultation with the defendant accompanied by her mother and father at the defendant’s rooms in Albury. He recorded the following in his notes:-

“Coping well.
Xrays show P/L [posterolateral] mass filling in.
Still not fully sound on L [left]
side but she is fully active +
wishes to recommence sport now.
Plan clinical check in 8/52
(Rev) = NC)”

That day, the defendant wrote to the plaintiff’s general practitioner and said, relevantly:-

“Following my earlier assessment of Erin and my comments to you, she had the pars defect injections but they were not helpful and I referred her onto Healthfocus for some interferential but that also didn’t help her so Erin discussed with me what would be involved in stabilising the lumbosacral spondylolisthesis.
She was very positive about going ahead with that surgery, which was done some 8 weeks ago. Updated x-rays today show that her posterolateral fusion is filling in well and Erin has been very comfortable and quite active since an early stage in her postoperative recovery. She wishes to resume her competitive hockey and with the bone graft looking quite mature I have allowed her to do that given that I am satisfied she has regained such a lot of flexibility so early.
She has been a very committed and motivated girl and has certainly done well at this stage after that surgery. At the time of operation I did also take away the loose L5 laminae to stop the ongoing pars irritation.”

On 7 July 1999, the plaintiff attended a consultation with the defendant accompanied by her mother and father at the defendant’s rooms in Albury. He recorded the following in his notes:-

“Coping well
Moving very freely. Fully back
at hockey.
Some muscle tenderness at PSIS [posterior superior iliac spine]
in paraspinal muscle attachment.
To apply Voltaren.
See 2/12 XOA (105=51)”

On 9 September 1999, the plaintiff attended a consultation with her general practitioner, Dr Andrew Milliken, who referred her to Healthfocus Physiotherapy.
On 20 September 1999, the plaintiff underwent a lumbosacral spinal x-ray. The plaintiff also attended a consultation with the defendant on this date, accompanied by her mother and father at the defendant’s rooms in Albury. The defendant recorded the following in his notes:-

“Hibbs view suggest P/L [posterolateral] bridge
has developed.
She is very comfortable + untroubled
with hockey etc.
See SOS.
(105=51)”

This was the plaintiff’s last consultation with the defendant until 20 February 2019, almost 20 years later.
From February 1999 onward, the plaintiff attended at least 50 sessions of physiotherapy. The reasons for and the number of the plaintiff’s attendances were the subject of some dispute between the parties, which is discussed below.
In 2002, the plaintiff graduated from year 12 at high school.
By 2007, the plaintiff was employed as a fulltime employment-based support worker for Yes Youth and Family Services (“YES”). In that year, she was promoted to a fulltime team leader role. I observe that in cross-examination at T695, the plaintiff agreed that she commenced employment at YES in 2006 (based on YES records).
On 7 May 2009, the plaintiff attended her first obstetric appointment with Dr Peter Mourik, when she was 20 weeks pregnant.
In September 2009, the plaintiff commenced maternity leave from her position at YES.
On 27 September 2009, the plaintiff gave birth to her first child.
In approximately September 2010, the plaintiff returned from maternity leave at YES working on a part-time basis in a team leader role.
On 18 April 2013, the plaintiff gave birth to her second child.
In 2014, the plaintiff accepted a redundancy package from YES.
In 2015, the defendant moved into semi-retirement and ceased operating as a principal surgeon. From 2015 to early 2021, the defendant operated as an assistant to Dr Anil Nair in Sydney and Dr John Choi in Melbourne.
On 7 March 2017, the plaintiff gave birth to her third child.
On 11 January 2019, the plaintiff underwent an x-ray of her lumbar spine.
On 29 January 2019, the plaintiff underwent an MRI scan on her lumbar spine.
On 6 February 2019, the plaintiff was referred by her general practitioner, Dr Gaini Allen, to the defendant.
On 20 February 2019, the plaintiff attended a consultation with the defendant who referred her for a bone scan. He recorded the following in his notes:-

“34
Has had 3 children.
Has had a number of treatments with
Shane Robertson.
Present Time:
Mainly lumbar ache
Some ache into both hamstrings.
Has a L [left] knee Bakers cyst.
Had P/L [posterolateral] fusion for Grade 1
spondylotic spondylolithesis.
Done without implants.
MRI L5-S1 disc alignment 45° [degrees].
Early L5 Modic EPR [end plate reaction]
? loading L4L5 facet reaction.
? discogenic.
O/E [on examination] FF [forward flexes] to upper shin.
Recovers well
Limited extension but no pain.
Plan: She will chase up plain Xrays.
Bone scan LS [lumbosacral] spine
Letter to GP then.”

On 6 March 2019, the plaintiff underwent a bone scan.
On 13 March 2019, the plaintiff attended a consultation with the defendant. He recorded the following in his notes:-

“Plain film [Xrays] show L5-S1 P/L [posterolateral]
Fusion is stable - 45° [degree] S1 disc
inclination
Bone scan shows L4-L5 tilt to R [right]
+ L [left] L4-L5 facet reaction.
Plan: B/L [bilateral] L4-L5 facet injections.
1/52 � [refer to] Mandy [Mandy Hobbs – senior spinal physiotherapist]

On 20 March 2019, the plaintiff received facet joint injections.
On 11 April 2019, the plaintiff attended a consultation with the defendant at his rooms in Albury. He referred the plaintiff to Ms Mandy Hobbs at Healthfocus Physiotherapy for physiotherapy treatment. He recorded the following in his notes:-

“Injections completed.
Has not yet commenced with
Mandy – organised.
Orudis/Nexium
FSE [flexion stretching exercises]
4/52 prn
(105)”

On 16 May 2019, the plaintiff attended a consultation with the defendant who referred her to Dr Nair and Dr Kirwan, orthopaedic surgeon, in relation to her left knee. On that date, the plaintiff underwent an x-ray on her lumbar spine. This was the last time the plaintiff consulted the defendant. He recorded the following in his notes:-

“Remains troubled.
For Flex/Ext [Flexion/Extension] Xrays today
Also L [left] knee popliteal cyst is
becoming more of a nuisance.
For MRI L [left] knee.
Xray today (F/E) [Flexion/Extension] show some
L5 movement.
To consider ALIF [anterior lumbar interbody fusion]
� [referred to] Anil [Dr Anil Nair – spinal surgeon]
Also L [left] knee popliteal cyst issue
� [referred to] DK [David Kirwan]
(105)”

The plaintiff thereafter attended two consultations with Dr Nair, who wrote to the defendant on 25 June and 5 September 2019, saying, relevantly:-

“25^th June 2019…
Many thanks for referring this 35 year old mother of three with a noticeable popiteal (sic) cyst on the left side. She does not have any relevant knee symptoms. I note you are contemplating an anterior reinforcement for her lumbosacral fusion. Erin has pain in the left leg that radiates from her buttock, which is obviously not related to the cyst.
Examination revealed a very normal knee apart from one or two degrees loss of flexion and the moderately tense popliteal cyst.
As Erin is not particularly vain about the lump, she has had no cuffed symptoms to suggest a recurrent fluid leak, I would leave the cyst be. If things change and we are contemplating removing the cyst then an MRI scan of the knee would be done around that time to exclude an intra articular cause. As she will likely get relief of her leg pain from the forthcoming spine surgery, I have recommended that she await that expected benefit before we do anything about the knee, if at all.
Erin is comfortable with the above decision. She knows that the cyst does not represent a sinister disease. I have left follow up arrangements with her.”
“05/09/2019…
I reviewed Erin. She remains troubled by lower back and lower extremity radicular symptoms. She presented for discussion specifically about logistics of surgery. I have advised her that I continue to favour an anterior lumbar interbody fusion. Unfortunately, she did not bring her imaging. I need to review that prior to deciding which levels would be incorporated and whether or not there will be any posterior reconstruction required. …”

On 16 December 2020, the plaintiff commenced these proceedings against the defendant.
On 8 March 2021, the plaintiff gave birth to her fourth child.

