Dean v Pope

[2023] HCATrans 88

[2023] HCATrans 088

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S6 of 2023

B e t w e e n -

PAUL DEAN

Applicant

and

DR RAOUL POPE

Respondent

Application for special leave to appeal

KIEFEL CJ
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 JUNE 2023, AT 10.13 AM

Copyright in the High Court of Australia

MR S.E.J. PRINCE, SC:   If the Court pleases, your Honours, I appear with my learned friends MR A.D. CAMPBELL and MS T-H. LIM on behalf of the applicant.  (instructed by Gerard Malouf & Partners)

MR R.J. CHENEY, SC:   May it please the Court, I appear with my learned friend MS A.R. QUINLIVAN for the respondent.  (instructed by Barry Nilsson Lawyers)

KIEFEL CJ:   Yes, Mr Prince.

MR PRINCE:   Thank you, your Honour.

KIEFEL CJ:   You will require an extension of time, I think.

MR PRINCE:   I do, your Honour.

KIEFEL CJ:   Is that opposed?

MR CHENEY:   No, your Honour.

KIEFEL CJ:   Yes, the extension is granted.

MR PRINCE: Thank you, your Honour. The special leave issue that arises in this case is a question of the construction of section 5O of the Civil Liability Act (NSW). That section has cognate provisions in other places of legislation elsewhere in Australia. The section arises in Part 1A of Division 6 of the Act and it acts as a defence provision for a person who is practicing a profession and provides that that person:

does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

The division in views about what that section means in a number of decisions of the Court of Appeal and a number of various judgments essentially boils down to this:  is that a re-enactment of Bolam and a reintroduction of a provision that allows doctors to give conclusive and declaratory evidence that they would have done the same thing in the circumstances, and that a number of their peers would have, such as to act as a defence, or does it require something more than that?  That is, the establishment of a manner of acting that was the subject of widespread acceptance in Australia prior to the events taking place.

KIEFEL CJ:   Is part of your argument quantitative in the sense that you say that it is insufficient for the expert to say what that person would have done or what few people may have done, but it has to be evidence of a much more widespread practice?

MR PRINCE:   It is a bit more fundamental than that, your Honour, because the “would have” is the problem.  So, somebody coming in and saying, I would have done what this doctor did, is starting to focus in the wrong place.  It is starting to focus on what the doctor actually did in the circumstances and then trying to say whether or not that is something that other doctors would have done.

KIEFEL CJ:   It just means, put in the same situation, I would have done the same thing.

MR PRINCE:   Yes.  In my respectful submission, the approach requires more than that – this section requires more than that because it requires the identification of a manner of acting.  So, it is not focused on whether the doctor was negligent in the circumstances – that takes it more to a pure declaratory type of Bolam way of looking at it. What it does is it allows for circumstances to arise where some manner of acting that has widespread acceptance – and, importantly, can be subject of debate within the profession, because the other provisions of section 5O are also helpful in construing what it means. If your Honours go to 5O(3), for example:

The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more . . . of those opinions being relied on for the purposes of this section.

So, what that points to, in my respectful submission, is a pre‑existing school of thought.  It does not have to be a particular device, or that type of matter, but there needs to be an identifiable school of thought – which may not be universally accepted, but which is the subject of widespread acceptance.  It cannot be the subject of widespread acceptance in Australia if it is not capable of articulation.

STEWARD J:   But you could have differing peer professional opinions on a “would have” test. 

MR PRINCE:   You can, but they are not focusing on the pre‑existence of the manner of acting which is the subject of acceptance.  So, for the defence to be made good, you have to prove what the manner of acting that is widely accepted in Australia is.  I mean, you compare that with what the doctor did in this case, and you say, did the doctor fall within that manner of acting.

STEWARD J:   What does that mean, then, for novel or new procedures?

MR PRINCE:   They can still be covered because you could have a very recent article in The Lancet, for example, that says when you are presented with a particular symptomology, this is a course that will work and these doctors have signed up to it and said, we think this is a good way of dealing with this particular problem.  That does not stop – and you do not need the universal acceptance of that.  It could be that that is an outlier.  There is plenty of academic criticism of that approach and maybe five or 10 per cent of the profession subscribe to it and the rest think ‑ ‑ ‑

STEWARD J:   What about a unique or novel procedure that may not make it to The Lancet?  Is it just not seen at all?  It might be seen for the first time.

MR PRINCE:   Well, this is the notion of widespread acceptance.  That is, you cannot have widespread acceptance if people have not turned their minds to it before the event occurs.  If it is really just a question of trying to reintroduce, effectively, a jury system of doctors where they can come along and say, well, I would have done the same thing, that is just not what the language in the Act says.  That was a very different position under Bolam, which was not followed in this Court in Whitaker. 

