Chester v WA Country Health Service

[2022] WASCA 57

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   CHESTER -v- WA COUNTRY HEALTH SERVICE [2022] WASCA 57

CORAM:   QUINLAN CJ

MAZZA JA

BEECH JA

HEARD:   9 SEPTEMBER 2021

DELIVERED          :   2 JUNE 2022

FILE NO/S:   CACV 148 of 2019

BETWEEN:   JESHUA JOHN CHESTER

Appellant

AND

WA COUNTRY HEALTH SERVICE

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GOETZE DCJ

Citation: CHESTER v WA COUNTRY HEALTH SERVICE [2019] WADC 152

File Number            :   BUN CIV 19 of 2012

Catchwords:

Tort – Negligence – Medical negligence – Allegation of failure of hospital to refer patient for specialist review – Whether failure to refer patient for specialist review caused residual injuries – Whether adequate reasons for findings of fact

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5C, s 5PB

Result:

Appeal allowed
Order for retrial

Category:    B

Representation:

Counsel:

Appellant	:	T H Offer
Respondent	:	G R Hancy

Solicitors:

Appellant	:	Ian Watson Lawyer
Respondent	:	Panetta McGrath Lawyers

Cases referred to in decision:

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Brown v Churchill [2006] WASCA 17; (2006) 31 WAR 246

Chester v WA Country Health Service [2019] WADC 152

Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222

Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208

Coley v Danae [2020] WASCA 13

East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147

G v O [2018] WASCA 211; (2018) 53 WAR 393

Mt Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273

Pollard v RRR Corporation Pty Limited [2009] NSWCA 110

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Table of Contents

Introduction and overview

Factual background

Treatment at the Hospital

The distinction between dislocation and subluxation

Treatment after 1 August 2009

Expert evidence

Barrie Slinger

Alan Skirving

Michael Alexeeff

Primary reasons in relation to causation

Grounds of appeal and the issues for determination

Whether the judge found, and if so gave adequate reasons for finding, that Mr Chester failed to prove that if he had undergone early reduction surgery, he would have had a better result

Whether the judge found, and if so gave adequate reasons for finding, that Mr Chester failed to prove that he would have undergone early reduction surgery

Whether the only conclusion open on the evidence available at trial was the conclusion reached by the learned trial judge

Conclusion

JUDGMENT OF THE COURT:

Introduction and overview

1. On 31 July 2009, the appellant, Jeshua Chester, injured his shoulder while 'roughhousing' with a few friends following a night of drinking. He was taken to the emergency department of Busselton Regional Hospital (the Hospital). The WA Country Health Service, the respondent, is the legal entity responsible for the medical care provided by the Hospital.

2. Mr Chester sued the Hospital in negligence, alleging a variety of failures on the part of the Hospital. Those failures included that the Hospital was negligent in failing to treat Mr Chester as having suffered a dislocation of the acromioclavicular joint (as opposed to a subluxation of the joint) and a failure to make or recommend an urgent review by an orthopaedic surgeon. Mr Chester claimed that, had the Hospital not been negligent in its initial treatment, he would have undergone early reduction surgery and would have had a better outcome. Mr Chester pleaded that, by reason of the Hospital's negligence, he was left with a number of residual disabilities.

3. The Hospital denied Mr Chester's claim. In its defence, the Hospital denied that it was negligent and, in any event, denied that any injury, loss or damage suffered by Mr Chester was caused or contributed to by any negligence on the part of the Hospital. The existence of a duty of care was not an issue; as a public hospital, there was no doubt that the Hospital owed Mr Chester a duty to take reasonable care in the provision of treatment.

4. Mr Chester's claim was tried by Goetze DCJ in late 2019. His Honour dismissed the action.[1]

   [1] Chester v WA Country Health Service [2019] WADC 152 (Primary reasons).

5. In dismissing Mr Chester's claim, the learned trial judge adopted a somewhat unorthodox approach to the determination of the issues in the case. Ordinarily in an action in negligence, leaving aside any issue as to the existence of a duty of care, it is necessary for the trial judge to first determine whether the defendant was negligent and, if so, in what respect. Findings as to negligence are critical because it is the negligence (or fault)[2] of the defendant that must have caused the relevant harm for the action to succeed.

   [2] See Civil Liability Act 2002 (WA), s 5C.

6. The question of causation is not an abstract one. The law's concern, in relation to causation, is with the attribution, in a particular case, of a causal connection between an identified negligent act or omission (or other wrong) and a given occurrence.[3] One must therefore identify the negligent act or omission in order to properly address the question of causation.

   [3] East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147 (Ellis) [255] (Quinlan CJ, Mitchell & Beech JJA).

7. The learned trial judge did not do this in the present case. While his Honour referred to 'failures by the hospital medicos',[4] and elsewhere stated that 'it can be found' that the Hospital should have taken certain steps,[5] his Honour did not make any explicit findings of negligence. In this context, a finding that the Hospital 'failed' to take a particular precaution cannot necessarily be equated with negligence. Whether a particular 'failure' or 'omission' on the part of one of the doctors at the Hospital to take a particular precaution amounted to negligence required an assessment as to whether, depending upon the relevant standard, a reasonable person in the doctor's position would have taken that precaution[6] or whether the omission was in accordance with a practice that, at the time of the omission, was widely accepted by the doctor's peers as competent professional practice.[7]

   [4] Primary reasons [30].

   [5] Primary reasons [55].

   [6] Civil Liability Act 2002 (WA), s 5B(1)(c) and (2).

   [7] Civil Liability Act 2002 (WA), s 5PB. As to the applicable standard of care see Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208  (Mabior) [313] - [337] (Quinlan CJ, Murphy & Pritchard JJA).

8. As we have said, the learned trial judge did not make findings in relation to these issues. Rather, his Honour proceeded directly to the question of causation. The 'issue' of causation was posed in a number of different ways,[8] although ultimately his Honour appears to have focused on two factual questions:

   (a)whether, if he had been referred to an orthopaedic surgeon following his attendance at the Hospital, Mr Chester would have undergone early reduction surgery; and

   (b)whether, if Mr Chester had undergone early reduction surgery, he would have had a better result.

   [8] See e.g. Primary reasons [30], [33], [119].

9. In this court it was accepted by the parties that, for Mr Chester to succeed at trial, it was necessary for the learned trial judge to be satisfied that both questions should be answered in the affirmative: namely, that, if he had been referred to an orthopaedic surgeon, Mr Chester would have undergone early reduction surgery and that, following such surgery, he would have been in a better position.[9] We agree that, as the case was developed at trial, these were the two critical questions necessary to establishing that the Hospital's fault was a necessary condition of Mr Chester's residual harm, for the purposes of s 5C(1)(a) of the Civil Liability Act 2002 (WA).

   [9] Appeal ts 4, 46 ‑ 47.

10. While consideration of these two factual questions is reflected in the Primary reasons, the learned trial judge did not make clear findings in relation to them.

11. In relation to the second question, his Honour concluded that the evidence of the expert orthopaedic surgeons called by Mr Chester 'is not persuasive of a finding that it is more probable than not that Mr Chester's ongoing left shoulder pain has been caused by a failure to proceed with early reduction surgery.'[10]

    [10] Primary reasons [90].

12. More generally, his Honour expressed the following compendious conclusion:[11]

    However, even accepting that the hospital should have referred Mr Chester direct to a Bunbury hospital or elsewhere for further orthopaedic investigation and review by an orthopaedic surgeon … the matters set out at [91] ‑ [118] above, both individually and collectively, preclude a finding in Mr Chester's favour.

    [11] Primary reasons [126].

13. The 'matters set out at [91] - [118]' referred to by his Honour were not, for the most part, factual findings. They consisted, rather, of the identification of possibilities and uncertainties associated with various factual matters relevant to the two questions we have identified at [8(a) and 8(b)] above. We will return to those matters in more detail later.

14. Mr Chester appeals from the dismissal of his action.

15. The grounds of appeal were poorly drafted and did not identify with clarity the errors of law or fact said to have been made by the learned trial judge. Counsel who appeared at the hearing of the appeal, Mr Offer, brought considerably more focus to the appeal and, in essence, contended that the learned trial judge failed to provide adequate reasons explaining the process by which he concluded that Mr Chester had failed to establish a causal connection between his ongoing injuries and the failure to refer him for orthopaedic review.[12]

    [12] Appeal ts 8.

16. Notwithstanding their inadequacy generally, in our view, the grounds of appeal were of sufficient breadth to encompass Mr Chester's complaint in this regard and the complaint was tolerably clear from the grounds as a whole. The grounds expressly referred to Mt Lawley Pty Ltd v Western Australian Planning Commission,[13] a leading decision in this State in relation to the adequacy of reasons and ground 4, in particular, complained that the learned trial judge 'failed to consider all the issues before him and to give a path of reasoning so as to enable a full and proper adjudication of the issues'. Despite some murmuring as to the specificity of the grounds of appeal, the Hospital did not submit that it was unable to respond to Mr Chester's case on appeal as it was clarified at the hearing of the appeal.[14]

    [13] Mt Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 (Mt Lawley v WAPC).

    [14] Appeal ts 53.

17. Mr Chester also frankly accepted, at the hearing of the appeal that, if the appeal were to be allowed, the appropriate order would be for a retrial. Leaving aside the absence of findings as to breach (referred to above), Mr Chester accepted that it would not be open to this court, not having seen or heard the witnesses (particularly Mr Chester himself) to make a positive finding of causation based solely on the record.[15]

    [15] Appeal ts 8, 10, 20.

18. For the reasons that follow, we have reluctantly come to the conclusion that there must be an order for a retrial, deplorable as that result always is.[16] In our view, this is one of those, thankfully rare, cases in which the learned trial judge's reasons do not expose his reasoning in sufficient detail to enable Mr Chester to know why he lost. That failure, which is apt to promote a legitimate sense of grievance, amounted to appellable error.[17]

    [16] Brown v Churchill [2006] WASCA 17; (2006) 31 WAR 246 [39] (Pullin JA); G v O [2018] WASCA 211; (2018) 53 WAR 393 [98] (Mitchell, Beech & Pritchard JJA); Coley v Danae [2020] WASCA 13 [14] (Quinlan CJ, Murphy & Mazza JJA).

    [17] Beale v Government Insurance Office of NSW(1997) 48 NSWLR 430 (Beale v GIO (NSW)), 442 (Meagher JA); Mt Lawley v WAPC [26] (Steytler, Templeman & Simmonds JJ); Pollard v RRR Corporation Pty Limited[2009] NSWCA 110 [57] McColl JA (Ipp JA & Bryson AJA agreeing).