The Lay Evidence

The plaintiff

The plaintiff relied upon and adopted three Evidentiary Statements dated 21 February, 20 March and 4 June 2024, and an affidavit affirmed on 23 May 2024 (which dealt with limitation matters) was read in the proceedings. She was cross-examined at great length by Mr Downing SC, who appeared on behalf of the defendant with Ms Hamdan and Mr Wilcox.
The plaintiff gave evidence that she started playing competitive hockey in 1994 when she was 10 years old. From 1995 to 2001, she played in various local and representative teams and competitions, and she would sometimes play in teams above her age group or in the open women’s team when she was a teenager. She qualified for the Victorian representative team in 1997 and was made captain of that team in 1998.
The plaintiff said that at school in 1995, a chair was pulled out from underneath her and she fell on the floor on her tailbone (“the School Incident”). She experienced some pain and took at least a weekend off playing tennis before returning. In her statement, she said that the pain had resolved prior to the commencement of the hockey season in May 1995 and that she did not take time away from hockey as a result of that injury. However, in cross-examination at T87 she said that she was in “quite a lot of pain” from 1995 to 1999. Later, at T135, she said that her best recollection was that the pain reduced but did not wholly resolve.
In cross-examination, the plaintiff stated that she had regular physiotherapy and did stretching exercises commencing about the time of the School Incident. In 1998, the plaintiff regularly attended upon Mr Shane Robertson, physiotherapist at Healthfocus, during the hockey season. At T156, she said that her low back pain did not resolve and gradually worsened to 1999 despite her regular physiotherapy and stretching.
On 8 February 1999, the plaintiff presented to Mr Robertson with lower back pain. She stated that Mr Robertson said words to the effect that “something is not right with your back pain, I think we should get an x-ray just to see and make sure we rule out any other problems”. This was the same back pain that she had had since the School Incident.
On 9 February 1999, the plaintiff presented to her general practitioner, Dr Carmel Ling, and indicated that she had been experiencing lower back pain for “a while”. The plaintiff said that Dr Ling said words to the effect that “on examination it appears to be muscular and you have no tenderness over the area but I will refer you to Dr Hillier”.
On 12 February 1999, the plaintiff was reviewed by the defendant in his rooms in Albury with her parents. She alleged that the defendant said words to the effect that “from the injury at school you have a fracture in your vertebrae and it is pressing on your spinal cord and causing the pain”. In cross-examination at T160, the plaintiff said that this was based on her recollection of events. At T162, she agreed that she never had cause to think about the detail of that consultation until late 2019. At T165-166, the plaintiff said that she never made any written note with respect to what occurred when she saw the defendant and that she had not had any discussions with her mother about the various attendances with the defendant.
After the 12 February 1999 consultation, the defendant referred the plaintiff for spinal cortisone injections. In cross-examination at T166, the following exchange occurred:-

“Q. Do I take it that you don’t recall now Dr Hillier saying anything then about treatment options other than simply undergoing injections to your back?
A. I don’t recall any other treatment options being made, being made aware of.
Q. Do you say you have an actual recollection that nothing else was discussed or you’re simply saying you don’t remember?
A. There, there was no other treatment options discussed.
Q. At that first consultation.
A. Yep.”

After a short adjournment, Mr Downing took the plaintiff to her 4 June 2024 statement. In that statement, she said that the defendant did not describe the surgery as a form of fusion and that the defendant never discussed a lumbar brace. The relevant parts of the exchange at T169-171 are as follows:-

“Q. What you said, and I’m paraphrasing but please read paragraph 21 to yourself, is that you do agree that Dr Hillier described surgery on that occasion, but you say that all he said was if the injections don’t work you will need surgery, without going on and saying anything about a fusion?
…
Q. Sure. What you were trying to communicate in that paragraph was that you had read paragraph 51 of Dr Hillier’s statement. Do you agree with that so far?
A. Yes.
Q. In response to it you agree that on that first occasion, 12 February 1999, he did talk about surgery?
A. Yes.
Q. But you say it was in the context of him not mentioning a fusion and simply saying, “If the injections don’t work, you will need surgery”?
A. Yes.
Q. When you gave evidence a moment ago and I asked you about 12 February 1999, you told me that you had an actual recollection that there was no mention of surgery on that first occasion. Do you remember that just some minutes ago?
A. Yes.
Q. In your second further evidentiary statement you say something different. That is, “Having now seen what Dr Hillier says I do recall him mentioning surgery but only in this limited way”.
A. Yes.
Q. Which version is correct?
A. Yes, the latter version that you – that, “If the injections don’t work you’ll need surgery”.
Q. So you do now remember him mentioning surgery?
A. Yes. I got confused with the dates of at which appointment.
Q. Do you agree that it was only after reading what Dr Hillier said that you were triggered to have a recollection of any discussion about surgery?
A. Right now?
Q. No. When you prepared your first statement you set out your account of what occurred to your recollection on 12 February 1999.
A. Yes.
…
Q. In that, which was your account before seeing anything Dr Hillier had said, you didn’t describe any discussion about possible surgery.
A. No, I didn’t in that. I, I have not.
Q. I thought your recollection in your evidence earlier today was that the only discussion in terms of any form of treatment was the injections to your back at that first—
A. Yeah.
Q. –consultation.
A. No. That’s not correct.
Q. Tell me what is correct, then.
A. That he gave us the two options and it was to have the spinal injections and, if they didn’t work, then surgery.
…
Q. Do you say you knew that at the time you came to prepare your first statement?
A. Yes.
Q. Why did you not include that?
A. I’m not sure why I didn’t.”

Following that exchange, Mr Downing asked the plaintiff about the discussion of “fusion” surgery at the 12 February 1999 consultation (at T171-172):-

“Q. Is it also possible that he said something about not just surgery but fusion surgery if you didn’t get much relief from the injections?
A. Yes.
Q. Is it possible he might have mentioned that?
A. Yes.
Q. Do you believe it’s possible he might have said something then about whether you might get some benefit out of using a lumbar brace?
A. No.
Q. You’re confident there was no discussion about that?
A. Confident.”

In the plaintiff’s statement of 4 June 2024, she said that she never wore a lumbar brace pre-operatively. The following exchange took place in cross-examination at T137:-

“Q. Go to the next page, please: 757. You’ll see that this relates to a 9 May 97 attendance at the Lavington clinic, but also it seems that there is a fee there for a back brace?
A. Yes.
Q. Pausing there. The back brace would suggest, would you agree, that you were there for a problem with your back?
A. Yes.
Q. Do you recall – and this is May 1997 – getting a back brace because of issues you were having with your back?
A. Yes, I do recall getting a back brace.
Q. Did you wear it?
A. Yes.
Q. When did you wear it? Was it all the time, or for particular activities?
A. It wasn’t, it wasn’t all the time. When I wasn’t playing sport. It would be more of a therapeutic thing between sporting, to sleep in when I was at home. Those kinds of things.”

Later in cross-examination at T229, the plaintiff said that she believed that when she said in her 4 June 2024 statement that she had not worn a lumbar brace prior to the surgery, that was written “in relation to [her] dealings with Dr Hillier”.
The defendant referred the plaintiff for further physiotherapy after a consultation on 23 February 1999.
On 3 March 1999, the plaintiff said that she returned to the defendant for a further consultation with her parents. She alleged that he said words to the effect that:

“You will need surgery to fix your back. You are my youngest patient. It is a cutting edge procedure. It’s the best option for you. I will use part of your pelvis to fuse your spine which is a good thing because you are young and will not have to have any foreign parts in your body. … I understand that you wish to keep playing hockey, I have operated on quite well-known sports stars.”

The plaintiff stated that the defendant:-

did not explain any risks of the surgery to her;

did not discuss with her that there might be a chance that the part of her pelvis he was using in the surgery would not fuse to her spine; and

made no mention before the surgery of “failed back surgery”.

With respect to the surgery and consultations leading up to it, the following exchange occurred in cross-examination at T352-353:-

Q. I'm sorry. It's clumsy wording. But would you agree that that was the most important factor for you at that point, was controlling your lower back pain to the point where you could continue on with hockey?
A. No, I'd say the most important thing was the back pain.
Q. But the back pain obviously was at that point debilitating for you? It was really affecting you, wasn’t it?
A. Yes.
Q. You obviously wanted that to stop?
A. Yes.
Q. You had at that point a real fear, didn’t you, about what would happen in future if the back pain stayed as it was or even got worse?
A. Yes.
Q. And at the front of your mind was what that might mean for hockey?
A. I can't recall if it was hockey that was on my mind then. It was more the pain, I believe.
…
Q. Your evidence about the leadup to going to see Dr Hillier is that the back pain was significant?
A. Yes.
Q. It was debilitating?
A. Yes.
Q. And there was a relationship between it and the hockey?
A. Yes.
Q. I take it you had a real worry about whether you could continue on with hockey?
A. I don't know that at that point, I wasn’t thinking about that. I was thinking about the back pain.
Q. Hockey was a huge part of your life?
A. Yes.
Q. Did it not occur to you that if the pain stayed as it was or even got worse that could mean hockey would be a really difficult thing for you to continue with?
A. Yes.
Q. It might become impossible for you?
A. I don't know if I had those thoughts then.
Q. But that was very much what you did not want to happen, was it? That is you did not want to end up in a position where you couldn’t play hockey?
A. I don't know what I would've thought at that time.
Q. You can't recall at all?
A. Not - I, I don't think I was thinking about whether or not I was continuing on playing hockey on - specifically for my back pain, so--
Q. So you say you gave no thought at all to what the back pain might mean in future if it continued or got worse?
A. I don't think at 14 I was really considering things like that. I was - in the moment it was around my back pain.