STEWARD J:   You will have all the problems of expert witnesses on your interpretation as well, calling doctors who will all say what in their opinion was widely accepted.

MR PRINCE:   But you have something to fix too, your Honour.  Take, for example, the case of Gould, which was referred to, I think, in our list.  In the case of Gould, there was an issue about when to give antibiotics and there is – as your Honours might have known, if your Honours have had a cold – a school of thought that one should get antibiotics as a last resort because there are issues of superbugs developing, and so on.  There was a school of thought in that case about a particularly appropriate time to administer antibiotics, and it could be identified, and there were guidelines about it, and there were publications about it and there was debate about it.  That is what falls into 5O.

STEWARD J:   So, are you really saying 5O is where – it is not sufficient to call a doctor to give evidence, that was widely accepted, but proof – even lay proof, by the tendering of articles in The Lancet and so forth – of what is widely accepted.  Is that what you are saying it is directed to?

MR PRINCE:   I think the doctor could come and say this is widely accepted, but he has to say why he says that.  He or she has to explain why it is that he or she says there is a school of thought out there, and I would have adopted it; many others would not, but I would have.  But to do that, you have to be able to articulate it.  That is a wholly different exercise to coming along and saying, well, I am looking at everything that was done here in the surgery, and it looks all right to me; I would have done it like that.  That is what the evidence became in this case.

In fact, that is the type of evidence that Justice Basten had a problem with in Sparks.  The President Justice Ward in the Court of Appeal relied on both Justice Basten and Justice Simpson from Sparks to accept that these declaratory statements by an expert about what they would have done are enough.  But, in my respectful submission, paragraph 88 – which I have referred to in our outline – of Justice Basten says a mere declaration is not enough.  It has to be established as to what this manner of acting is, which is the subject of widespread acceptance.

STEWARD J:   What do you say about the proposition that the respondent makes, which is that the Court of Appeal held it was not necessary to determine the controversy about statutory construction, given the finding that no negligence had been made out?

MR PRINCE:   Well, they did say that, but that is, on our submission, not what was actually done, because there was an adoption of the approach that a mere declaratory would be enough.  It had to be, because that is all there was in this case.

KIEFEL CJ:   But, does President Ward – at special leave book pages 161 through to 163, commencing at paragraph 151 – not say that the plaintiff’s case “fails on causation”?

MR PRINCE:   Her Honour did that.  Your Honour will see grounds ‑ ‑ ‑

KIEFEL CJ: And then – sorry, just to complete it – at paragraph 160, it goes on to the section 5O defence and says that:

in light of the conclusion above, this issue does not strictly –

arise.

MR PRINCE: Yes. The difficulty with that analysis by her Honour is that the approach to section 5O, which allows for the acceptance of these declaratory statements by doctors for the respondent, infects then the approach to 5B, because ‑ ‑ ‑

KIEFEL CJ: That is not the way in which her Honour approached it. In any event, section 5O applies where otherwise liability for negligence has risen, does it not?

MR PRINCE:   Yes, it is a defence.

KIEFEL CJ:   It is an excuse – it is an excusal provision operating.

MR PRINCE:   Yes, that is right.  Precisely.  And that is why it is cast as a defence.  So, really, the ‑ ‑ ‑

KIEFEL CJ:   So, fundamentally, you have to show that otherwise there would have been liability.

MR PRINCE:   That is why grounds 2 and 3 are in our appeal.  That is, we say that ‑ ‑ ‑

KIEFEL CJ:   Ground 3 actually deals with causation.

MR PRINCE:   Or causation, I should say.  Yes, of course.  That is why ground 2 is there, because there ends up becoming a confirmational bias in the approach of starting with 5O first.  If you look at 5O first and you accept the anti‑McKenna line of a declaration by a doctor that he would have done the same thing is enough to dispense with the standard of care – and as Justice Basten said in Sparks, there can only be one standard of care – by starting on that approach and by looking at that evidence which is put in that way, it then means that you are already home on rejected negligence.  This is the problem with not stepping out the provisions of the Act in the way that ought to have been done, because if you start with 5B – and particularly 5B(2) – what you need to look at is what precautions could have been taken that were not taken.