19. Appellable error from inadequate reasons, of course, does not necessarily result in a new trial. An appeal court is entitled to consider the matter, and if it can do so (where, for example, the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge), it may itself decide the matter.[18] This, however, is not such a case. There were contestable issues on the merits, which the learned trial judge did not adequately address and which this court cannot determine merely from the record.

    [18] Mt Lawley v WAPC [29] (Steytler, Templeman & Simmonds JJ); Beale v GIO (NSW), 444 (Meagher JA).

20. Before turning to the learned trial judge's reasons, it is necessary to set out the relevant factual background and some of the evidence at trial.

Factual background

Treatment at the Hospital

1. Following his arrival at the Hospital on 31 July 2009, Mr Chester was seen by a doctor at approximately 11.50 pm. Following an examination, the doctor gave Mr Chester analgesia (Panadol and Nurofen), an icepack and placed his arm in a broad arm sling. Mr Chester was discharged and asked to return the following day for an X-ray.[19]

   [19] Primary reasons [12].

2. The following day, 1 August 2009, Mr Chester underwent the X‑ray and returned to the Hospital. The X-ray reported stated that 'Dislocation of the left AC joint has occurred'. The reference to the AC joint is a reference to the acromioclavicular joint, a joint in the shoulder. The doctor who saw Mr Chester at the Hospital following the X-ray wrote in the Hospital notes that Mr Chester had an 'A/C joint dislocation'.[20]

   [20] Primary reasons [13] - [14].

3. The same doctor prepared the Discharge Summary for Mr Chester. The Discharge Summary, which was given to Mr Chester, stated that the diagnosis was 'AC joint subluxed L shoulder'. Mr Chester was again given analgesia (Panadol and Nurofen) and advised to consult his general practitioner in two weeks. Mr Chester gave evidence that he was told to keep his arm in the sling for four to six weeks, during which time his injury would improve steadily and he would be back at work in six weeks.[21]

The distinction between dislocation and subluxation

[21] Primary reasons [14] - [15].

1. At this point, it is necessary to say something of the difference between dislocation and subluxation of the acromioclavicular joint. The following description is taken from the Primary reasons and was not controversial.[22]

   [22] Primary reasons [37] - [40].

2. Injuries to the acromioclavicular joint may give rise to six different grades of injury. Grade 1 and 2 injuries involve a stretching or partial rupture of the acromioclavicular ligaments, being a partial dislocation of the AC joint, so that the bones are misaligned, but still in contact. A grade 3 injury involves a complete rupture of the acromioclavicular and coracoclavicular ligaments, which also occurs in a grade 5 injury. The displacement of the clavicle to just under the skin is greater in a grade 5 injury than in a grade 3 injury. Grade 4 and 6 dislocations are rare and involve horizontal displacement of the clavicle in either a posterior or an anterior direction.

3. Grade 1 and 2 injuries are properly referred to as a subluxation. Grade 3 and 5 injuries are properly described as a dislocation, where the displacement is vertical and upwards.

4. On the basis of the evidence at trial, the learned trial judge found that Mr Chester suffered a grade 3 dislocation.[23] The significance of that finding was the subject of expert evidence at trial, to which we will return.

Treatment after 1 August 2009

[23] Primary reasons [42].

1. On 12 August 2009, Mr Chester attended the surgery of his general practitioner, Dr Anthony Taylor, taking with him the Discharge Summary. In Dr Taylor's absence Mr Chester consulted Dr Rene Lim. Dr Lim's typed records indicate the diagnosis as 'left AC jt subluxation … x-rays confirm this'. Mr Chester's pain was improving, but still present. Mr Chester said his shoulder mobility was still reduced. Dr Lim measured Mr Chester's range of arm movement. He continued to be managed conservatively with a sling and was advised to return in another two weeks. Dr Lim took no further role in Mr Chester's management.[24]

   [24] Primary reasons [17].

2. On 2 September 2009, Mr Chester consulted Dr Taylor, still complaining of trouble moving his painful left shoulder. Recovery was slower than expected. Dr Taylor recorded the reason for this visit as 'AC joint subluxation'. Dr Taylor prescribed medication. There is no record in the notes that Mr Chester was required to utilise a sling at this time. Mr Chester's evidence was that he was told by Dr Taylor to continue using the sling and that he did so for another four to six weeks.[25]

   [25] Primary reasons [18].

3. Dr Taylor's evidence was that when first consulted by Mr Chester, he had the Discharge Summary, indicating a subluxation and the diagnostic report indicating a dislocation of the left AC joint. He wrote 'subluxation' in his notes. His evidence was that he based his decision as to treatment on what had been reported to him and Mr Chester's clinical presentation.[26]

   [26] Primary reasons [20].

4. Mr Chester again consulted Dr Taylor on 25 September 2009. He was then experiencing pain whenever he took any weight through his left AC joint. Dr Taylor referred Mr Chester to Ms Kay Pratsis, an orthopaedic surgeon based in Bunbury, for orthopaedic review. Ms Pratsis was unavailable, and Mr Chester was referred to another orthopaedic surgeon, Mr Neil Openshaw. An appointment was scheduled for February 2010.[27]

   [27] Primary reasons [22] ‑ [23].

5. Following a number of other attendances on Dr Taylor in which he made complaints in relation to his shoulder, Mr Chester's review with Mr Openshaw was brought forward to 7 December 2009.[28]

   [28] Primary reasons [24].

6. Upon review, Mr Openshaw placed Mr Chester on a public waiting list as a semi‑urgent case for left shoulder surgery, being a reconstruction of his acromioclavicular ligaments, probably in combination with excision of the distal clavicle. Mr Chester's evidence was that there was a 13‑month delay before he could proceed to this surgery as a public patient. He said that he borrowed funds so that he could undertake Mr Openshaw's proposed surgery as a private patient.[29]

   [29] Primary reasons [25] ‑ [26].

7. On 24 February 2010, Mr Openshaw performed reconstruction surgery on Mr Chester, as a private patient. This surgery produced a good anatomical result as revealed by later X-rays, but Mr Chester continued to suffer pain in the left shoulder and restrictions in terms of his daily activities.[30]

   [30] Primary reasons [27].

8. As we have noted above, while not expressed as a finding of negligence, the learned trial judge found that the Discharge Summary wrongly recorded a radiological finding of an AC joint subluxation instead of dislocation and that the second medical practitioner at the Hospital omitted to write in the Discharge Summary or advise Mr Chester that he needed to seek immediate orthopaedic review as to his choice between conservative or surgical treatment for his acromioclavicular joint dislocation.[31]

   [31] Primary reasons [28] ‑ [29].

9. His Honour later concluded:[32]

   It can be found, on the agreed expert evidence, that the hospital should have referred Mr Chester for orthopaedic review or recommended he seek orthopaedic advice upon his choice of proceeding to surgery or conservative treatment.

   [32] Primary reasons [55].

10. While not expressed as a finding of negligence, this conclusion is as close as the Primary reasons come to such a finding.

11. It was upon this basis, that the focus of the question of causation was on what would have happened had the Hospital referred Mr Chester for orthopaedic review.[33] The answer to that question was, at least in part, dependent upon expert evidence given by orthopaedic surgeons.

    [33] Primary reasons [119].

Expert evidence

1. The parties adduced expert evidence at trial from three orthopaedic surgeons. Mr Chester called evidence from Mr Barrie Slinger and Professor Alan Skirving. The Hospital called evidence from Mr Michael Alexeeff.

2. Their evidence may be briefly summarised.

Barrie Slinger

1. Mr Slinger is an orthopaedic surgeon. At the time of trial his practice was confined to medico‑legal assessment, prior to which he had over 30 years of clinical experience as an orthopaedic surgeon.

2. Mr Slinger produced six separate reports that were tendered in evidence, dated 21 June 2011,[34] 1 October 2013,[35] 18 November 2013,[36] 12 May 2014,[37] 24 November 2015[38] and 14 November 2017[39] respectively.

   [34] Exhibit 20.1 (GAB 69 ‑ 73).

   [35] Exhibit 20.2 (GAB 74 ‑ 81).

   [36] Exhibit 20.3 (GAB 82 ‑ 83).

   [37] Exhibit 20.4 (GAB 84).

   [38] Exhibit 20.5 (GAB 85 ‑ 87).

   [39] Exhibit 20.6 (GAB 88 ‑ 92).

3. Mr Slinger examined Mr Chester on 20 June 2011, 28 August 2013 and 13 November 2017.

4. Not all of Mr Slinger's reports were relevant to the potential treatments of Mr Chester's shoulder dislocation, or the likely outcome of those treatments. The reports also deal with Mr Chester's working capacity and the effect, for example, of a car accident in November 2011.

5. Relevantly, in his first report Mr Slinger said: [40]

   Dependent upon the severity of the dislocation will determine the need to treatment, commonly, conservative treatment, without surgery, is successful in restoring function. In Mr Chester's instance, however, this was a grade IV dislocation, and surgery would normally be recommended within the first few weeks, to allow reduction of the dislocation and maintaining the position with internal fixation.

   The common progress and result of an acromioclavicular dislocation is usually one of progressive improvement, with or without deformity, however, that progress and improvement is dependent upon the severity of the dislocation, and when the joint is completely dislocated, as it was in this instance, with significant separation of the bone end, then surgery is required to maximise a positive result.

   …

   In the event that the severity of the dislocation had been recognised at or soon after injury, then the surgery which I believe would have been required would have probably been of a lesser procedure, and more likely to have been associated with a more favourable outcome and a better functional result.

   [40] Exhibit 20.1 (GAB 72 ‑ 73).

6. In his evidence at trial Mr Slinger clarified that, on reflection, he classified the dislocation as a grade 3, as grade 4 is usually diagnosed at surgery. He nevertheless generally maintained his opinion, as we will come to in a moment.

7. Mr Slinger's later reports were to similar effect. In his report of 24 November 2015, he said:[41]

   I would agree that surgery for acute acromioclavicular dislocation does require reduction, repair of ligaments, internal fixation with screw or similar, and then reinforcement with some form of reconstruction, using auto graft or tendon supplementation, or other means of fixation with allograft and synthetic material.

   The failure rate with acute stabilisation, I believe, relates to the technique and type of surgery performed and with present day methods, I believe, the results from early surgery are satisfactory. Indeed, the results in the delay in surgery is mirrored by Mr Chester, who has I believe, as Mr Alexeeff suggests, a suboptimal clinical outcome.

   [41] Exhibit 20.5 (GAB 87).

8. In his evidence at trial, Mr Slinger said that he wouldn't be quite so dogmatic about recommending surgery as opposed to conservative treatment. In that regard, he said:[42]

   In my opinion, and you must – I'm sure you understand there are different opinions as – to attest to this, because I've always said that the – there is – there is an opinion that the – the results of surgery and non‑surgery are comparable. But in my opinion, in my practice, it would be that if a patient was a heavy labourer, a builder's labourer or similar, or was involved in any heavy sporting activities, of a relatively young age, I would be inclined to offer him an – an operation, that he'd have a better chance of returning to those activities than if it was left to a non-operative approach.