Mr Downing then took the plaintiff to her 21 February 2024 statement at [52] where she said:-

“At this time I lived and breathed hockey and thought that the surgery would resolve the problem I had with my back and I could continue to play including the option of professionally.”

The plaintiff then conceded in cross-examination that hockey was in fact part of her thought process behind seeking treatment from the defendant (at T354).
In her 21 February 2024 statement, the plaintiff said that following surgery on 18 March 1999, the defendant told her and her parents that the operation was a success. She said that she was discharged from hospital in a wheelchair and back brace on or about 20 March 1999. In her 4 June 2024 statement, she said that the correct date of surgery was 11 March 1999. In cross-examination at T183-184 and after being referred to documentary evidence, the plaintiff agreed that the surgery in fact took place on 11 March 1999 and that she was discharged on 18 March 1999.
During the plaintiff’s cross-examination at T241-246, the plaintiff said that in addition to formal physiotherapy consultations throughout her period of recovery from the surgery from 13 March 1999 to 13 May 1999, she completed a rehabilitation programme whereby she would attend at her physiotherapist’s rooms weekly to perform exercises using the equipment there.
On 14 April 1999, the plaintiff said that she attended a 5-week post-operative consultation with the defendant with her parents. She stated that the defendant remained positive about the outcome of the surgery. In cross-examination at T229, she said that she had recovered very well from the surgery and that there had been a very significant reduction in lower back pain. She agreed that Dr Hillier told her that she could take the lumbar brace off at that consultation, and she said that “not long afterwards” she had ceased wearing the brace (at T231). She said that her back continued to feel good and in fact improved from the date of that appointment in April onwards (at T232).
On 12 May 1999, the plaintiff said that she attended a further consultation with the defendant. She alleges that she asked the defendant whether she could return to playing hockey at that time, to which he responded with words to the effect that “the fusion is looking good so you can go back to playing hockey”. The plaintiff said in cross-examination (at T234-235) that by the time of this consultation, she was feeling “very good” in her lower back and that she said words to the effect that she was “doing well or coping well”.
The plaintiff said that she returned to hockey in May 1999. In cross-examination (at T236), she accepted that there might have been “perhaps a little more” than a month of training before she returned to matches. The plaintiff also said that she returned to hockey in a graduated way according to how she felt.
The plaintiff said that she presented to the defendant on 7 July 1999 with back pain, and he told her that she could use Voltaren cream. At T249, the plaintiff said that this was based upon her independent recollection.
In cross-examination at T240, the plaintiff agreed that after the surgery, when she had a particular problem with her lower back, she would attend a physiotherapist. At T246, after being directed to the absence of any invoices for physiotherapist consultations between 7 June 1999 and 13 July 2000, she agreed that she did not believe that there had been a problem with her back that warranted her seeing a physiotherapist during that period. However, she stated that she attended upon Dr Milliken on 9 September 1999 because she had had a period of headaches for about two weeks with vomiting on one occasion (at T267). The plaintiff said that her symptoms at the time were over her upper back and lower neck. She was referred to Mr Robertson, physiotherapist. Mr Robertson reported back to Dr Milliken on 10 September 1999 recording that the plaintiff was suffering from headaches with protracted cervical posture. In cross-examination at T269, the plaintiff agreed that if she had had a problem with her lower back at that time, she would have told Mr Robertson about it.
The plaintiff attended upon the defendant again on 20 September 1999, when she alleges that he told her that everything “was good” and did not tell her there were any problems following the surgery. The following exchange took place in cross-examination (at T254-255):-

“Q. You’ll notice that again on this occasion, that is 20 September, you don’t say anything there in terms of how you were at the time.
A. Yes, that’s correct.
Q. Is that because you can’t now recall how you were at the time?
A. Yes.
Q. So the only postoperative appointment – I’ve now taken you through postoperative appointments that you attended, I want to suggest on 14 April 1999, 12 May 1999, 7 July 1999 and 20 September 1999. The only one where you say you can recall any symptoms that you were suffering is the 7 July 1999?
A. Yes.
…
Q. You can agree or disagree with what I’m going to suggest to you now, but what I’m going to suggest is that in fact your account of what happened at those four postoperative consultations is based entirely on you either reading or something describing to you what was in Dr Hillier’s notes, not what you can recall. Do you agree or disagree?
A. I disagree.
Q. You told him on 20 September 1999, didn’t you, that you were very comfortable in terms of your back?
A. I don’t recall.
Q. What’s your recollection of your condition at the time?
A. That I was doing okay.
Q. If he’d asked you how you would’ve been might you have said, “It’s fine. I’m very comfortable”?
A. Yep.
Q. Also you were able to play hockey without any problem at that point, weren’t you?
A. Yes.
Q. If he’d asked you about hockey you would likely have told him that?
A. Yes.
Q. You didn’t report to him any symptoms in your low back that were limiting your activities of daily living, did you?
A. No.
…
Q. You didn’t report to him any symptoms in your lower back at that point, 20 September 1999, that were limiting your hockey, did you?
A. No.”

The plaintiff said that she ceased playing representative hockey at the State level in 2000 because her lower back pain was such that she struggled with the travel to and from Melbourne for training. In cross-examination at T258, she said that she believed that she could not manage the travel in January or February 2000. However, at T262, she agreed that in the late 1999 to the early 2000 period, she did not report an issue with her back to any practitioner because she was not having a problem at the time. She said that she attended a physiotherapist consultation at Healthfocus Physiotherapy on 10 March 2000 for low back manipulation before a hockey tournament, that she continued to play hockey at the club and regional representative level, and that she received physiotherapy treatment as a means to an end because she wanted to play hockey.
In the context of her return to hockey, Mr Downing asked the plaintiff in cross-examination about when she believed that the low back pain reoccurred after the surgery (at T237):-

“Q. What I’m asking you is in giving us that answer by saying, “I believed it reoccurred when I’d been playing hockey for a while or a time,” is that based on what you can recall happening or just based on what you believe would have happened, because once you got back to hockey, it would have stirred your back up?
A. No, I recall that I, I was okay for a period of time, I can’t recall how long that was.
Q. Do you mean for a period of time during the 1999 season or do you mean over years?
A. In, in the couple of years that followed, yes.
Q. So that would take it through to about 2001.
A. Yes.”

The plaintiff said that she attended Healthfocus Physiotherapy for appointments on 30 August 2000, 4 September 2000, 11 September 2000, 22 September 2000 and 23 October 2000. The following exchange took place in cross-examination at T269-271 with respect to those appointments:-

“Q. In terms of why you were there, you say nothing in any of those paragraphs about the basis of your attendance, correct?
A. That’s correct.
Q. Is the reason that you don’t say anything because you have no recollection?
A. Yes.
…
Q. Do you believe those attendances related to your lower back?
A. I would assume so.
…
Q. Could they have been your upper back?
A. I don’t believe so.
Q. Could they have been your neck?
A. I don’t believe so, not for that many attendances.
…
Q. The way you came to the view that they related to your lower back is not because you can now recall the detail of each attendance, correct?
A. Yes.
Q. But you say to attend that many times, you don’t believe you’d ever done that except in respect of your lower back.
A. Yes, that’s correct.
Q. So that from the number and pattern of attendances over that period, you’ve drawn from that that it must have been about your lower back.
A. Yes.
Q. Do you have any recollection of having lower back symptoms in the second half of 2000 that required frequent treatment?
A. I don’t recall specifically.
Q. I thought your evidence before was that you did well, in terms of your recovery from surgery, for a couple of years after the surgery and it was really from about two years later that there was a worsening.
A. Yes.
Q. Wouldn’t that then suggest that you weren’t having problems in the second half of 2000 that would warrant frequent physio attendances?
A. No.”

The plaintiff attended Healthfocus Physiotherapy on seven occasions between 14 March 2001 and 26 July 2001. In cross-examination (at T274), the plaintiff said that she was not able to rule out that she attended the physiotherapist on one or more of those attendances about neck, upper back or headache symptoms.
The plaintiff said that she attended physiotherapy on 21 January 2002 for treatment of her neck and upper back. Physiotherapy records were only available to the Court from this date onward. In cross-examination at T275-276, the plaintiff said that she did not recall having any conversations with anyone about the physiotherapist notes for the attendance on 21 January 2002, but rather that it was based on her independent recollection.
I observe that up to 21 January 2002, it appears that the plaintiff’s account of why she attended the physiotherapist was substantially based on assumptions made or inferences drawn by her based on her hockey and work commitments and how she recalls feeling in a general sense. From that date onward, that is, when medical records were available, it appears that the plaintiff’s account of why she attended the physiotherapist was based on those assumptions and inferences as well as having been told by her solicitors about details in the contemporaneous medical records. For example, at T279, the following exchange took place in cross-examination:-

“Q. I’m sorry. You say in paragraph 106 that on 12 [August] 2002, you attended your GP because you had a sore and stiff back after playing hockey?
A. Yes.
Q. Is that a reference to low back?
A. Yes.
Q. Is your evidence about that attendance based on your recollection or someone telling you what’s in the notes?
A. I don’t recall that specific date, so I may have had a conversation with someone from Commins Hendriks.”