Here, that would be sending the patient to a neurologist.  When that was ultimately done down the track, they found that, in fact, the symptomology was being caused by a lesion on the thoracic spine, not on the back.  So, that precaution was a simple precaution that could have easily been taken.  The patient waited nine months for surgery anyway; there were abnormalities seen on the scan; but the focus of the inquiry under 5O and by accepting Professor Sheridan’s evidence is all about whether the surgery is justified, not about whether adequate precautions were taken, and then once that framework is dealt with, then working out whether there is some pre‑existing manner of acting which excuses the failure to take the precautions – for example, administering antibiotics.

Obviously, antibiotics could easily be administered, but if there is a practice or a – I should not use the word “practice”, I said that led to

confusion – if there is a manner of acting within the profession that says, do not administer antibiotics at this stage, then that will excuse that.  Here, the situation was reversed and the focus has all been:  was the surgery justified?

STEWARD J:   We will not get to the issue of construction on your case, unless we find in your favour on grounds 2 or 3, or maybe both.  You have conceded, then, on issues of public importance.  Why is this an appropriate vehicle?

MR PRINCE:   Because to deal with grounds 2 and 3, as I have said – perhaps inelegantly – you do need to grapple with the way that the court approached 5O and the ability to accept a mere declaration by a doctor that he would have done the same thing in the circumstances.  That then engages the Act, and then that flows through to everything else.  That, in my respectful submission, makes this an appropriate vehicle.

In fact, it is the reverse of the situation in Sparks, because in Sparks it was found that Justice Basten dealt with the McKenna point – we say correctly; we think Justice Basten’s approach is the correct approach to the statute – but he would have rejected the case anyway on the basis that the medical evidence that the defendant was relying on in that case did not come up to match.  Here, we say that the medical evidence that was ultimately used to dismiss our case did not come up to scratch; it was in that pure declaratory nature, and it needs examination.

Unless there is anything further I can assist your Honours with.

KIEFEL CJ:   Yes, thank you.  We will hear from the respondent.

MR CHENEY: Your Honours, we made the point in our written response that the challenge to 5O – or the 5O reasoning below – does not create a suitable vehicle here because, in our submission, the decision below was bringing clarity to the proper instruction of section 5O. It does not turn on the court’s findings about that provision but, as your Honour put to my learned friend, the appeal below is dismissed because of findings that there was no negligence. Your Honours see those, the process of reasoning of the respective judges below on that point. Firstly, in the President’s judgment at paragraph 160, which is page 163 of the application book – where her Honour, the President said:

in light of the conclusion above –

that is, the conclusion as to be there being no breach of duty and no causation, the 5O issue does not strictly arise to be determined.  Her Honour reiterated that at paragraph 230.

The other judges, likewise, said of the 5O question that it does not arise for determination here, albeit that each of them, with the exception of Justice Meagher, volunteered some observations about its proper instruction. That is seen at, for example, at Justice McFarlan’s judgment at 254, page 182 of the application book; similarly, at paragraph 260 of Justice White’s judgment; and lastly, at paragraph 273, Justice Brereton’s judgment, where his Honour observed that – as her Honour the President demonstrates – the appeal can be decided without determining the questions pertaining to the defence under section 5O.

Your Honours, our short point is this.  Although the members of the New South Wales Court of Appeal addressed the question of the proper construction of 5O and did so in a manner that provided the clarity that Dr Pope sought when we notified the Registrar of the Court of Appeal that, in responding to the appeal, he would be challenging the correctness of the McKenna decision – as a result of which the court below sat five justices of appeal.  The appeal below was dismissed because all members of the court held that negligence was not established.  So, howsoever the special leave application question or special leave question as framed here might be answered, it would not be dispositive of the proceedings.

STEWARD J:   Well, we just would not get to the defence.  Is that what you are saying?

MR CHENEY:   Yes, that is so, your Honour.  Yes.  The second feature, in my submission, that points to this not being an appropriate vehicle is the fact that the propounded appeal grounds are themselves not – or, at least, raise no direct challenge to the negligence finding.  Appeal ground 2, which is seen at page 203 of the application book, does not get the applicant there, because it impugns only a single aspect of the finding below as to why lumbar surgery was indicated.  It does not amount to and attack upon the findings that Dr Pope was not in breach of duty, and that there were other indicia that justified his decision to opt for lumbar surgery.  Could I supply just some short matters of context ‑ ‑ ‑

STEWARD J:   While all of that is true, the reality, of course, is nonetheless the Court of Appeal did say things of importance about the operation of the provision.  What do you say about your opponent’s submission that, really, there is an attempt to reintroduce the Bolam test here, and that is really not 5O(1) was directed at?  What is your answer to that?