   [42] Trial ts 204.

9. Mr Slinger was asked about his opinion that, if treated earlier, the surgery 'would have probably been of a lesser procedure'. Mr Slinger gave the following evidence:[43]

   But in terms of what each of those procedures is trying to achieve in terms of the location of the joint, and the fixation of the joint, do they have any significant differences in terms of design?---Well, the – the aim is – so the same, the design is different, the aim is the same, to restore normal anatomy, and reduce the dislocation.

   Of course, what he had, eventually, in February of 2010 was somewhat different to that, wasn't it?---That's correct.

   Being an excision of part of the clavicle and - - -?---Yes.

   - - - a reconstruction?---Yes.

   You've gone on to say that the lesser procedure that you had in mind, whatever the means by which it is achieved, would have been more likely to have been associated with more favourable outcome and a better functional result?---Than would a late procedure.

   [43] Trial ts 205.

10. Mr Slinger later gave evidence that as a result of the excision of the end of the clavicle, Mr Chester doesn't have a normal AC joint which was because[44]

    it was most unlikely Mr Openshaw could have reduced the joint because it had been out of place and dislocated for so long, that to get it in some form of alignment, he'd have to excise a bit of the bone to bring it down.

    I see?---But if it had been done early, then that would have been more easily reduced without the need for the – the excision.

    [44] Trial ts 228.

11. In relation to the timing of surgery upon orthopaedic review, Mr Slinger said:[45]

    [A]llowing the swelling to – to go down would then, your Honour, allow the decision be made as to surgery at two weeks and where would the optimal time to operate, if you were going to operate.

    The decision was made to operate at that time, how long typically would it take to organise and carry out such and [sic] operation?---Same day, next day.

    [45] Trial ts 208.

12. In relation to the decision to operate, Mr Slinger was asked:[46]

    You've also mentioned that one of [sic] the factors that you take into account is the level of activity of that person in their recreational or occupational life?---Yes.

    Is that a matter that would be discussed with the patient?---That's exactly who – what I was meaning. The patient would be given that he would have a good result whatever treatment was undertaken, but he would have a better result, most likely in view of his physical activities if he had an operation for this type of injury. But all those things that go with operation should be mentioned, the possible complications, the possible things that might happen, and that it would not necessarily be successful.

    [46] Trial ts 208.

13. Mr Slinger's evidence in the above respects was not the subject of cross‑examination.

Alan Skirving

1. Professor Skirving is an orthopaedic surgeon with a particular interest in shoulder surgery. He produced two reports that were tendered in evidence dated 12 February 2017[47] and 3 November 2017[48] respectively.

   [47] Exhibit 26.1 (GAB 147 - 159).

   [48] Exhibit 26.2 (GAB 160 - 162).

2. Professor Skirving examined Mr Chester on 3 November 2017.

3. Professor Skirving's first report outlined the various grades of AC dislocations and identified grade (or Type 3) as the grade with the most controversy with respect to whether it is treated conservatively or surgically and, if surgically, which surgical procedure.[49] He also referred to changes in general opinion in the past 40 to 50 years.

   [49] Exhibit 26.1 (GAB 149).

4. With reference to the choice of treatment Professor Skirving said:[50]

   Another important consideration when choosing Conservative versus surgical management of a Type III dislocation relates to the patients age, general medical condition and in particular his or her sporting activities and occupation. Many surgeons, and there are papers which support this opinion, would advise surgery for this grade of dislocation if the patient has an occupation which requires strong function of the hand and arm at or above shoulder height or if the patient participates in sports which require similar efficient function.

   Mr Chester's occupation would undoubtedly fit him into this category.

   [50] Exhibit 26.1 (GAB 150).

5. As to the timing of surgery, Professor Skirving said:[51]

   In almost all trauma circumstances it is well accepted that surgery performed soon after the injury is easier than later surgery. In some situations there is a recommended brief delay of several days to allow swelling and bleeding to subside but the longer the delay some surgery can become more difficult because of adhesions and scar formation. There are a number of papers, some included, which refer to this issue in respect of acromioclavicular joint acute surgery and most report in favour of early surgery. There is, however, a body of opinion who recommend an initial trial of Conservative management for type III acromioclavicular joint dislocations and then sometime later but often within 3 months assess the patient's progress and, if satisfactory, then advise surgical intervention.

   [51] Exhibit 26.1 (GAB 151 - 152).

6. In relation to Mr Chester's condition specifically, Professor Skirving said:[52]

   I have … reviewed the x-rays taken on 1 August 2009 and these reveal a Type III dislocation but with superior displacement bordering on that seen in a Type V.

   [T]his was clearly a severe injury with an uncertain clinical outcome and with a distinct prospect of residual shoulder pain and restricted function. Accepting the routine initial management including analgesics, ice and rest and support in a broad arm sling, the patient should be advised either to see his general practitioner in order to be referred to an orthopaedic specialist or alternatively referred by the emergency Department Dr to an orthopaedic surgeon, preferably one with specific interests and experience in managing shoulder injuries.

   … Mr Openshaw's operation note is somewhat brief but it seems that he had some difficulty in reducing the clavicle to its normal articulating position with the acromion and because of this he elected to excise the distal end of the clavicle to shorten it. This difficulty was almost certainly due to the long delay from the time of the initial injury.

   …

   As stated earlier, it is my opinion that Mr Openshaw was required to excise the distal end of the clavicle because of the difficulty in reducing the acromioclavicular joint because of the long, six-month delay before the reconstructive surgery was attempted.

   [52] Exhibit 26.1 (GAB 152 - 153).

7. Professor Skirving referred to the potential for residual discomfort to arise from 'abnormal contact of the distal end of the clavicle with the acromion, which in my experience is a not infrequent happening following excision of the distal end of the clavicle.'[53]

   [53] Exhibit 26.1 (GAB 153).

8. In his second report, after clinically examining Mr Chester, Professor Skirving noted that Mr Chester still described pain, weakness and some restriction in movement, although he observed that clinical indication revealed a relatively stable position and successful reconstruction.

9. Professor Skirving returned to Mr Chester's clinical presentation, and the significance of the excision of the distal end of his clavicle, in his oral evidence. He said:[54]

   [54] Trial ts 310 - 311. See also at Trial ts 306.

   Is it fair to say that again in terms of a clinical perspective, in terms of what you might expect to see on – whether it's X-rays or examination, it's all lined up, it's all as it apparently should be?---Yes.

   The difficulty is that he's continued to have pain?---Yes.

   You talked previously - - -?---It's not a normal joint.

   No, no?---The clavicle is in its – in its repaired position, but that hasn't – hasn't really influenced the joint itself.

   And the – the varying surfaces of the joint are fundamentally altered?---Yes.

   Earlier I asked you about the cause or about a – part of your first report where you talked about the reason for the continuing pain. He's still complaining of continuing pain in November or October 2017. Is there any difference to why he would be experiencing pain at the time of this report compared to your earlier report?---Well, I don't know whether it's on this one but I mean on each occasion I've seen Mr Chester he's always stated – or he did for the first few years state that his shoulder was slowly getting better and having – having less pain, but not to the extent that it allowed him to return to the specific things that he wanted to return to, such as the sporting – but more – more his – his actual plastering. But he always – he always informed me that he was, you know, that his shoulder was better, as one would have expected, over the year or two years or whatever it was. It was getting better, but still not to that – and that seemed reasonable. I mean that didn't seem to be – and he always presented in that way. There was never any in – in doubt as to what he was – how he was describing his – his – his present condition.

   I think previously you described the – it not – of it being not a – a not infrequent complication of the type of surgery that he had?---Yes.

   That there was pain as a result of the cutting in of the clavicle - - -?---Yeah.

   - - - interacting with the normal surfaces of the acromion?---Mm hmm.

   Because that remained an explanation for the pain that he – he suffered?---It could well – it could well – it – well, it's probably one of the most likely causes of his pain …

10. Similarly in cross‑examination, Professor Skirving said that 'the actual painful scenario of late excision of the distal end of the clavicle can apply whether it's – whether it's in the correct position, even though it's not a complete joint.'[55]

    [55] Trial ts 318.

11. Finally, in re‑examination Professor Skirving was asked:[56]

    [W]hat we can see on an X-ray is he's had a good repair?---He's had a good reconstruction.

    Yes?---But it's not a normal joint.

    No. And the alignment is good?---The alignment is good, yes.

    But he has residual symptoms?---He has residual symptoms which are almost certainly in large part due to the fact that he's required an excision at the distal end of the clavicle as part of the surgery.

Michael Alexeeff

[56] Trial ts 325.

1. Mr Alexeeff is an orthopaedic surgeon, with special interests in reconstruction of the shoulder, hip and knee. Mr Alexeeff produced six separate reports that were tendered in evidence, dated 23 May 2012,[57] 17 July 2013,[58] 26 June 2014,[59] 22 July 2014,[60] 22 November 2016,[61] 14 February 2018[62] and 6 August 2019[63] respectively.

   [57] Exhibit 23.1 (GAB 102 - 107).

   [58] Exhibit 23.2 (GAB 108 - 110).

   [59] Exhibit 23.3 (GAB 111 - 120).

   [60] Exhibit 23.4 (GAB 121 - 122).

   [61] Exhibit 23.5 (GAB 123 - 130).

   [62] Exhibit 23.6 (GAB 131 - 134).

   [63] Exhibit 23.7 (GAB 135 - 137).

2. Mr Alexeeff did not examine Mr Chester.

3. As with Mr Slinger's reports, not all of Mr Alexeeff's reports were relevant to the question of causation or the likely outcome of alternative treatments. Indeed, for the most part those reports were directed towards issues of breach: for example, whether the treatment, care and management provided by the Hospital was reasonable or would be widely accepted as competent professional practice.

4. The reports did, however, include matters that were relevant to the causation issues. In concluding that, in his opinion the care provided by the Hospital was reasonable, Mr Alexeeff's first report observed that 'it is rare for acute acromio-clavicular joint dislocation to be treated surgically acutely'.[64] His evidence generally, in relation to conservative versus operative treatment was that the current evidence from the medical literature was inconclusive in terms for support as to operative or non-operative treatment.[65]

   [64] Exhibit 23.1 (GAB 106).

   [65] Trial ts 363.

5. In his report of 27 June 2014, in the context of a discussion of Mr Chester's reported history, Mr Alexeeff referred to the effect of delay in surgery on the nature of the procedure performed. He said, for example:

   I would submit that most AC joint dislocations, over a matter of weeks or months become irreducible and/or remain displaced. Relocation cannot be achieved without resection of the distal clavicle. The degree of resection is usually of the order of 1 cm or less, with this consistent with that reported by this man's treating Consultant Orthopaedic surgeon.