Mr Downing then took the plaintiff to the records from the Albury Central Medical Clinic:-

“Q. Do you see the last entry is 12 August 2002?
A. Yes.
Q. The notes do indicate, “Played hockey yesterday and afterwards, had bit of a sore back, and now stiff and sore”?
A. Yes.
Q. The note also indicates that on examination, there was some tenderness over the muscles in the back?
A. Yes.
Q. Then I’m not sure what the last bit reads. It’s “pursues something”. It looks like “counsellor”, but I’m not sure. But in any event, looking at that now, does that seem to be, looking at what’s recorded, what someone recounted to you from what was in the doctor’s notes that led you to say what you say about the 12 August 2002 consultation?
A. Yes.”

With respect to the following consultation with Healthfocus Physiotherapy on 19 August 2002, the following exchange took place in cross-examination:-

“Q. Get 107, please, so that’s also on page 12. There, paragraph 107, you describe, “A week later on 19 August, going to physiotherapy at Healthfocus for lower back pain after playing hockey.”
A. Yes.
Q. I’m going to ask you about the attendance. First of all, do you believe that that’s your recollection that’s the source of that statement or is it based on someone telling you what was in the physiotherapy notes?
A. Yes, in – someone having a conversation with me.
Q. That is one of your lawyers having a conversation about what’s in the notes and you providing your response as to what you believe occurred?
A. Yes.”

Then in 2003, a further example is at T284:-

“Q. Paragraph 112 to 116 you describe your physio appointments that year.
A. Yes.
Q. … So you say first of all you attended on 31 March but you say nothing about the basis for attending?
A. Yes.
Q. Then you say you attended on 13 June and again you don’t say anything about the basis for attending?
A. Yes.
…
Q. Then you say 29 July you went to physio and you say about this one it was for a sore back after your hockey and your mum paid.
A. Yes.
Q. You then skip ahead to 20 September 2004, is that intended to be 2003, is that just a typo where it says 2004?
A. Yes, I assume so.
Q. And you say that your mum paid.
A. Yes.
Q. In respect of the three where you don’t provide a description as to why you attended, were you hoping to convey that they were all related to issues with your low back?
A. I would have, I’ve made the assumption that they would have been for my back.
Q. You included them because you assume that if you were attending over that period at that frequency, it would have been because of issues with your low back.
A. Yes, as that was generally the case.
Q. So it’s not based on a recollection.
A. No.”

With respect to reporting a sore back after hockey to her physiotherapist on 29 July 2003, the plaintiff said that she was able to include that in her statement only because someone from her solicitors Commins Hendriks had told her that was what was in the records (at T285, 317).
In cross-examination (at T286), the plaintiff described experiencing severe pain in the lower back sometimes in 2000, 2001 and 2002 whilst she was playing hockey. I observe that (at T288), the plaintiff then said that by 2001 during the hockey season, she was not experiencing severe bouts of lower back pain (but that there was back pain). She said that she never returned to the defendant because she trusted that he had done what he could do to help her back.
When the plaintiff turned 18 years old in 2002, she moved into a unit in Lavington which was owned by her parents. She began studying a Bachelor of Social Work at La Trobe University and was working at Kmart on a part-time basis. She stopped trying out for representative hockey teams in 2003 and said that the fewer games and associated travel meant that she did not require as much physiotherapy.
From about 2004, the plaintiff said that she began to experience aggravation of her back pain while sitting down and while working at Kmart. In cross-examination, the plaintiff said that her lower back pain at the time was “increasing and constant” (at T322), and that it was confined to her lower back (at T323). The plaintiff said that the pain was not “severe” in 2004 but that it was about a “five” on a scale from zero to ten (zero being no pain, ten being the worst pain) (at T323). She said that she experienced that level of pain constantly by 2004 and she did not think that she experienced acute periods of pain (at T323).
Mr Downing then took the plaintiff to para [20] of the Second Further Amended Statement of Claim (“2FASOC”) (which was not amended in the 3FASOC) where she alleges that in 2004 she experienced significant pain through her lumbar spine and into her thighs to the point that she would vomit. At T330, she said that she experienced that pain from 2004 onward and that it would get to eight on the scale from zero to ten. The following exchange then took place:-

“Q. How long would it last when it occurred?
A. Hours. I would feel like I was debilitated. Just I guess my – yeah, and my body’s way of reacting was to make me vomit obviously.
Q. Were you literally immobile in those times?
A. I’d be laying on the floor, like, yeah, I’d just, I, I couldn’t get relief, like, yeah, and I think that’s when my body would – that was the reaction my body would have.
Q. Would you be lying on the floor for like hours at a time when the pain was so bad?
A. No, that’s what I’d do to get, get relief.
Q. How often do you estimate that would occur in 2004?
A. Not regularly.
Q. What, a couple of times a year, five times a year, ten times a year?
A. Yeah, maybe a few times a year.
…
Q. Did you ever seek treatment when a bout of pain to that extent occurred?
A. I would probably go and see my physio. Generally I would manage myself. Generally when I feel like that, if I have a really hot shower, if I rest my body and take some medication, I could push through it, like, it would pass with some time and some rest.
…
Q. Where you would go to your physio, you’ve told us at times when you would have a bout of pain like that, you’d go to your physio. I take it you would tell them that you’d had an attack of acute pain or something like that?
A. Yes, yes, I, I had a pretty good – I guess the physio knew generally, you know, how I was feeling and, yeah, I was open with them about my, how my back was going.
Q. When you went along after one of these attacks, you would say something like, you know, “I’ve had really bad pain into my back and legs and I vomited,” or something like that, you’d describe what happened to you.
A. Yes.
…
Q. So thinking from the period 2004 right through to now, how often were you getting instances or events of this type?
A. They would most often occur in the really cold months, particularly if I was out in the cold weather or doing strenuous activity. I don’t know that I can put a number on it.
Q. Have they become less frequent over time or more frequent since 2004?
A. More frequent.
Q. More frequent, so if they were starting at about three in 2004, are they still occurring now?
A. Yes.
Q. How often would you say they’re occurring now?
A. Monthly.”

The plaintiff said that despite experiencing ongoing backpain from 2004 to 2006 inclusive, she stopped attending physiotherapy altogether because she could not afford it. When she experienced pain, she would simply rest and not go out with her friends. She was only attending hockey training twice a week and playing one game per week, so she believed that she could manage her lower back pain at home through self-exercise and stretching. However I observe that in cross-examination (at T335), she said that it had not occurred to her in 2004 that the defendant might be able to assist her because at that time she was seeing her physiotherapist. It appears from the Healthfocus Physiotherapy notes that she only attended physiotherapy once in that year, on 20 September 2004, when she complained of right frontal headache and tightness in the neck.
I also observe that in her 21 February 2024 statement, the plaintiff said that after she gave birth to her third child (in 2017) she experienced a “new radiating left leg and thigh pain and felt a change in sensation in my left lateral thigh to knee”. When questioned during examination-in-chief on day 1 of the trial about those symptoms (at T68), the following exchange occurred:-

“Q. You say that there was some form of increase in pain. How would you describe that increase? Was it an increase in duration or intensity or how would you properly describe it?
A. Definitely an increase in intensity. I was also – that was the point in time where I started to get radiating pains down my left leg and into my buttocks.”

In cross-examination (at T362-363), the plaintiff said that she began to get a radiating pain into her buttocks and thighs in 2004. Mr Downing cross-examined the plaintiff on this apparent inconsistency and she said that she thought that the pains were different, which is why she did not mention the earlier radiating pain in examination-in-chief (at T365-366). In cross examination at T398, the plaintiff said that the type of pain became a radiating pain in 2017. The plaintiff then said that in 2004 the pain was in her lower back and radiating into the buttocks and hamstrings, but she developed a numb sensation in 2017 (at T399). The plaintiff later clarified (at T402) that what she meant by “radiating” was that the pain was constant and that whenever she stepped, she experienced that pain. She said that the numbness she experienced was on the left-hand side of her left leg.