MR CHENEY: The answer is, with respect, there is no such attempt. It is accepted that section 5O purports to be a modified version of the Bolam test, and it has been construed – correctly, in my submission – in Sparks and later in the decision in Gould, because it appears in the Civil Liability Act under the heading “standard of care.” It is said of the provision that evidence that is directed to the section 5O question, if accepted by the court, establishes the standard of care, obviating the need to consider the separate section 5B questions of duty.

We have extracted in our response, at page 230 of the application book, an extract of a judgment of his Honour Justice Leeming in South West Sydney Local Health District v Gould where – if your Honours go to paragraph 18 of our response, Justice Leeming picked up something that had been said earlier in Sparks and said, in discussing why, where section 5O is invoked by the professional, there cannot be an antecedent enquiry into breach by reference to section 5B – his Honour pointed to the fact that to do otherwise would subject the medico to two different standards, one applying the Rogers v Whitaker and Naxakis standard, only then to then have to turn to 5O and consider what his contemporaries, what his or her peers, said about competent professional practice.

STEWARD J:   You do not contend that 5O is unique to New South Wales, you accept it has analogues in other States?

MR CHENEY:   Yes, your Honour, we accept that.  But the short point is that where 5O is pleaded – and the decisions in Gould and in Sparks make plain – the proper approach is to first deal with it.  That is, consider whether the evidence of the contemporaries, of the peers, establishes a standard of care.  You do not then engage in a Rogers v Whitaker analysis in which the Court substitutes its own views at to what the standard of care should be. That is the very purpose of section 5O, and that is why it is an attempt to reintroduce a modified Bolam standard.

STEWARD J:   The reasons of the President, on one view, differ slightly from the reasons or the approach of Justice Brereton.  Although, I think, in your response you think they are not inconsistent.  Is that right?

MR CHENEY:   That is so, your Honour.

STEWARD J:   But do you pitch for one over the other?

MR CHENEY:   We do, with respect, embrace Justice Brereton’s analysis.  But, to the extent that there is any divergence of views about the proper application, we say that the headnote to the Court of Appeal’s judgment collects, accurately, the positions of the judges on that question.  So, if your Honours go to ‑ ‑ ‑

STEWARD J:   Page 127?

MR CHENEY:   Yes, your Honours, yes.  It is paragraph (1) of the headnote.  What is consistent about the approaches is that all of the – firstly, all of the judges, including Justice Macfarlan – the author of the original practice point in the McKenna decision – accepted that his Honour had put the matter too highly in McKenna. His Honour Justice Macfarlan himself said that, on reflection, it is not correct to require of a medico that he or she demonstrate that there was a practice – an identifiable practice – in play at the time that the services were provided. The relevant inquiry under section 5O is whether the medico – or such other professional, as is the defendant – acted in a manner that would be regarded by professional peers as competent professional practice.

This decision – the reason we say this decision resolves the uncertainty about that topic is because after McKenna – when we brought the McKenna matter to this Court, and we took the point about section 5O in this Court – this Court decided McKenna on the basis of the duty question only and it was unnecessary to decide section 5O. That left this uncertainty in New South Wales, at least, as to whether what Justice Macfarlan and the President had said in McKenna about the practice point remained binding.

In subsequent decisions – including in Sparks v Hobson, Justice Simpson took the view that, although she did not agree with the practice point, she felt bound to apply it, with the result that the anaesthetist in Sparks v Hobson was found not to be able to have the benefit of section 5O. But the reason we say this decision under challenge here gives the clarity that we were seeking when we asked for the Court to sit five Judges, is that it is now clear that there are no – that it is not necessary for the professional to demonstrate that there was an extant practice in place at the time of the impugned conduct. The only inquiry, really, is whether the professional acted in a manner that his or her peers would regard as competent professional practice.

Your Honours, there are some rather important matters of context which we say betray, with respect, the weakness of this entire proposed appeal.  The applicant’s case at trial was that Dr Pope negligently subjected him to lumbar surgery and should have suspected a thoracic cause for his presenting symptoms.  One short point about that is that all of the medical experts, both medico-legal and treating neurosurgeons and neurologists and physicians were, with one exception, all supportive of Dr Pope’s decision.

The only exception, the only medico who impugned that decision to perform the lumbar surgery was the applicant’s medico-legal expert, Professor Davis, who said he would have managed the patient differently.  It was never explained by him, in his evidence, what “differently” would have involved, despite some faint evidence from him that he potentially would have referred the patient to some other specialist before surgery.