   …

   In most instances, where the AC joint has been dislocated for some weeks, to realign the joint, it is necessary to excise a portion of the lateral end of the clavicle to achieve joint congruity (Item a).

   …

   Where non-operative treatment is unsuccessful, it is necessary to reconstruct the acromio-clavicular joint. Given that the procedure is delayed, it is always almost necessary to excise the distal clavicle to allow reduction of the joint. In some procedures, this is necessary to achieve the reconstruction (Weaver Dunn procedure and modified Weaver Dunn procedure).

6. In his evidence, however, Mr Alexeeff disagreed with the proposition that the excision of the distal end of the clavicle can cause a different level of pain:[66]

   Does it cause different level of pain?---No. It shouldn't. Because you're getting rid of the joint capsule which is where the pain fibres are, you're obviating the – the – the likely development of degenerative changes down the track. So, no, there's no downside to it.

   …

   I understood Mr Skirving to say that there was a problem when you cut away a bit of bone means you've got a sort of a blunt rough edge against one – the normal one that's got ligaments or a proper surface on it?---Initially you do. Whether you put in a bit of acromion into the hole or whatever. But that all scars up, that becomes a fibrous joint. And you've taken away the meniscus that's in the AC joint, you've taken away the joint capsule. So there's no issue down the track.

   [66] Trial ts 347.

7. Mr Alexeeff was specifically asked to address Mr Skirving's evidence in this regard and gave evidence that 'inevitably mother nature steps in. The surfaces seal over and you get a fibrous joint'.[67]

   [67] Trial ts 373.

8. In cross-examination, Mr Alexeeff confirmed that he 'strongly' disagreed with his orthopaedic colleagues that Mr Chester's residual symptoms were due to the fact that, with the excision of the distal end of the clavicle, he did not have a normal AC joint.[68]

   [68] Trial ts 392.

9. Mr Alexeeff did, however, accept that the need to excise the distal clavicle arose from the passage of time between dislocation and surgery:[69]

   Do you agree, Mr Alexeeff, that over time, a dislocation can be more difficult, if not become more difficult or become impossible to reduce?---As I said in answer to your learned colleague that after three months the joints would be reducing. You've got to excise the distal clavicle to reduce it.

   If you had surgery before that, you don't necessarily have to - - -?---No.

   [69] Trial ts 390.

10. We turn to the learned trial judge's reasons in relation to the issues of causation.

Primary reasons in relation to causation

1. Given the nature of the appeal, it is necessary to set out the learned trial judge's reasons in relation to the issues of causation in some detail.

2. Relatively early in the Primary reasons, the learned trial identified in general terms the distinction between the treatment of a grade 3 shoulder dislocation.

   [44]Based on the expert evidence and the literature, it can be seen that it is widely accepted that both conservative and surgical treatments are competent professional practice for AC joint dislocations of the kind suffered by Mr Chester.

   [45]If treatment for the kind of injury suffered by Mr Chester is to be surgical, then it is agreed by his expert witnesses that that surgery should be carried out within two to four weeks post injury, after allowing time for swelling to dissipate with the arm being kept in a fixed position by way of a broad arm sling. The procedure then conducted is by way of reduction, ie effectively returning the clavicle back into its proper position relative to the acromion. Physiotherapy will follow after such surgery.

   [46]If such surgery is not so undertaken within this approximate time frame, but is still necessary at a later time, then it will invariably be necessary to reconstruct the shoulder, including excising the distal end of the clavicle in order to fix it back into its proper position. Again, physiotherapy will follow such surgery.

1. As is apparent, his Honour accepted that a consequence of delayed surgery was the need to excise the distal end of the clavicle.

2. Later in the reasons, the learned trial judge summarised the differing views between Mr Slinger, Professor Skirving and Mr Alexeeff in relation to their approach to grade 3 injuries in more detail. His Honour said:

   [68]Professor Skirving gave evidence that a grade 3 injury will not reduce spontaneously and will leave some malfunction, the degree of which will vary. Conservative treatment over a period of say, six months, might lead to a bad result, in which case surgery then remains an alternative.

   [69]Professor Skirving said that Mr Chester's presentation was the kind of grade 3 injury which causes the most controversy between medical practitioners as to treatment. His own opinion has changed from time to time as to whether surgery or conservative treatment is the most appropriate option.

   [70]Professor Skirving referred to surgery which might fail. There can be complications from the administration of a general anaesthetic. Further, there may be surgical infection. As Professor Skirving said, he has 'lots and lots and lots of patients who would get a perfect resolution out of … some forms of surgery … and some don't'.

   [71]Professor Skirving thought Mr Chester's occupation as a plasterer demanded a functional recovery expected from surgery that might not be obtained from conservative treatment.

   [72]Mr Slinger also referred to a grade 3 injury being treated conservatively or surgically, noting that there are differing opinions. He noted opinions that results of surgery and non‑surgery are comparable. If there were to be surgery, then he would normally prefer it to be undertaken within two weeks of the injury. Once the decision is made to operate, then surgery can occur on the same day or the following day.

   [73]Mr Slinger's opinion was that for Mr Chester, early reduction surgery would have given him a better chance in terms of recovery due to his personal situation as a plasterer, as compared to someone whose employment or lifestyle might be more sedentary in nature.

   [74]Mr Alexeeff gave evidence that conservative treatment is the preferred option for this kind of injury. This requires the arm to be maintained in a fixed position in a broad arm sling for say, six to eight weeks, but certainly never less than four weeks. Without such a sling, the arm hangs down. The sling lifts the arm up and realigns it into its proper position, such that the joint is reduced and becomes aligned.

   [75]Mr Alexeeff would not operate at two to three weeks post injury. Time was required to allow the initial swelling to settle and any such surgery in that time would interrupt the healing process with the arm being immobilised in the sling. Surgery was not made more difficult by waiting. The deltoid was still required to be split and there may or may not be a need to excise the distal end of the clavicle.

   [76]Mr Alexeeff also referred to the 'downsides' of operative treatment.

   [77]Mr Alexeeff's opinion was that the current evidence from the medical literature is that the situation is inconclusive as to whether the best treatment is surgical or conservative. The medical literature does not suggest that there is a better outcome by initial stabilisation under surgery versus secondary reconstruction at a later time, although it is not possible to simply reduce the clavicle after a three month post-injury period. He said there is even disagreement as to the best form of surgical treatment. He outlined different types of surgical procedures for AC joint repair which, over time, have resulted in failure. In this respect, Mr Slinger also observed that there are numerous surgical procedures available for this kind of injury, which is an indication that no one of those procedures is necessarily effective. He added that surgery would not necessarily be successful.

   [78]Mr Alexeeff reserved surgery for those who fail to achieve a satisfactory conservative outcome, or for the most severe injuries, which Mr Chester had not suffered. His view was that a better result could not be obtained from surgery than might have been obtained from conservative treatment.

   [79]Mr Alexeeff thought that immobilisation for four to six weeks was appropriate treatment and if symptoms thereafter persisted, then the patient should be referred to an orthopaedic surgeon. It was, however, only after this time that mobilisation by way of physiotherapy could begin, but in some cases it could even be for a period of up to eight weeks.

3. His Honour then concluded under the heading 'Findings on the preferred treatment':

   [80]There are competent orthopaedic surgeons who are divided as to conservative or surgical treatment for this kind of injury. The medical literature clearly establishes that, even today, in general terms, the treatment of a grade 3 joint dislocation by conservative means is in accordance with a practice widely accepted as competent professional practice, with the literature being inconclusive as to whether the best treatment is surgical or conservative. The results are comparable.

   [81]As indicated above, the choice between surgery or conservative treatment for this kind of injury is a choice to be made by a fully informed patient. There are merits in either form of treatment.

   [82]The evidence of Professor Skirving and Mr Slinger as to Mr Chester's employment as a plasterer supports a preference for early reduction surgery, but there is the opposing view of Mr Alexeeff for conservative treatment, for which there is ample support in the medical literature. It cannot be found, as a fact, that surgery was the preferred treatment or, as will be seen shortly, early surgery would have probably have resulted in a better outcome than conservative treatment handled correctly, as to which see [115] - [118] below. Mr Chester has failed to prove surgery was the preferred treatment.

4. We will return later to the significance, if any, of what is the 'preferred treatment' in this context.

5. His Honour then summarised some of the expert evidence under the heading 'Delayed surgery':

   [83]Professor Skirving thought that Mr Chester has had a satisfactory outcome and alignment of the acromionclavicular [sic] joint from Mr Openshaw's reconstructive surgery. He said that Mr Chester described his shoulder as slowly getting better for the first few years after this surgery, but not to the extent it allowed him to return to sport and his usual work.

   [84]Professor Skirving's view was that the delayed surgery was unlikely to completely resolve Mr Chester's shoulder symptoms because of damage to the AC joint and certainly almost because of the excision at the distal end of the clavicle and so, it was probably a little different from the expected outcome had surgery been performed sooner. He said the delayed surgery may have prolonged Mr Chester's recovery and perhaps impaired the final outcome.

   [85]Professor Skirving also indicated that pain is not an infrequent complication of reconstruction surgery. He said that the excision of the distal end of the clavicle is probably the most likely cause of Mr Chester's pain with bone rubbing on bone. Mr Alexeeff strongly disagreed with this explaining that a fibrous joint is recreated some six to eight weeks after the excision. Such an excision is usually performed with the aim of preventing osteoarthritic changes in later life.

   [86]Mr Slinger was of the view that Mr Chester has had a good result from Mr Openshaw's surgery. However, his evidence was that early surgery would have given Mr Chester a better chance in terms of recovery by reason of his work as a plasterer. Possibly, a full reconstruction and a tendon graft might have been avoided.

   [87]Mr Slinger said the delay in surgery was a factor slowing Mr Chester's recovery and may have produced a less than favourable result. He found it difficult to be certain that late surgical intervention was associated with a less than expected recovery, but it may have produced a less than favourable result. It could have been better had there been earlier surgery and physiotherapy.

   [88]Mr Alexeeff did not offer an opinion on Mr Openshaw's surgery.

6. The learned trial judge concluded, under the heading, 'Findings on the expert evidence as to treatment and the delay in surgery':

   [89]In summary:

   1.both Professor Skirving and Mr Slinger thought that Mr Chester has had a satisfactory outcome from reconstruction surgery.

   2.Professor Skirving said that Mr Chester's occupation as a plasterer demanded a more functional recovery that might not have been obtained from conservative treatment. Mr Slinger said that early reduction surgery would have given Mr Chester a better chance at recovery for his occupation. It could have been better with earlier surgery.