From 2006, the plaintiff was working about 30 hours per week at YES Youth Services as a case manager. In cross-examination at T439, the plaintiff said that there were times during that year that she did not attend physiotherapy, when she otherwise would have, because she was prioritising saving to purchase a residential property.
In 2007, the plaintiff was attending hockey training once a week and playing one game per week. On 12 November 2007, she commenced working as a Team Leader at YES Youth Services which required her to perform desk work and sit for lengthy periods of time. She said that her back pain was harder to manage in this role than when she was studying and working at Kmart on a part-time basis. In her 21 February 2024 statement at [139], the plaintiff said that she was able to afford physiotherapy and undertook it. In cross-examination at T444-445, she said that there were times when she went without physiotherapy because she was prioritising spending money on (or saving for) other things. The plaintiff agreed (at T452, T457) that what was written in her 21 February 2024 statement with respect to physiotherapy appointments in 2007 reflected what her solicitors told her about what was in the Healthfocus Physiotherapy records, rather than her independent recollection.
The plaintiff stated that she ceased playing hockey altogether in 2008 to preserve her lower back and manage her lower back pain. The plaintiff said that she experienced the worst flare up of back pain that she had had up to 2008 at her engagement party (at T468-469). She said that she did not recall attending upon anyone for treatment after that flare up. In cross-examination (at T471), she agreed that what she said in her 21 February 2024 statement with respect to physiotherapy and general practitioner appointments in 2008 reflected what her solicitors told her about those attendances, but that she had an independent recollection of sinus issues in that year. I observe that with respect to the plaintiff’s sinus surgery (which occurred in mid-2007) the following exchange occurred in cross-examination at T475:-

“Q. Do you recall if you missed any hockey after having the sinus surgery?
A. I believe I had it done on the school holidays.
…
Q. You’d not only finished—
A. Yes.
Q. –school, you’d finished university. So you didn’t have it during school holidays, presumably.
A. No. Well, yes. No, it wasn’t. Sorry.”

The following exchange took place in cross-examination (at T475-476) with respect to a Healthfocus Physiotherapy consultation on 21 July 2008 (one of the two physiotherapy consultations that year):-

“Q. You describe there attending Mr Robertson for a manipulation of your back for lower back pain on 21 July.
A. Yes.
…
Q. Do you recall that someone told you that what in fact the records show for that attendance, that is 21 July 2008, that you turned up and complained of neck stiffness?
A. I don’t recall.
Q. If you’d been told that the records show that you’d attended for neck stiffness you would presumably have included that in your statement.
A. Yes.
Q. Can you explain how you say you were able to describe that as an attendance for lower back pain and lower back manipulation when the records refer only to neck stiffness?
A. I, I would assume it’s an error.
…
Q. If you’d been to the physio on 21 July 2008 as the records suggest about the neck, would you agree that if you’d had a problem with your lower back at the time you would have reported it?
A. Yes.
Q. For instance, if the engagement party had been in the very recent past and you’d had a severe flareup of low back pain to the point that you’d had to go inside, lie down and vomit, you would have told the physiotherapist?
Yes.”

At [150] of her 21 February 2024 statement, the plaintiff said that she attended a consultation with Dr Allen and complained of sharp pains radiating to her back on 9 September 2008. The Albury Central Medical Clinic notes from that consultation reflect the plaintiff complaining of abdominal pain with some radiation to the back. The plaintiff accepted (at T485) that her statement was misleading.
In cross-examination the plaintiff stated that she in fact used various devices such as a whale’s fin implement, a ball and another implement which consisted of two balls attached to each other to assist with stretching, to the point where she now uses them daily and that she had used them “all the way through” (at T87).
The plaintiff has four children who were born in 2009, 2013, 2017 and 2021. She stated that each of her pregnancies caused her to experience an aggravation of her lower back pain, with the pain only returning to pre-pregnancy levels after the first and second pregnancies. After the two later pregnancies she said that her lower back pain was permanently exacerbated.
In cross-examination (at T553), I observe that with respect to the first two pregnancies, the plaintiff said that she was referred to Wodonga Specialists Obstetricians & Gynaecologists because of the history of her back condition. She agreed that she understood that telling them about her back was an important part of the relationship that she had with her obstetrician and gynaecologist.
With respect to the 2009 pregnancy, the plaintiff said that she attended Healthfocus Physiotherapy because she had a flare up of lower back pain on 15 April 2009. The notes for that attendance reflect the plaintiff attending with neck stiffness and tightness, and with left buttock and hip pain. In cross-examination (at T493), the plaintiff accepted that her statement was not “specific enough” regarding that consultation. She said that she attended Healthfocus Physiotherapy for back pain on 17 August 2009. The notes for that attendance specifically record that the plaintiff did not have a complaint of low back pain, but rather that she attended with tightness across her shoulders and shoulder blades. In cross-examination, the plaintiff said that if she were asked about lower back pain at that point in time, she would have said that her lower back pain was affecting her all the time, that it had got worse during the pregnancy and that it was travelling down the back of her legs through her buttocks into the back of her thighs (at T502-503). She said that she could not understand why she would have said that she had no complaints of lower back pain, if she had been asked about lower back pain.
The plaintiff said that she attended Healthfocus Physiotherapy on 6, 8 and 13 October 2009. In cross-examination (at T512-513), the plaintiff said that she was having problems with her neck, shoulders and lower back which was associated with breastfeeding and that these were the reasons why she was attending physiotherapy. The notes for those attendances contain no reference to lower back pain. The plaintiff said that she attended on 18 December 2009 for right shoulder ache.
At various times throughout the plaintiff’s cross-examination, she said that her lower back pain has been constant and getting worse over time since 2004, ie over the past 20 years.
In 2017, the plaintiff experienced a new pain radiating to her left leg and thigh, and she felt a change in sensation in her left lateral thigh to the knee area. I have noted above Mr Downing’s cross-examination with respect to the timing and description of those symptoms. In cross-examination (at T519-520), the plaintiff said that her low back and buttock and leg pain got significantly worse during the 2017 pregnancy and that since she gave birth in 2017 (following a brief period of relief), the pain has worsened over time.
With respect to the 2017 pregnancy and the significant exacerbation of her symptoms (over and above what she had experienced during previous pregnancies), the plaintiff said (at T536) that it occurred when she was “really weightbearing” or at about the six-month mark. Over the period of her 2017 pregnancy, there is no reference to low back pain in the Albury Central Medical Clinic attendance notes or the Wodonga Specialists Obstetricians & Gynaecologists attendance notes. The plaintiff did not attend any physiotherapy appointments while she was pregnant. There is no reference to back pain in any contemporaneous notes after the pregnancy until 30 April 2018 when she presented to Dr Allen.
On 11 January 2019, the plaintiff had an x-ray of her lumbar spine. The plaintiff’s physiotherapist, Mr Robertson, sent a letter to her general practitioner, Dr Gaini Allen, on 15 January 2019 which read, “Thanks for seeing Erin. Complaining of low back pain and hamstring pain of recent times.” On 22 January 2019, she attended a consultation with Dr Allen which the plaintiff said was in relation to her lower back pain and the change in sensation in her left lateral thigh. Dr Allen referred her for an MRI which took place on 29 January 2019. Dr Allen reviewed the plaintiff’s results and referred her to the defendant on 6 February 2019.
On 20 February 2019, the plaintiff attended a consultation with the defendant at which time he reviewed her MRI scan. He referred her for a bone scan which she underwent on 6 March 2019. The plaintiff attended a further consultation with the defendant on 13 March 2019, at which time he said to the plaintiff words to the effect of “you need to try facet joint injections to see if that relieves your pain” and referred her for facet joint injections. She received the facet joint injections on 20 March 2019.
On 11 April 2019, the plaintiff had a follow-up consultation with the defendant. He referred her for further physiotherapy and prescribed anti-inflammatory medication.
On 16 May 2019, a further x-ray was performed on the plaintiff’s lumbar spine and she attended another consultation with the defendant. At the consultation, the plaintiff said to the defendant words to the effect of:-

“I am in the most pain I have ever been in after the facet joint injections, physiotherapy with Mandy Hobbs and anti-inflammatories”.

The plaintiff stated that the defendant responded with words to the effect that:-

“The conservative treatment is not helping there is no doubt that you will need surgery within the next 5 years… the x-ray shows some movement. You have changes which shows the vertebrae like they are dying they are a different colour. The surgery we did on you at the time was quite cutting edge. We would not do that now, we would do a cage fusion”.

The defendant proposed referring the plaintiff to Dr Anil Nail for surgery, saying to her words to the effect that:-

“My colleague can complete the surgery at the Albury Wodonga Private Hospital, he comes from Sydney regularly to perform surgeries in Albury and I will oversee the surgery. … having the surgery locally would be better for you.”