   3.Professor Skirving said that delayed surgery perhaps impaired the final outcome, which was probably a little different from the expected outcome of earlier surgery. Pain after reconstruction is not infrequent, but Mr Alexeeff strongly disagreed with that proposition. Mr Slinger said it could have been better had there been earlier reduction surgery. Later reconstruction surgery may have produced a less than favourable result.

   4.Professor Skirving referred to failed surgeries and those which produce complications. Mr Alexeeff also spoke of failed surgeries and Mr Slinger referred to numerous types of AC joint repair surgeries indicating that no one of them is necessarily effective.

   [90]The evidence of Mr Slinger and Professor Skirving is not persuasive of a finding that it is more probable than not that Mr Chester's ongoing left shoulder pain has been caused by a failure to proceed with early reduction surgery.

7. As noted at [11] above, this final paragraph may be understood as the learned trial judge's conclusion as to the second of the causation questions identified at [8] above, namely whether, if Mr Chester had undergone early reduction surgery, he would have had a better result.

8. His Honour then went on to deal with a number of matters relevant to the first of the causation questions identified at [8] above (namely, whether, if he had been referred to an orthopaedic surgeon following his attendance at the Hospital, Mr Chester would have undergone early reduction surgery) and perhaps to the issue of causation more generally. As they formed the basis for his Honour's final conclusion, it is necessary to set them out in full:

   Matters not in evidence

   [91]First, the rhetorical question can be posed as to why would someone proceed to surgery if there is an alternative conservative option for which the evidence in the literature is inconclusive as to whether there is a better outcome by way of either initial reduction surgery or conservative treatment?

   [92]Secondly, accepting that the hospital should have sent Mr Chester for orthopaedic review or advised it and/or requested his general medical practitioner to make such a referral, and even if it is assumed that either or both Dr Lim and Dr Taylor would have referred Mr Chester for orthopaedic review in mid August/early September 2009 if so directed by the hospital, it is not known to whom that referral could or would have been made and if made, with what result.

   [93]If it is assumed that the referral might have been made to Ms Pratsis or Mr Openshaw in nearby Bunbury or to another orthopaedic surgeon, if any, employed at a Bunbury hospital or any other orthopaedic surgeon in Bunbury, it is not known what opinion Ms Pratsis or Mr Openshaw or such employed or other surgeon held as to conservative treatment versus surgery, both in the general sense and in what they might have recommended for Mr Chester, given his personal circumstances. Ms Pratsis was not called as a witness. Mr Openshaw is now deceased. There was no evidence from other orthopaedic surgeons, if any, employed in hospitals or in private practice in Bunbury.

   [94]Dr Taylor's opinion on treatment may have been shaped by his interest, or by past experience, in injuries of this kind and by way of past referrals to, and advice from, Ms Pratsis and Mr Openshaw or other orthopaedic surgeons in Bunbury, or elsewhere. It might be that Dr Taylor would refer a patient to a surgeon with views sympathetic to his own. These matters were not examined in evidence. Nor was there any examination with a view to demonstrating that Dr Taylor did or did not have an interest in, or the relevant experience to deal with, an injury of the kind Mr Chester suffered. Professor Skirving indicated that a general medical practitioner might have such an interest or experience and therefore be able to determine appropriate treatment.

   [95]Likewise, there is no evidence whether a public patient, such as Mr Chester, could have received immediate or early reduction surgery in any event. This is the case even if the Busselton Regional Hospital referred Mr Chester directly to a Bunbury hospital. It might well be the case that the Busselton emergency department doctors knew that Bunbury hospitals do not have an orthopaedic department and that they therefore left the need for Mr Chester's orthopaedic review to his usual general medical practitioner to be determined two weeks later when swelling had settled. Further, it is not known if an emergency department doctor can make a referral to an orthopaedic surgeon in private practice, given that the emergency department will cease to monitor that patient.

   [96]Mr Slinger did say that immediate treatment could be obtained the same or the next day for this kind of injury once the decision was made to operate. However, this was not qualified by evidence to show that such early treatment was available to a public patient, either in Bunbury or Perth. Further, Professor Mountain was not able to comment on the placement by Mr Openshaw of Mr Chester on a semi‑urgent list and said that it would be necessary to ask Mr Openshaw the reason for that.

   [97]Dr Taylor's surgery records show that on 12 August 2009, Dr Lim provided Centrelink claim forms to Mr Chester.

   [98]On 7 December 2009, Mr Openshaw placed Mr Chester on a 13 month public waiting list. It took an unknown period of time from before 21 January 2010 for Mr Chester to borrow funds for surgery. Ultimately he was able to do so and that surgery proceeded on 24 February 2010. It is not known whether he would have been able to raise funds from his brother or anyone within an approximate one month period from his original injury so as to become a private patient for early reduction surgery.

   [99]Mr Chester's personal and financial circumstances of being a public patient without ready funds for privately funded surgery and probably being unable to raise funds within a limited time all lead to the inference of him not being able to proceed with that early surgery. This would, in any event, have left him requiring later the reconstruction surgery, which he ultimately had, with good result.

   [100]Even if Mr Chester had been able to raise funds and had consulted an orthopaedic surgeon by mid‑August or even late August/early September 2009, it cannot be assumed that, if then offered the reduction surgery, he would have accepted it. Given his financial circumstances, the probable requirement to repay borrowed money, the inconclusive evidence in the medical literature as to the likelihood of a better or quicker result from surgery and the risks of surgery, he may not have been persuaded, at that time, to undertake the risk of surgery on borrowed funds.

   [101]These matters all needed to be advised to, and discussed with, him so as to enable him to make an early, fully informed consent to any proposed surgery. The fact that immediately following his injury these matters were not discussed with him by an orthopaedic surgeon does not now mean that he would have elected to proceed to surgery, have been able to raise funds for that surgery without delay, and even if he did so elect and could raise funds for it, that such surgery would have been more successful than his reconstruction surgery.

   [102]Further, it is not known what type of reduction surgery might have been offered to Mr Chester. It is not disputed that some types of such surgery did not provide good results.

   [103]There is a lack of evidence pointing to a probable better outcome from reduction surgery in the event of it having happened. Professor Skirving advised that surgery is not always successful. There are risks with surgery. Mr Slinger only said there could have been a better result from early reduction surgery and if undertaken, then a full reconstruction and tendon graft might possibly have been avoided, but no one procedure is necessarily effective.

   [104]Mr Slinger referred to the numerous types of surgery available, which indicates that no one procedure is necessarily effective. Mr Alexeeff agreed, but said that a good result was open with appropriate conservative treatment, with surgery being a fall back. If surgery failed, then conservative treatment would not be an option.

   [105]Finally, once early September 2009 had passed without surgery, any later surgery was inevitably by way of a reconstruction and that is what occurred in February 2010. In January and June 2011, X-rays revealed Mr Chester's left shoulder AC joint to be normal. The reconstruction surgery which was ultimately performed provided a good result, at least in terms of anatomical presentation under X-ray.

   The motor vehicle crash – 20 November 2011

   [106]Complicating matters is the fact that on 20 November 2011, Mr Chester was involved in a motor vehicle crash in which his principal injuries were to his left hand. Relevantly however, contemporaneous X-ray evidence revealed he also suffered a 'widening of the left AC joint, with slight inferior subluxation of the left acromion'. At that time, he complained of left shoulder pain. This therefore leads to a further AC joint injury from the motor vehicle crash.

   [107]Mr Slinger was consulted about this crash but, Mr Chester failed to advise Professor Skirving and Dr Hammersley that he had been involved in it, yet he continued to consult them for further reports about his 2009 injury and its consequences. They only found out about the crash in the days leading up to the trial in this action.

   [108]A CT arthrogram performed on 21 November 2012 revealed a tear in the left shoulder supraspinatus and labral detachment.

   [109]Professor Skirving was unable to say whether Mr Chester's present symptoms are related to the original incident or to his motor vehicle crash. He thought that the partial supraspinatus tear might be the cause of Mr Chester's pain and that it could have been caused in the motor vehicle crash. Such a tear is not usually associated with a dislocation of the clavicle. He also thought the tear in the supraspinatus could simply be an incidental finding without symptoms. The difficulty is that the injuries to the supraspinatus and labrum have never been investigated.

   [110]Mr Slinger said the supraspinatus tear was possibly caused by the crash. There is no way of knowing. Further, such tears commonly occur in labourers without symptoms and after injury. The tear might not be symptomatic and if there had been a subluxation after the car crash, then symptoms would last for six to eight weeks, following which there would be a full recovery.

   [111]Dr Hammersley accepted that the supraspinatus and labral tears could have resulted from the motor vehicle crash. He could not rule out the tear as a possible explanation for Mr Chester's present pain. The labral tear does not normally provide symptoms in normal day to day life, but Mr Chester's plastering work could be an explanation, rather than the operation bed. Radiological investigation after the crash did not reveal any adverse feature in relation to the coraco‑clavicular reconstruction procedure. Dr Hammersley said this requires further investigation by a shoulder surgeon.

   [112]Like Dr Hammersley, Mr Alexeeff thought the partial supraspinatus and labral tears were physiological findings frequently found in a plasterer. Mr Alexeeff said the tears were not part of the original injury or the motor vehicle crash.

   [113]Mr Alexeeff thought that the labral injury which causes joint clicking is not part of the AC joint, but he was unable to say whether it is the cause of Mr Chester's pain. He found it to be significant.

   [114]It can be seen that the consequences of the motor vehicle crash have never been investigated and their role in the causation of Mr Chester's ongoing shoulder pain and discomfort remains unclear.

   Failure to immobilise the arm during August and September 2009

   [115]Further complicating Mr Chester's recovery by way of conservative treatment is an apparent failure to have ensured that Mr Chester's arm was kept immobilised for the required period of between four and eight weeks post-injury until sufficient healing had occurred to enable physiotherapy to begin. On the evidence:

   1.on 12 August 2009, Mr Chester complained of reduced mobility in the left arm and Dr Lim examined that arm's range of movement.

   2.On 2 September 2009, Mr Chester complained that he still had a lot of trouble moving the shoulder.

   3.On 25 September 2009, Mr Chester complained of the joint popping out when he took weight through it. This was about the eighth week post injury.

   4.Mr Chester only attended for two physiotherapy sessions over five days in mid-November 2009.

   [116]Mr Chester's failure to properly immobilise his left shoulder may be the cause, or a contributing cause, to the failure of conservative treatment under Dr Taylor's care. This issue was not addressed during the trial.

   [117]Clearly, from Mr Alexeeff's evidence, if the preferred treatment was to be conservative, then Mr Chester's left arm should have been properly immobilised at all times until at least early September, or even late September, when the clavicle should have realigned into its proper position and reduced itself and physiotherapy could then commence. However, on the evidence, the arm was not kept properly immobilised and Mr Alexeeff was critical of this.

   [118]Mr Slinger was also critical of Mr Chester not receiving essential physiotherapy following his conservative treatment, such that it was bound to fail with him then requiring reconstruction surgery. Mr Slinger's attention was not drawn to the two physiotherapy attendances referred to above, but they may well have been too late in mid‑November 2009 and insufficient to be effective. However, as noted above, this issue was not pursued at trial.

1. The learned trial judge then proceeded to make his ultimate findings as to causation:

   [119]Following Tabet v Gett [2010] HCA 12, the issue can be framed in this way:

   Can Mr Chester prove that it is more probable than not that had the hospital referred him for orthopaedic review, the present problems suffered by him would have been avoided?

   [120]It is not sufficient to say that possibly the present problems could have been avoided. It is not open to argue that with early reduction of the AC joint, Mr Chester's present position might not have eventuated and also to say that, what he now suffers from has resulted in loss and damage. The present position does not permit retrospective reasoning. The loss of a chance is insufficient. Mr Chester cannot argue that his loss and damage result from the possibility that the present position would have been less severe had he proceeded to early reduction surgery: Tabet v Gett [54], [60] and [152].

   [121]The requirement of causation is not overcome by redefining the mere possibility that Mr Chester's ongoing problems might not have eventuated as a chance and then saying that that chance has been lost, given that now he does have problems with his left shoulder. It is not open to reason that the present position of shoulder pain must be the result of the negligent act or omission of the hospital.

   [122]There is an absence of cogent evidence that Mr Chester is worse off by not having early reduction surgery than by proceeding to treat his injury conservatively and when that failed, by later having reconstruction surgery and being where he is today. That early surgery might have made a difference does not prove causation: Adeels Palace at [45] and see also [54] ‑ [56].

   [123]It is not possible on the matters outlined above to find that the failures of the hospital to report the need for orthopaedic review, either orally or in the discharge summary, have caused Mr Chester to suffer a result which is less than he might have had in the event he had been referred to an orthopaedic surgeon, who may or may not have proceeded with reduction surgery within the two to four week period post injury. The 'but for test' in Adeels Palace [45] has not be met.

   [124]Further, accepting that advice should have been given to attend an orthopaedic surgeon, either in the discharge summary or orally to Mr Chester, it remains that the written advice was for him to see his general practitioner in two weeks, which still left another one to two weeks as being the optimum time within which any surgery by way of reduction could have been undertaken. Even assuming that Dr Lim blindly followed the discharge summary without more, he still required Mr Chester to return within two weeks, being at the end of the optimum time for surgery. Mr Chester did return as directed at which time, Dr Taylor then determined his own course of treatment as outlined above. Dr Taylor did not see the need for a referral because his view was that for Mr Chester's subluxed or dislocated AC joint, the treatment was essentially the same in the initial phase. Dr Taylor was not misled by the discharge summary. There is no acceptable reason to consider his advice would have been otherwise had the hospital's medical practitioners suggested orthopaedic review.

   [125]For all of the reasons outlined above, Mr Chester has not proved that it was more probable than not that anything turns on the incorrect description of a subluxation in the discharge summary or that, had the hospital's general practitioners required orthopaedic review of the dislocation forthwith, any defect from which he now suffers by reason of widely accepted conservative treatment followed by later reconstruction surgery would have been avoided in circumstances where:

   1.the hospital did not cause Mr Chester's initial injury. It only provided initial treatment for that injury; and

   2.the hospital did not have either an orthopaedic department or a general medical practice and so its doctors properly referred Mr Chester to his general medical practitioner for further review and treatment. Thereafter, the hospital took no further role in the management of Mr Chester's shoulder injury, which was then left to Dr Taylor and his surgery.

   [126]However, even accepting that the hospital should have referred Mr Chester direct to a Bunbury hospital or elsewhere for further orthopaedic investigation and review by an orthopaedic surgeon because:

   1.his occupation as a plasterer demanded surgery for a better chance of a functional recovery than might have been achieved from conservative treatment;

   2.early reduction surgery might have avoided the need for excision of the end of the clavicle; and

   3.such early surgery might have produced a better result than the later reconstruction surgery, without pain from an excised clavicle,

   the matters set out at [91] ‑ [118] above, both individually and collectively, preclude a finding in Mr Chester's favour.

2. We turn to the grounds of appeal.

Grounds of appeal and the issues for determination

1. As we observed at the commencement of these reasons, the grounds of appeal in this case were poorly prepared. It is not necessary, nor would it be productive, to deal with each of the grounds in terms. As the case was developed at the hearing of the appeal, it was apparent that Mr Chester's real focus was on two matters arising out of grounds 2 and 4 (and to a lesser extent ground 3).

2. In particular, ground 2 challenged the finding that the evidence of Mr Slinger and Professor Skirving 'is not persuasive of a finding that it is more probable than not that Mr Chester's ongoing left shoulder pain has been caused by a failure to proceed with early reduction surgery'.[70] In that regard ground 2 included the following:

   And whereas their (sic) was conflicting evidence by Mr Alexeeff the learned trial judge failed to adequately consider both sets of evidence and give reasons as to why he preferred Mr Alexeff (sic) to the three specialist practitioners for the Plaintiff.

   [70] Primary reasons [90]; WAB 5 ground 2.1.

3. As will be apparent, this aspect of ground 2 was directed to what we have identified as the second of the causation questions set out at [8] above, namely whether, if Mr Chester had undergone early reduction surgery, he would have had a better result. It is, in our view, tolerably clear that this ground alleged that the learned trial judge failed to give adequate reasons for rejecting Mr Chester's case in that regard.

4. Grounds 3 and 4, were directed to the matters set out at [91] to [118] of the Primary reasons and his Honour's reliance on them 'individually and collectively' for concluding (at Primary reasons [126]) that they 'preclude a finding in Mr Chester's favour.' It is not entirely clear whether that conclusion was directed to the first, or both, of the causation questions identified at [8] above. As counsel for the Hospital accepted at the hearing of the appeal, the matters set out at [91] to [118] appear to be directed at the question of whether Mr Chester would have had earlier surgery.[71] Nevertheless, they could be understood as directed to both questions.

   [71] Appeal ts 77.

5. Ground 3 contended that the matters referred to by his Honour (particularly at Primary reasons [91] to [105]) were 'speculative'. Ground 4, in more general terms, contended that the learned trial judge 'failed to consider all the issues before him and to give a path of reasoning so as to enable a full and proper adjudication of the issues'.

6. Accordingly, grounds 2, 3 and 4, taken together, contend that the learned trial judge failed to provide adequate reasons explaining the process by which he concluded that Mr Chester had failed to establish a causal connection between his ongoing injuries and the failure to refer him for orthopaedic review.

7. The principles relevant to an evaluation of the adequacy of reasons are well established.[72] Relevantly, those principles include the following:[73]

   (a)Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error;

   (b)It is not necessary to refer to every submission advanced by a party. However, the court must engage with the central element(s) of a losing party's case and explain why that case fails; and

   (c)In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's consideration.

   [72] Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 (CEO v IGR) [112] (Quinlan CJ, Murphy & Beech JJA); Mabior [99] (Quinlan CJ, Murphy & Pritchard JJA).

   [73] CEO v IGR [112(2), (3) & (4)] (Quinlan CJ, Murphy & Beech JJA)

8. As we observed earlier, appellable error from inadequate reasons does not necessarily result in a new trial. In that regard, as Meagher JA observed in Beale v GIO (NSW):[74]

   An appeal court is entitled to consider the matter, and if appropriate reasons are given, may itself decide the matter. Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial.

   [74] Beale v GIO (NSW), 444 (Meagher JA); see also Mt Lawley v WAPC [29] (Steytler, Templeman & Simmonds JJ).

9. In the present appeal, the Hospital submitted both that:

   (a)the learned trial judge did adequately set out his process of reasoning for concluding that Mr Chester had not established that his outcome would have been any different,[75] albeit that counsel submitted the findings on the two questions of causation were 'very implicit'[76] and 'not necessarily elegantly or best articulated';[77] and

   (b)in any event, whatever the inadequacy in the learned trial judge's reasons, the appeal should be dismissed because findings not affected by error sustained the result reached by his Honour.[78]

   [75] Appeal ts 79 ‑ 81.

   [76] Appeal ts 77.

   [77] Appeal ts 51, 77.

   [78] Appeal ts 78 - 79.

10. In addressing the appeal it is therefore necessary to consider both the adequacy of the Primary reasons and, in any event, whether the only conclusion open on the evidence available at trial was the conclusion reached by the learned trial judge.

11. In light of this, the balance of these reasons addresses the following issues:

    (a)whether the learned trial judge found, and gave adequate reasons for finding, that Mr Chester failed to prove that if he had undergone early reduction surgery, he would have had a better result;

    (b)whether the learned trial judge found, and gave adequate reasons for finding, that if Mr Chester had been referred to an orthopaedic surgeon, he would have undergone early reduction surgery; and

    (c)if the learned trial judge's reasons were inadequate, whether the only conclusion open on the evidence available at trial was the conclusion reached by his Honour.

12. As is reflected in the formulation of the questions identified at [8] above, the first of these issues (whether early surgery would have led to a better result) should logically arise after the second issue (whether Mr Chester would have had early surgery). We have, nevertheless, dealt with them in the reverse order as it better accords with the structure of the Primary reasons (and the grounds of appeal).

13. Turning then to each of those issues.

Whether the judge found, and if so gave adequate reasons for finding, that Mr Chester failed to prove that if he had undergone early reduction surgery, he would have had a better result

1. In our view, it is sufficiently clear from the learned trial judge's reasons that he did find that Mr Chester failed to prove that if he had undergone early reduction surgery, he would have had a better result. That finding can be found in his Honour's conclusion at Primary reasons [90] that:

   The evidence of Mr Slinger and Professor Skirving is not persuasive of a finding that it is more probable than not that Mr Chester's ongoing left shoulder pain has been caused by a failure to proceed with early reduction surgery.

2. The real issue is whether his Honour gave adequate reasons for that finding. That is, did his Honour adequately explain why the evidence of Mr Slinger and Professor Skirving was not persuasive of a finding that Mr Chester's ongoing left shoulder pain was caused by a failure to proceed with early reduction surgery?

3. To answer that question it is necessary to focus more closely on Mr Chester's case as it was presented at trial in relation to the likely outcome of early surgery.

4. In that regard, the evidence adduced from Mr Slinger and Professor Skirving as to the likely outcome of earlier surgery took two broad forms: first, as to the better outcomes associated with early surgery generally, and secondly, as to specific features of the surgery ultimately performed by Mr Openshaw.