With respect to her left thigh symptoms, the plaintiff indicated that the defendant said to her words to the effect that “the cyst in your left knee is interfering with your ability to walk and squat comfortably”. The defendant referred her to Dr David Kirwan, orthopaedic surgeon, to assess her symptoms.
The plaintiff stated that she had never thought that anything was wrong with the surgery that the defendant had performed in 1995 and that she had never thought that she should get legal advice until the appointment with the defendant on 16 May 2019.
On 13 June 2019, the plaintiff attended a consultation with Dr Nair at the defendant’s rooms. She said to Dr Nair words to the effect of “I have had ongoing lower back pain which radiates into my left buttock, thigh and leg” to which he responded “we could do anterior fusion surgery in Albury at the Private Hospital. We would do a bone graft and get it all cleaned up”.
On 25 June 2019, the plaintiff attended a consultation with Dr Kirwan. He examined her knee and said to her words to the effect that “the cyst in your left knee is not affecting you, you have a very normal knee with a small restriction in flexion but you do not need to do anything about it, it is not affecting your movement or your gait, you do not need any treatment or surgery”.
In 2020, the plaintiff fell pregnant with her fourth child. She conducted her business, Twinkle Toes (to which see below), until December 2020 when she was approximately 28 weeks pregnant. She gave birth on 8 March 2021.
On 28 June 2021, Dr Allen prescribed the plaintiff antidepressant medication. The plaintiff stated that at the time she felt like she could not cope as her father was ill, her husband was struggling at work and she had chronic back and leg pain. She ceased taking antidepressant medication shortly after a review with her general practitioner on 7 July 2022, about one year later.
The plaintiff stated that her current symptoms included constant, throbbing lower back pain which is worse with activity, and which radiates into both buttocks and legs (but worse on the left). She is stiff when she wakes up in the morning, when she stands still or poses in a static position for too long. This causes radiation of pain through her thoracic spine and neck, and she gets headaches. She has physiotherapy as often as she can, uses heat packs and takes hot showers, and avoids going out in cold weather as much as she can. She has tried acupuncture and massages. She stated that she spaced out her pregnancies so that she did not have to handle a newborn child and a young toddler concurrently. She avoids repetitive actions and lifting her children as much as she can. She regularly requires over the counter pain and anti-inflammatory medication.
The plaintiff said that her sleep is interrupted by pain and she wakes up every couple of hours to readjust herself, take pain medication or re-heat her heat pack. It takes a while for her to “warm up” in the morning or after she has driven long distances.
In her statement of 20 March 2024, the plaintiff said that she has also experienced problems with urinary incontinence since the surgery. She stated that when she laughs, sneezes or plays sport, she will experience urinary incontinence. She wears absorbent underwear most days so that she can go out in public without fear of wetting herself. Mr Downing cross-examined the plaintiff at length on her symptoms of urinary incontinence, frequency and urgency. She said (at T578-579) that the first occasions of urinary incontinence and urinary urgency were not until 2000 or 2001. At T581-582, the plaintiff said that the frequency of urinary incontinence and volume of urine lost have increased gradually since first onset. Mr Downing took the plaintiff to various contemporaneous medical records where there was either no note relating to urinary incontinence, or a note specifically indicating that the plaintiff did not have urinary problems (T590-594). The plaintiff said that she did not believe that she was “incontinent” at the time of these consultations, because to her incontinence meant something more severe than what she was experiencing. She merely thought that she had a weak bladder and did not think that this was significant.
In her statement of 4 June 2024, the plaintiff stated that she attends a local Thai massage therapist for massages intermittently. She continues to use over the counter pain medication (increased in winter months).

Employment and Education

The plaintiff completed year 12 in 2002.
From 2002-2006, the plaintiff worked part-time at Kmart. She completed a Bachelor of Social Work at La Trobe University during this period. In 2004 and 2005, she was employed as a disability support worker through a university placement with Skills Innovative Training Enterprise (SITE).
In 2007, the plaintiff was employed at YES as an employment-based support worker working with young people who were at risk of becoming homeless. She started in a social worker role and was promoted to a team leader role shortly thereafter. When she commenced this role, she says that it was her intention to stay in that position until retirement. The sedentary work involved in her role as team leader caused her severe lower back pain which radiated up her thoracic spine and neck, which caused headaches. Mr Downing cross-examined the plaintiff at length regarding her employment in the team leader role (at T700-T715). The plaintiff agreed that she did not raise physical problems caused by her work with anyone in the workplace. She agreed that she would have been comfortable to raise with her superiors “little issues” that she thought might assist her in completing her duties, but that if she requested variety in her role because the sedentary work was hurting her, that would have been saying that she could not do her job.
The plaintiff worked fulltime in this role until 2009 when she commenced maternity leave with her first child. She returned to work between that time and the time at which she commenced maternity leave for her second child, although it does not appear that she ever returned to fulltime work.
The plaintiff stated that due to an internal restructure, it became unsuitable for her role to be performed on a part-time basis. She said that she was unable to commit to fulltime work because she was exhausted from all the domestic duties she was doing at home and the need to pace herself with those tasks because of the lower back pain. She could no longer keep up with fulltime work. She took a redundancy in approximately October 2014.
Toward the end of 2014, the plaintiff purchased a franchise called “Twinkle Toes”. The business involved selling baby hand and feet sculptures and allowed her to work from home according to her own schedule. She sold the sculptures at local market stalls and fulfilled online orders. The plaintiff’s husband would assist her with setting up and packing down the stalls.
In 2017, the plaintiff no longer attended market stalls because she said she was in too much pain and did not want to ask her husband to continue to set up and pack down the stalls. She continued to run her business from home until COVID-19 “killed” her business in about 2020 or 2021. She says that she was unable to return to part-time employment because of her fatigue and pain.
In cross-examination, at T745, the plaintiff disagreed with the proposition that the limits on her employment were her family responsibilities rather than any physical limitations she experienced.
On 11 March 2024, the plaintiff commenced work as a Health and Wellbeing officer. She described the position as an advocate for retired nuns. She works five hours per day three days per week. She attends clients at their home or at a residential facility and assists them with administrative tasks. She can work from home to complete clerical duties or telephone calls. She stated that she experiences an increase in lower back, buttock and leg pain when carrying out her work duties.

Domestic Assistance

The plaintiff lives in a four-bedroom split level house on a sloping block. She says that she struggles to carry her children up the stairs and around the house. She has difficulty with the sloping block, particularly walking up and down the driveway.
The plaintiff’s husband is apparently responsible for mowing the lawns and yard maintenance. She evidently attempted to mow the lawns on one occasion, but experienced pain and never attempted it again.
When her husband is working, the plaintiff says that she performs all of the daily domestic duties. She says that she is exhausted by the end of the day and takes over the counter pain medication and goes to bed with a heat pack on her lower back. The plaintiff states that her mother has assisted when she could, but she had to care for the plaintiff’s father on a fulltime basis due to his medical conditions. Since June 2023, after her father’s death, she states that her mother has been able to assist her more often and undertakes childcare responsibilities for approximately five hours per day twice per week.
The plaintiff says that she modifies her method of performing the domestic tasks she is required to complete in order to minimise movement of her back. This often involves her sitting on the floor, so as to limit bending over. She has purchased particular cleaning implements to avoid certain movements and she always attempts to have items delivered directly to her home or arranges for “click and collect” purchases. The plaintiff and her husband purchased a new motor vehicle which has made it easier to put her son in his seat and allowed her to stand up inside instead of bending over when she removes items from the vehicle.

There was some discussion at trial about whether or not Professor Dan is a peer for the purposes of s 5O. Surprisingly, there is no authority on that particular question. I have given that question much thought. Professor Dan and Dr Hillier performed spinal surgery at the same time and on similar patients in the 1990s. Whilst Professor Dan was and remains a neurosurgeon, in my view for the purpose of establishing whether Dr Hillier, an orthopaedic surgeon, acted in a manner that in 1999 was widely accepted in Australia as competent professional practice, Professor Dan was capable of providing such an opinion.
Given my finding that the defendant, in performing the surgery following a period of expectant management acted in a manner which satisfies s 5O, a finding that a particular comprehensive conservative management programme ought to have been recommended instead of the surgery would be contradictory. As a result of that finding, the fourth limb of the plaintiff’s case, that the defendant failed to recommend a comprehensive conservative management programme instead of the surgery, effectively falls away. Nonetheless, if the Court was required to determine this particular issue, the defendant’s submission that neither expert for the plaintiff “suggested that such a specific program of physiotherapy was the one and only regime that needed to be prescribed for the plaintiff” has force. As noted above, the plaintiff had regular oversight and treatment from a physiotherapist with respect to her lower back and had received facet joint injections which did not assist her.
A further difficulty with this limb is that it was not clear what treatment ought to have been recommended by the defendant. In that regard, I note the particulars in the 3FASOC as follows:

“The Plaintiff pleads particulars of negligence and breach of duty of care, including:
…
k. failed to recommend conservative treatment.
l. failed to recommend conservative treatment or to conservatively treat the Plaintiff instead of the surgery via core strengthening exercises, inversion table, vertical traction, abdominal and back bracing exercises, and/or regular still water swimming, and to counsel the Plaintiff to permanently cease playing hockey, competitive hockey and/or vigorous sports.
m. failed to implement a proper structured course of non-surgical and/or conservative treatment.
n. failed to implement a through (sic) structed (sic) programme of physiotherapy, hydrotherapy, gym, and swimming supervised by a qualified and experienced physiotherapist.”