5. The first form of evidence can be seen in what the learned trial judge identified as Mr Slinger and Professor Skirving's 'preference' for earlier surgery in a patient such as Mr Chester. Take, for example:

   (a)Mr Slinger's evidence that 'the surgery which I believe would have been required would have probably been of a lesser procedure, and more likely to have been associated with a more favourable outcome and a better functional result';[79]

   (b)Mr Slinger's evidence that 'the patient would be given that he would have a good result whatever treatment was undertaken, but he would have a better result, most likely in view of his physical activities if he had an operation for this type of injury';[80] and

   (c)Professor Skirving's evidence that 'there are a number of papers, some included, which refer to this issue in respect of acromioclavicular joint acute surgery and most report in favour of early surgery'.[81]

   [79] See [45] above.

   [80] See [52] above.

   [81] GAB 151.

6. Evidence of this kind consists, in essence, of an extrapolation by the expert witness, based on their knowledge and experience, of the likely outcome for a particular patient, given the observed outcomes across patients generally. As in the case of epidemiological research or other statistical indicators as to the causes of diseases, evidence of this kind is not, of itself, directed to the individual circumstances of the case but, rather, invites the inference, alone or in combination with other evidence, that the plaintiff would likely have had the extrapolated outcome.[82]

   [82] Ellis [279] ‑ [280] (Quinlan CJ, Mitchell & Beech JJA).

7. There was, of course, opposing evidence from Mr Alexeeff, to the effect that the current evidence from the medical literature was inconclusive in terms of support as to operative or non-operative treatment.[83]

   [83] See [68] above.

8. The second type of evidence adduced in the present case was more specifically directed to the particular procedure undergone by Mr Chester, when compared to the kind of procedure he would have undergone with early reduction surgery. Relevantly, that evidence included the fact that the procedure that Mr Chester did have (on 24 February 2010) included the excision of the distal end of the clavicle.

9. In that regard, all of the expert evidence supported the conclusion that if Mr Chester had undergone early reduction surgery, the surgeon would not have been required to excise the distal end of the clavicle.[84] While the learned trial judge did not make an express finding to that effect in relation to Mr Chester, it is at least implicit in his Honour's findings as to the different treatments generally.[85]

   [84] See [49] above (Mr Slinger); [59] above (Professor Skirving); [69], [73] above (Mr Alexeeff).

   [85] See in particular Primary reasons [45] ‑ [46] ([76] above).

10. In that context, Professor Skirving, in particular, gave evidence that Mr Chester's residual symptoms 'are almost certainly in large part due to the fact that he's required an excision of the distal end of the clavicle as part of the surgery'.[86]

    [86] See [64] above.

11. This, and other evidence to similar effect,[87] was different in kind to the evidence based on the observed outcomes across patients generally. It was evidence as to a specific physiological cause of Mr Chester's residual condition that was the result of not having had earlier reduction surgery. If accepted, that evidence would have supported a finding that it was more probable than not that Mr Chester's ongoing left shoulder pain was caused by the failure to proceed with early reduction surgery.

    [87] See [50], [60] ‑ [63] above.

12. The adequacy of the learned trial judge's reasons required attention be directed to these two aspects of Mr Chester's case.

13. As we have noted, the learned trial judge expressed his conclusions in relation to the first type of evidence in terms of whether early surgery was the 'preferred treatment'.[88] The 'preference' to which his Honour referred, however, appears to be a reference to the 'preferences' of orthopaedic surgeons and the finding was directed to whether the court should favour one or other of those 'preferences'. Whether a particular form of treatment was clearly 'preferable' (in some objective sense) might, of course, be relevant to the question of breach in a particular case; for example, where it is alleged that a practitioner was negligent for not recommending one form of treatment over another. And, indeed, in the present case, the learned trial judge in this context expressed one of his findings in terms that conservative treatment is 'in accordance with a practice widely accepted as competent professional practice'.[89] That is the language of breach, and in particular, the language of s 5PB of the Civil Liability Act 2002 (WA).

    [88] See Primary reasons [80] ‑ [82] (see [79] above).

    [89] Primary reasons [80] (see above [79]).

14. His Honour was not, however, dealing with an allegation that a recommendation by an orthopaedic surgeon of conservative treatment was negligent. His Honour was dealing with a case in which the relevant breach was that the Hospital should have referred Mr Chester to an orthopaedic surgeon as to his choice of proceeding to surgery or conservative treatment, and whether, had Mr Chester been so referred, he would probably have had successful early reduction surgery.

15. In that context the only possible relevance of the 'preferences' of the orthopaedic surgeons was that the preference of a hypothetical reviewing surgeon might affect the counter-factual question as to whether Mr Chester would have chosen early reduction surgery (had he been referred to an orthopaedic surgeon). That is because the hypothetical advice that Mr Chester would have received had he been referred to an orthopaedic surgeon would be relevant to (but not determinative of) what Mr Chester would have done.[90]

    [90] Civil Liability Act 2002 (WA), s 5C(3)(a). This is, of course, the factual issue the subject of the next section of these reasons.

16. Whether Mr Chester's ongoing left shoulder pain was caused by a failure to proceed with early reduction surgery, however, was not to be determined by reference to what preference would have been expressed by an orthopaedic surgeon prior to the decision whether to undertake early surgery. It was a matter to be determined by reference to what would have been the outcome of that surgery had it been undertaken.

17. In our respectful view, the learned trial judge's focus, at Primary reasons [68] to [82], on the 'preferred treatment' tended to divert attention away from the critical issue as to whether Mr Chester (as opposed to patients generally) would have had a better outcome with earlier surgery. His Honour, for example, did not directly address Mr Slinger's evidence that early surgery for Mr Chester, was 'more likely to have been associated with a more favourable outcome and a better functional result'[91] and that he 'would have a better result'.[92] It is not clear from the Primary reasons whether his Honour rejected that evidence or whether his Honour concluded that the absence of a 'preferred treatment' was a sufficient basis to conclude that Mr Chester failed to prove that he would have had a better outcome with earlier surgery.

    [91] See [45] above.

    [92] See [52] above.

1. It was, of course, open to the learned trial judge to reject the evidence of Mr Slinger in this regard. It was open to his Honour, for example, to prefer the evidence of Mr Alexeeff, who took a contrary view (albeit that that view was expressed as to the outcomes of surgery generally, rather than specific to Mr Chester). However, if that was the basis upon which his Honour concluded that Mr Slinger's evidence that Mr Chester would have had a better outcome was not persuasive, it was necessary for his Honour, first, to say so, and second, to set out his reasons for preferring Mr Alexeeff's evidence.

2. To simply refer to the fact of their competing views as to the likely success of early treatment generally, and state that it was 'not persuasive' did not in the circumstances of this case sufficiently reveal the intellectual process by which the learned trial judge reached that conclusion.

3. This failure, in our respectful view, is even more evident in relation to the second of the ways in which Mr Chester presented his case as to the likely outcome of early surgery: namely, the effect of the excision of the distal end of the clavicle in the surgery performed by Mr Openshaw.

4. As we have observed above, Professor Skirving's evidence as to the effect of the excision of the distal end of the clavicle was evidence as to a specific physiological cause of Mr Chester's residual condition that was a consequence of his not having had earlier reduction surgery. That evidence was not peripheral to Mr Chester's case at trial. It was the subject of Professor Skirving's expert reports, his evidence in chief, cross-examination and re-examination. Mr Alexeeff, who strongly disagreed with Professor Skirving and Mr Slinger in this respect, was expressly directed to, and asked to comment upon, their evidence in that regard.[93]

   [93] Trial ts 376 ‑ 380, 392.

5. The significance of the disagreement between experts in this regard is also apparent from the parties' closing submissions. Counsel for Mr Chester squarely put Mr Chester's case in closing on the basis that it was not simply delay simpliciter but that the early reduction surgery would not have required excision of the distal end of the clavicle and that 'what we have is a continuing degree of symptomology resulting from the excision of the distal end of the clavicle'.[94] Counsel for the Hospital went so far in closing as to submit that 'the plaintiff's case is the excision of the clavicle is the cause of all of his problems',[95] and identified the basis upon which he submitted Mr Alexeeff's contrary opinion should be accepted.[96]

   [94] Trial ts 439 ‑ 440.

   [95] Trial ts 417.

   [96] Trial ts 423.

6. The contention that the excision of the distal end of the clavicle was the physical cause of Mr Chester's ongoing pain and restrictions was, in our view, properly characterised as a central element of Mr Chester's case. As the authorities make clear, the learned trial judge was required to engage with that central element of Mr Chester's case and explain why it failed.[97]

   [97] See [93(b)] above.

7. Unfortunately, in our respectful view, the learned trial judge's reasons did not do this. His Honour evidently accepted that if Mr Chester had undergone early reduction surgery, the surgeon would not have been required to excise the distal end of the clavicle.[98] His Honour also referred to Professor Skirving's evidence that 'the excision of the distal end of the clavicle is probably the most likely cause of Mr Chester's pain with bone rubbing on bone' and Mr Alexeeff's disagreement with that evidence.[99]

   [98] See [108] above.

   [99] Primary reasons [85].

8. What his Honour did not do, however, was to engage with that clear disagreement between the expert witnesses in relation to this central element of Mr Chester's case and explain why, if it was the case, he rejected Professor Skirving's opinion as to the cause of his ongoing pain. While it was open to the learned trial judge, having seen and heard the witnesses give evidence, to reject Professor Skirving's evidence on this point or to prefer the evidence of Mr Alexeeff, we cannot conclude, on the basis of the record, that his Honour was bound to do so. Professor Skirving had, for example, examined Mr Chester; whereas Mr Alexeeff had not. Nor, reading the reasons as a whole, can it be concluded that his Honour did reject Professor Skirving's evidence or prefer that of Mr Alexeeff. The position is unexplained.

9. As this court said in Ellis:[100]

   Sometimes, of course, resolving differences in expert evidence will pose particular difficulties. … Nevertheless, a trial judge's task is 'to endeavour to reconcile and grapple with the competing views as best' as he or she can in the circumstances. In so doing a trial judge should not be timorous in using his or her full advantage in seeing and hearing the expert witnesses to resolve their competing views where there is no other way of doing so. Not only must an appeal court give respect to the advantage of the trial judge; the effective discharge of the appeal court's function will often depend upon it. (citations omitted)

   [100] Ellis [396] (Quinlan CJ, Mitchell & Beech JJA).

10. In the present case, it was necessary for the learned trial judge to reach a finding as to whose evidence he preferred in relation to the effect of the excision of the distal end of Mr Chester's clavicle in order to reveal to this court the intellectual process that led to his Honour's conclusion: that the evidence called by Mr Chester was not persuasive of a finding that his ongoing left shoulder pain was caused by a failure to proceed with early reduction surgery. The failure to do so, in our view, amounted to appellable error.