It is not possible from the evidence adduced at trial to ascertain what conservative treatment the plaintiff ultimately alleged ought to have been recommended, only that the plaintiff argued that it should have been something other than that which was in fact recommended. In light of my finding in relation to the first limb of her case, the plaintiff’s fourth limb must fail.
As to the fifth limb, failing to maximise prospects of fusion taking place following the surgery, I am at a loss to understand how the plaintiff ultimately put her case. No evidence was adduced about what the defendant ought to have done to “maximise prospects”, and neither Dr Hopcroft or Dr Drnda suggested that there something about the defendant’s bone grafting technique was deficient such that it increased the prospects of a non-union. The fifth limb must also fail.
As to the failure to warn allegations, to which s 5O allegedly does not apply, in my opinion, properly characterised they are allegations that the surgery was negligently performed (to which s 5O does apply).
Against the possibility that thai I am wrong about s 5O, in my opinion Dr Hillier was not negligent in failing to take precautions against a risk of harm as the provisions of s 5B(1) are not met, taking into account the factors in ss 5B(2) and 5C.

Causation

Statutory Framework

Section 5D(1) of the Act is a statutory restatement of the “but for” test of causation: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [18]. The determination of factual causation requires the plaintiff to prove that he would not have suffered the particular harm, but for the defendant’s negligence.
Sections 5D and 5E of the Act provide:-

5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
5E Onus of proof
In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Plaintiff’s submissions

The totality of the plaintiff’s written submissions on causation was as follows:-

“Further as set out at paragraph 25 in the context of the Plaintiff’s post-operative symptoms, in cross-examination the Defendant agreed that a failed fusion was likely to cause pain and further, hamstring injuries (which the Plaintiff did complain of post-operatively (see T.451) may relate directly to spondylotic changes (T.1085). Thus, for the reasons set out above, causation is established (per s 5D of the CLA).”

Mr Cranitch briefly elaborated on his written submissions in argument.

Defendant’s submissions

The defendant submitted that the plaintiff has not made out her legal and evidentiary burden of proving causation for five overarching reasons, as follows:-

The evidence points overwhelmingly to a finding that if the plaintiff had been advised as she claims she should have, she would not have pursued conservative management but instead would have chosen surgery;

The evidence does not demonstrate that any injury was suffered intraoperatively;

It seemed at points during the cross-examination of the defendant and his causation experts that the plaintiff maintained a secondary argument that when she has attended practitioners in respect of her cervical spine and thoracic spine symptoms over the years since March 1999, those symptoms in fact emanated from the lower back. The defendant submits that this proposition should be rejected;

While it is accepted that the 11 March 1999 surgery failed to achieve bony union, the Court will be satisfied that the plaintiff nonetheless achieved an excellent functional outcome, which was the ultimate aim of the surgery; and

The Court would accept the proposition, with which the plaintiff’s causation experts, begrudgingly and perhaps unwittingly agreed, that the return to hockey made no long-term difference to the plaintiff.

Determination

The lack of report of any symptoms in the several years following surgery demonstrates on the balance of probabilities that there was no damage to the left facet joint. Indeed, the plaintiff achieved an excellent functional outcome. Her symptoms resolved and she was able to resume hockey and lead an active life until the onset of lower back symptoms in about 2018. Adopting the views of Dr Dalton, set out in detail above, the plaintiffs current symptomology reflects the natural course of the very condition she had in 1999, i.e. a symptomatic grade 1 spondylolisthesis. The plaintiff has failed to prove on the balance of probabilities that anything the defendant did or failed to do caused her any harm.
The plaintiff’s case also fails on the question of causation.

Damages

In the event that I am wrong about liability, I turn to an assessment of damages had the plaintiff succeeded. I make the following assessment on the basis that the plaintiff had proved that the alleged negligence caused harm i.e. that she had lower back pain from soon after the surgery which has become debilitating in recent years.
The plaintiff relied on a Further Amended Statement of Particulars filed on 23 May 2024 and the plaintiff’s Schedule of Loss and Damage as amended.
It is trite law to say that if a plaintiff can prove that harm has been caused by a tortfeasor, the plaintiff is entitled to damages reflecting her reasonable, as opposed to optimal needs. In this case, there are some disputes about causation of harm and the plaintiff’s reasonable needs assuming causation is made out.
As to the plaintiff’s reasonable needs, I observe that in Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649, the High Court considered the method of assessment of damages in a motor vehicle case involving a plaintiff who was rendered quadriplegic. In that case Barwick CJ said, at 661, that “the question is not what are the ideal requirements, but what are the reasonable requirements of the plaintiff”, and at 662 that “the sum to be awarded in compensation is not calculable by any mathematical process. At best it is and must remain a matter of judgment”. In arriving at judgment on those issues, a court “must hearken to all of the evidence including the opinions of medical practitioners but, having done so, to come to its own conclusion on the question, not being bound to any opinion, however expert or apparently expert any witness expressing it may be”: see Moran v Nominal Defendant [2008] NSWSC 804, where the principles were briefly collected by Hislop J at [38].

Non-economic loss

The principles with respect to the awarding of non-economic loss damages are well known.
What then is the extent of Ms Briggs’s non-economic loss? An award of non-economic loss is an evaluative judgment: see Clifton & Ors v Lewis [2012] NSWCA 229 per Beazley JA at 33. Section 16 of the Act speaks of the court determining "a most extreme case". The interpretation of those words in the decisions of Dell v Dalton (1991) 23 NSWLR 528 and Southgate v Waterford (1990) 21 NSWLR 427 (“Southgate”) (considering the like provision of s 79 of the Motor Accidents Act 1988) is therefore relevant.
In Southgate, the Court of Appeal held that the amount to be recovered as damages for non-economic loss is not to be calculated in accordance with common law principles up to the statutory maximum. The Court suggested the following three-stage process by which it would be appropriate for a trial judge to approach the question of apportionment of non-economic loss:

consider and make findings on the elements in the evidence which are relevant to non-economic loss, being those relevant to an award of general damages;

conceive a (not the) most extreme case (which the court noted would certainly include quadriplegia); and

award damages between nil and the statutory maximum in the ratio which the judge determines, keeping in mind that the maximum is retained for "a most extreme case”.

In Coleman v Barrett [2004] NSWCA 27, Gzell J said at 63:

“Non-economic loss is defined in the Civil Liability Act 2002, s 3 as pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. Section 16(3) is like the Motor Accidents Act 1988, s 79A. It requires a judge, if the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, to determine the severity of the non-economic loss as a proportion of the non-economic loss of a most extreme case. It has been said that the task under such legislation involves reaching a point where further reasoning is impossible and it is necessary to make a determination which is insusceptible to entirely logical exposition (Southgate v Waterford (1990) 21 NSWLR 427 at 442) and that the assessment of general damages is an evaluative process in respect of which minds may reasonably differ (Woolworths Ltd v Lawlor [2004] NSWCA 209 at [14]). Nonetheless, the statute requires a comparison to be made of the non-economic loss suffered by a plaintiff against the non-economic loss in a most extreme case. The statute does not require the comparison to be made against the most extreme case imaginable. In Kurrie v Azouri (1998) 28 MVR 406 at 413, Sheppard AJA said: "The expression `a most extreme case' requires some discussion. It enables one to provide oneself with a yardstick as to what the legislature had in mind. A court considering the question will need to contemplate what in practical terms is embraced by `a most extreme case'. Immediately one considers such a case, one thinks of cases of quadriplegia, perhaps some serious cases of paraplegia, cases of serious brain damage and, perhaps, some cases of extremely serious scarring and disfigurement caused, especially to young children, by scalding or burning. No doubt there are others."

See also Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [5] and generally Hall v State of New South Wales [2014] NSWCA 154 per Leeming JA.
The plaintiff is currently 41 years of age. She has a life expectancy of approximately 87 years of age. She has approximately 46.5 years ahead of her (multiplier 958 on the 5% tables). Whilst the plaintiff’s age is relevant to the assessment of non-economic loss, it is only one of many factors: Reece v Reece (1994) 19 MVR 103; Varga v Galea [2011] NSWCA 76 at [73].
The parties, by agreement, tendered a joint statement of agreed position with respect to the opinions of the psychiatrists retained by the plaintiff and the defendant. The agreed diagnosis is set out at [1]-[4] of that statement:

“1. The plaintiff’s current recognised psychiatric illness (current psychiatric condition) is an adjustment disorder, either with anxious and depressed mood or with depressed mood.
2. The plaintiff’s current psychiatric condition fluctuates and is worse during the colder months.
3. The plaintiff often experiences tiredness by the end of a day.
4. The aetiology of the plaintiff’s current psychiatric condition is multi-factorial, with the impact of her lower back pain and associated symptoms being one contributing factor.”

With respect to the plaintiff’s urological condition, it was submitted that Dr Costello’s opinion, that it could not be ruled out that the surgery had caused a neuropraxia which impacted upon the plaintiff’s bladder function, ought to be accepted. The defendant submitted that the plaintiff’s claim with respect to urinary incontinence should be wholly rejected on the basis that there were no contemporaneous reports and that any incontinence experienced is unrelated to the surgery. I cannot accept that there is any nexus between the surgery and the plaintiff’s bladder function. No contemporaneous records support such a finding.
The plaintiff claims non-economic loss at 60% of a most extreme case, or $457,000. The defendant submitted that the appropriate allowance for non-economic loss is $175,000.00, based on the plaintiff being assessed at 30% of a most extreme case. The defendant emphasised that the plaintiff had a good functional outcome and the objective, contemporaneous evidence suggests the plaintiff has generally managed well.
I allow 33% of a most extreme case or $251,500.

Past out-of-pocket expenses

The plaintiff submitted that she should be awarded $21,234.50 in past out of pocket expenses in accordance with her schedule of out of pocket expenses which was provided to the court. Two expenses were not claimed on that schedule, being two physiotherapist appointments on 11 and 13 September 2002 which were related to the plaintiff’s hand. The figure listed above is exclusive of those expenses.
The defendant accepted that the total treatment expenses incurred amount to $3,646.80. Like anything else, when out-of-pocket expenses cannot be agreed they must be proved on the balance of probabilities. The plaintiff has failed to prove on the balance of probabilities that the sum she claimed was caused by the infirmities she alleges are related to the defendant’s negligence. I allow only the sum agreed, $3,646.80.

Future out-of-pocket expenses

The plaintiff claims future expenses as set out in her Schedule of Loss and Damage as follows:-

Occupational therapy:-

8 hours of assessment at $180.00 per hour;

4 hours of education and instruction at $180.00 per hour;

Pilates:-

2 classes per week at $59.00 per class;

Reformer machine for $6,526.00 replaceable every five years;

Servicing costs at $200 per year;

Hydrotherapy:-

1 session per week at $83.30 per session;

Hydrotherapy aids at $335.09 per year;

Physiotherapy:-

Weekly for 1 year at $166.30 per session;

Monthly sessions thereafter;

General practitioner:-

6 visits per year at $100.00 per visit.

In their joint statement in respect to psychiatrists, the parties agreed reasonable future treatment for the plaintiff consists of:-

One consultation with her general practitioner for referral to a clinical psychologist ($75.00);

10 sessions with a clinical psychologist ($2,800.00 total);

Trial of anti-depressants ($10 to $20 per month for as long as the plaintiff takes anti-depressants); and

Consultations with her general practitioner for anti-depressant management and further scripts as applicable ($75.00 per session).

The plaintiff in submissions further particularised her position with respect to psychiatric expenses, claiming that she is entitled to a trial of anti-depressants for a period of not less than 24 months ($480.00 total) with quarterly management by a general practitioner ($600.00 total). Thus, her total claim for future psychiatric treatment is $3,955.
With respect to future treatment, the defendant contended that $14,000.00 is an appropriate allocation on the basis that there was agreement between the experts that the plaintiff would benefit from psychological treatment and a targeted core stability exercise program, which may also involve a multidisciplinary component, including education, physiotherapy and Pilates.
Future equipment costs were agreed at an upper limit of $7,973.88. I note that there was no cross-examination of the rehabilitation specialists or occupational therapists.
I allow $25,000 as a global sum for future out-of-pocket expenses including psychiatric review, equipment, physiotherapy and occupational therapy.

Economic loss

The plaintiff did not press a claim for past economic loss.
As to future economic loss, the plaintiff submitted that it was common ground that she was not fit for fulltime work. She submitted that she “suffers from chronic pain of an intractable nature which makes it difficult for her in day to day activities and limits her ability to have gainful employment over a normal working life.” Her claim was originally said to be “in the order of $350,000”, later specified to be $462,529.04 in a schedule of economic loss.
The plaintiff’s calculation was based on one period of part-time work for 13 years throughout the duration of her youngest child’s schooling (from 42 years to 55 years old) and another period of full-time work for 12 years once her youngest child finishes his schooling until retirement at age 67. The plaintiff calculated her loss based on average full-time gross weekly earnings of a social worker being $1,829.00 and provided a net figure claimed of $970.00 per week. I note the correct net weekly figure, based on the current 2025 tax brackets, is in fact $1,420.26 (see the current 2024 edition of Assessment Handbook of Furzer Crestani Forensic Chartered Accountants). Junior counsel for the plaintiff provided a copy of an assessment of the Australian Taxation Office “Tax withheld for individuals calculator” but this did not explain how the figure of $970.00 was arrived at. I assume a net weekly figure of approximately $1420. Superannuation was claimed at 14.64%.

The defendant submitted that the plaintiff may suffer some periods of reduced capacity to work in the future which would warrant a buffer of up to $150,000.
In my opinion, this is an appropriate case for a buffer. On the assumption that it is probable that the plaintiff will be unable to work for periods amounting to 2 years, I allow approximately 2 years of a social worker’s salary ($150,000) plus superannuation ($21,000) or $171,000.

Past and future assistance

Past gratuitous care was agreed at $162,893.42. Future domestic assistance was agreed at $195,000.
Had the plaintiff been successful, I would have assessed the plaintiff’s damages as follows:

Non- economic loss: $ 251,500.00

Past out-of-pocket expenses: $ 3,646.80

Future out-of-pocket expenses: $ 25,000.00

Past gratuitous care: $ 162,893.42

Future economic loss $ 171,000.00

Future care: $ 195,000.00

TOTAL: $ 809,040.22

Disposition

I make the following orders:

Verdict and judgment for the defendant;

The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order; and

Liberty to apply on seven (7) days notice if further or other orders are required, including as to costs.

The exhibits and subpoenaed material are to be returned forthwith. Any exhibits returned must be retained intact by the party or person who produced that material until the expiry of the time to file an appeal or until any appeal has been determined.

**********

Decision last updated: 08 September 2025

Medium Neutral Citation:	Briggs v Hillier [2025] NSWSC 1021
Hearing dates:	24 June-19 July, 5-6 November, 16-17 December 2024
Date of orders:	8 September 2025
Decision date:	08 September 2025
Jurisdiction:	Common Law
Before:	Weinstein J
Decision:	(1) Verdict and judgment for the defendant; (2) The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order; (3) Liberty to apply on seven (7) days notice if further or other orders are required, including as to costs; and (4) The exhibits and subpoenaed material are to be returned forthwith. Any exhibits returned must be retained intact by the party or person who produced that material until the expiry of the time to file an appeal or until any appeal has been determined.
Catchwords:	NEGLIGENCE — Breach — Standard of care — Medical negligence — Whether spinal surgery ought to have been performed — Whether spinal surgery performed negligently NEGLIGENCE — Causation — Medical negligence — Whether lower back pain caused by spinal surgery LIMITATION OF ACTION — Claim in negligence — Where time expired — Whether extension of time should be granted — Where defendant suffered both actual and presumptive prejudice
Legislation Cited:	Civil Liability Act 2002 (NSW), Pt 1A, Pt 2, ss 5B, 5C, 5D, 5E, 5I, 5O, 5P, 16 Evidence Act 1995 (NSW), ss 79, 140, Dictionary Limitation Act 1969 (NSW) ss 18A, 50A, 52, 60G, 60I
Cases Cited:	Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649 Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 Brisbane South Regional Authority v Taylor (1996) CLR 541; [1996] HCA 25 Clifton & Ors v Lewis [2012] NSWCA 229 Coleman v Barrett [2004] NSWCA 27 Dean v Pope [2022] NSWCA 260 Dell v Dalton (1991) 23 NSWLR 528 Doughty v Hillier [2024] NSWSC 1220 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hall v State of New South Wales [2014] NSWCA 154 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 McLean v Sydney Water Corporation [2001] NSWCA 122 Moran v Nominal Defendant [2008] NSWSC 804 Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 Polsen v Harrison (No. 8) [2023] NSWSC 764 Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 Reece v Reece (1994) 19 MVR 103 South Western Sydney Area Health Services v Gabriel & Anor [2001] NSWCA 477 South Western Sydney Local Health District v Gould (2019) 97 NSWLR 513; [2018] NSWCA 69 Southgate v Waterford (1990) 21 NSWLR 427 Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 Strong v Woolworths Ltd (2012) 246 CLR 182;[2012] HCA 5 Varga v Galea [2011] NSWCA 76
Texts Cited:	Furzer Crestani Forensic Chartered Accountants, Assessment Handbook 2024
Category:	Principal judgment
Parties:	Erin Nicole Briggs (Plaintiff) Terence Hillier (Defendant)
Representation:	Counsel: M Cranitch SC / J Hillier (Plaintiff) J Downing SC / M Hamdan / D Wilcox (Defendant) Solicitors: Commins Hendriks (Plaintiff) HWL Ebsworth Lawyers (Defendant)
File Number(s):	2020/00356341
Publication restriction:	Nil