Whether the judge found, and if so gave adequate reasons for finding, that Mr Chester failed to prove that he would have undergone early reduction surgery

1. The learned trial judge's finding at Primary reasons [126] that 'the matters set out at [91] - [118] above, both individually and collectively, preclude a finding in Mr Chester's favour' is, in a number of respects, not easy to understand.

2. As we have noted above, and as the Hospital accepted at the hearing of the appeal, many of the matters set out at [91] to [118] of the Primary reasons do appear to be directed at the question of whether Mr Chester would have had earlier surgery. Nevertheless, some of those matters are reasonably understood as addressed to issues of causation more generally.

3. Paragraphs [106] to [114] of the Primary reasons, for example, deal with the 'complicating' effect of a motor vehicle accident in which Mr Chester was involved on 20 November 2011. The potential effect of that accident was clearly irrelevant to the question whether Mr Chester would have had early reduction surgery in August or September 2009. Indeed, as a matter of logic, that accident could only have been relevant to an argument to the effect that, if Mr Chester had undergone successful reduction surgery, he would in any event have suffered from the ongoing shoulder pain and discomfort of which he complained. His Honour, however, did not make a finding to that effect and indeed observed that the consequences of the motor vehicle crash had never been investigated.

4. Similarly, it is difficult to see the relevance of Mr Chester's failure to properly immobilise his left shoulder (Primary reasons [115] to [118]). While his Honour postulated that this may have been a contributing cause of the failure of conservative treatment, as his Honour made clear, the issue was not addressed or pursued at trial. Accordingly, his Honour made no finding in that regard. Moreover, having regard to the case that his Honour was addressing, the explanation for why the conservative treatment of Mr Chester's injury was unsuccessful was irrelevant to the issues of causation. That is because the counterfactual that his Honour had to consider was one in which Mr Chester would not have had conservative treatment but would have had early reduction surgery instead.

5. The matters set out at Primary reasons [106] to [118] did not, therefore, relate to the question whether, if Mr Chester had been referred to an orthopaedic surgeon, he would have undergone early reduction surgery.

6. That leaves the matters set out in [91] to [105] of the Primary reasons. Those matters, most of which do appear directed to the question of whether Mr Chester would have undergone early reduction surgery, were not, however, findings. They were expressly described by his Honour as 'matters not in evidence'. In that context, most of those paragraphs are the expression by his Honour of possibilities which, in a number of respects, simply restated the question that his Honour was required to address.

7. Paragraph [100] of the Primary reasons, for example, comes closest to addressing the critical issue of fact as to what Mr Chester would have done if given the option of early surgery. In that paragraph his Honour said that 'it cannot be assumed that, if … offered the reduction surgery, [Mr Chester] would have accepted it' and that, having regard to a number of matters there identified, 'he may not have been persuaded, at that time, to undertake the risk of surgery on borrowed funds'. Both those statements are, of course, correct, as far as they go. But they are not findings. Indeed they are, in essence, a restatement of the very question that his Honour was required to determine.

8. In that context, it is to be recalled that the hypothetical question as to what the plaintiff 'would have done' if the tortfeasor had not been at fault, is always a matter of inference that is to be determined based on evidence that is necessarily limited. That is because, first, the question is a hypothetical one; it requires a finding as to a past that might have, but did not, occur. Secondly, it is a question in relation to which the evidence of the plaintiff, as to what he or she would have done, is inadmissible.[101]

   [101] Civil Liability Act 2002 (WA), s 5C(3)(b).

9. It may be that, in a particular case, the evidence in relation to the likely decision making process involved in that hypothetical question is more or less 'rich' in its detail. There may, for example, be a great deal of evidence, in a particular case, in relation to the plaintiff's past decision making, as to their attitude to treatment and the other circumstances likely to affect their choices. In other cases, there may be little to go on.

10. Nevertheless, whatever the evidence in a particular case, it is necessary to make a finding as to the question. In the present case, for example, it was not sufficient, in our respectful view, for the learned trial judge to observe that 'it cannot be assumed' that Mr Chester would have accepted early reduction surgery. It was necessary for his Honour to reach a finding on the evidence as to that issue, one way or the other, having regard to the onus and standard of proof.

11. In the present case, the Hospital submitted that it was open to infer from the learned trial judge's conclusion that 'the matters set out at [91] ‑ [118] above, both individually and collectively, preclude a finding in Mr Chester's favour' that his Honour found that Mr Chester had not established, on the balance of probabilities, that he would have chosen early reduction surgery.[102]

    [102] Appeal ts 48 ‑ 49.

12. It is difficult, however, to draw that inference based on the manner in which the learned trial judge's conclusion is expressed. His Honour concluded, for example, that the matters set out at [91] to [118] of the Primary reasons individually precluded a finding in Mr Chester's favour. With respect to the learned trial judge, that could not possibly be correct. It is difficult to see that, logically, any of the individual matters referred to in those paragraphs could, taken alone, lead to the conclusion that that the failure to refer Mr Chester to an orthopaedic surgeon did not cause his ongoing pain and restrictions.

13. The fact that, for example, 'it was not known to whom [a] referral' could or would have been made' in mid-August/Early September 2009,[103] while potentially relevant to the question as to what Mr Chester would have done if referred, does not, itself, preclude a finding in Mr Chester's favour. The same could be said of the other matters set out at [91] to [118] of the Primary reasons. While those paragraphs identify matters that are relevant to the question as to what Mr Chester would have done, they could not, each individually, preclude an inference being drawn that he would likely have undergone early surgery.

    [103] Primary reasons [92].

14. Nor is it clear from the learned trial judge's conclusion that the matters set out at [91] to [118] collectively precluded a finding in Mr Chester's favour, as his Honour found, that Mr Chester had not established, on the balance of probabilities, that he would have chosen early reduction surgery. Some of the matters within those paragraphs are concerned with whether, had Mr Chester undergone surgery, he would have had a better result.[104] Bearing that in mind, and reading [126] in its context following [123] to [125], the learned trial judge's conclusion in [126] would appear to be directed to the overall and ultimate question of causation, rather than to the more specific question of whether Mr Chester would have undergone early surgery.

    [104] See primary reasons [102] ‑ [104].

1. More significantly and in any event, if his Honour is taken to have implicitly made a finding that Mr Chester would not have undergone early surgery, the Primary reasons do not reveal the intellectual process by which that result was reached.

2. Again, at the risk of repetition, central to Mr Chester's case was that he was deprived of the opportunity to undergo early reduction surgery and that, if he had been given that opportunity, he would have chosen to undergo such treatment. It was necessary for the learned trial judge to engage with that case. If Mr Chester's case was to fail because he failed to prove that he would have done so, it was necessary to explain why that was so. It was not, in our view, sufficient to identify matters that may or might prevent such a finding without reaching an ultimate conclusion to that effect.

3. In that regard, while the learned trial judge identified a number of matters weighing against a decision to undertake early surgery, there was also evidence tending in the other direction. There was evidence for example, that Mr Chester was keen to undertake surgery once it became an option for him, as reflected in the fact that he borrowed funds to bring that surgery forward. Similarly, there was evidence from Mr Chester as to the importance of his shoulder function in his work as a plasterer.[105] There was also evidence from Mr Slinger as to the far greater speed within which reduction surgery could be undertaken when compared with reconstruction surgery.[106]

   [105] Trial ts 70.

   [106] See [51] above.

4. Of course, these matters did not necessarily compel the conclusion that Mr Chester would have undergone early reduction surgery. Nevertheless, they were matters to be addressed in light of all of the evidence as to whether Mr Chester would have done so.

5. In all of the circumstances, in our view, the 'rolled up finding' (as counsel for the Hospital properly described it)[107] at Primary reasons [126], did not adequately explain whether his Honour reached a conclusion as to Mr Chester's case in this regard and, if so, what the intellectual process was that led to that conclusion. That failure amounted to appellable error.

Whether the only conclusion open on the evidence available at trial was the conclusion reached by the learned trial judge

[107] Appeal ts 77.

1. It will be apparent from our conclusions above, that, in our view, this is not a case in which the only conclusion open on the evidence available at trial was that Mr Chester's claim must fail. Our reasons for that conclusion can be briefly summarised.

2. Whether, if Mr Chester had been referred to an orthopaedic surgeon, he would have undergone early reduction surgery and whether, following such surgery, he would have been in a better position, were both issues in relation to which there was competing evidence.

3. In relation to the first of those issues, while direct evidence from Mr Chester as to what he would have done would be inadmissible, resolution of that issue nevertheless requires an inference as to what Mr Chester (and not merely a reasonable person) would have done.[108] That inference would need to be based not only on the objective facts but also on the court's assessment of the general character and personality of Mr Chester.[109] As counsel for the appellant submitted at the hearing of the appeal:[110]

   [i]n all reality, you would need to look the plaintiff square in the eyes and make a determination about what kind of person he is and what kind of risk profile he would have.

   [108] Civil Liability Act 2002 (WA), s 5C(3)(a); Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434  (Rosenberg v Percival) [24] (McHugh J).

   [109] Rosenberg v Percival [25] (McHugh J).

   [110] Appeal ts 38.

4. In our view, that is not a matter in relation to which this court could confidently find against Mr Chester based on the record alone. It is an issue in relation to which the natural advantages of a trial judge must be brought to bear.

5. Similarly, in relation to whether Mr Chester's ongoing shoulder pain and restrictions would have been avoided by early surgery there was, particularly in relation to the effect of the excision of the distal end of his clavicle, a stark contrast on the evidence before the learned trial judge. It is not a matter in relation to which this court could reach a finding without having seen and heard from all of the expert witnesses.

6. There is another reason why, in all of the circumstances, a new trial is required. As the Hospital submitted in its written submissions, the learned trial judge did not discuss the principles of duty of care or breach of duty and did not expressly find that the Hospital breached a duty of care owed to Mr Chester.[111]

   [111] Respondents Submissions [38] (WAB 30).

7. As we said at the commencement of these reasons, it is necessary to identify a particular negligent act or omission on the part of a defendant, in order to properly address the question of causation. While most of what we have dealt with in these reasons is based on an assumed breach of duty (namely that the Hospital was negligent in not referring Mr Chester for orthopaedic review) there is, as yet, no finding in that regard. That is also properly a matter for a trial judge.

Conclusion

1. For the above reasons, the appeal must be allowed and a retrial ordered. An order for a retrial must always be an occasion for regret; perhaps more so in a case such as this, where the relevant events were many years ago. Nothing in that order, however, prevents the parties from reaching their own resolution of the matter, without the added financial and other costs of a retrial.

2. We would hear the parties as to the final orders, including as to the costs of the appeal.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

LH

Principal Associate to the Honourable Chief Justice Quinlan

2 JUNE 2022