But importantly, in the course of cross-examination, when addressing whether Dr Pope should have suspected a thoracic cause, Associate Professor Davis volunteered in his oral evidence that “usually”, was his words, neurosurgeons dealing with a patient presenting with the applicant’s symptoms would do as Dr Pope did here and opt for lumbar surgery.  That evidence is summarised in paragraph 69 of the decision below at page 144 where her Honour the President observed that:

Professor Davis, asked if it was a rare occurrence for people with thoracic lesions to experience sciatica like symptoms . . . said that it was indeed a rare occurrence and that usually the patients he had seen had undergone lumbar surgery in a similar pattern to the present case and later the thoracic tumour was identified.

This entire case against Dr Pope was brought in the teeth of that lived experience of Professor Davis.  The third important matter of context in evaluating the reasonableness of Dr Pope’s decision and his suspicion of a lumbar cause and his failure, if it be that, to suspect a possible thoracic cause, was the evidence of the applicant himself to the effect that he, the applicant, did not tell Dr Pope of any symptoms indicative of there being thoracic pathology, despite Dr Pope asking him questions about his symptoms.  The applicant admitted in cross-examination that he did not tell Dr Pope that he had been experiencing sensory symptoms from his navel to his nipple – symptoms that might have put Dr Pope on the search for a different cause.  That aspect of the evidence is cited at paragraph 137 of the judgement at page 158.

Another important matter of context is that Professor Davis, although volunteering that he, Professor Davis, would have managed the patient differently, did not at any point either in his written reports or in his oral evidence or in the concurrent evidence session that produced a joint report between him and his counterpart, Associate Professor Sheridan, he did not at any point traverse Professor Sheridan’s evidence that peer professional opinion would be supportive of what Dr Pope did.  Professor Sheridan described what Dr Pope did here as, quote:

bread and butter neurosurgery –

The very sort of neurosurgery that neurosurgeons perform every day with patients presenting as did this patient.  There was no traverse of that by Professor Davis.  The highest his evidence got was, because he has had experience of thoracic symptoms causing this sort of condition, that he would have suspected a thoracic cause, or at least pursued further investigation.

Your Honours, the other aspect of this is that the whole application is premised on the proposition that it was wrong of the trial judge and of the Court of Appeal to find that Dr Pope construed a pre‑operative MRI scan as showing that there was compression in the lumbar spine.  It is said in ground 2 that this was contrary to the evidence.  We say that this betrays a continued misreading by the applicant of the evidence about the issue.  It is an important error because, as her Honour the President recorded at paragraph 2 of the judgement, it was:

conceded during the course of argument that if there was a proper basis for the respondent to form the view that there was a compression . . . then the appellant’s claim would probably fail –

There was a raft of evidence about this but the most compelling, in my submission, was the fact that on the same day as his consultation – his last pre‑operative consultation with the plaintiff, 12 November 2013 – Dr Pope wrote to the GP recording that the disc herniation that was seen on the MRI was described in the radiologist’s report as involving no compression, but making it clear that he – Dr Pope – begged to differ about that construction of the film.

As the court below found, the only proper construction of the letter – which is extracted at page 133 of the application book – is that Dr Pope had looked at the MRI and had concluded that there was compression that warranted – at least that accorded with the clinical signs that he had detected, and that supported the decision to perform the lumbar surgery.  Contrary to the central premise to this entire challenge, the aspect of the radiology report that Dr Pope was differing with is the conclusion that is italicised in paragraph 12 of the judgment below, that:

There is no nerve root impingement.

I am sorry, your Honours, I missed the light.  I note the time.

KIEFEL CJ:   You have a yellow light.  Is there something you wish to finish?

MR CHENEY:   I have not addressed causation, your Honour, but the proposed ground 3 attacks the causation finding.  All of the judges were of the view that causation was not established.  Her Honour the President at page 162 of the application book observed that – after noting that it was a subjective inquiry as to, that is, what the particular defendant neurosurgeon

would have done, accurately describes what the burden that the applicant has here, when her Honour said:

in order for the appellant to demonstrate that the inadequate pre‑operative assessment caused the unnecessary surgery, he must demonstrate that the surgery would not have occurred (at the appellant’s direction, or the respondent’s direction) were it not for the allegedly negligent pre‑operative assessment and the conclusion by the respondent that there was a lumbar cause of the appellant’s sensory symptoms.

Your Honours, that is a topic that is what would have been discovered had there been further pre‑operative assessment by Dr Pope, whatever that may entail, there was no evidence adduced as to what would have been found by that further pre‑operative assessment.  The discovery of the thoracic tumour was two years after the lumbar surgery and it was discovered by a neurologist in circumstances where the plaintiff gave a better account of his symptoms to that neurologist than he had given to Dr Pope.

May it please the Court.

KIEFEL CJ:   Yes, thank you.  Do you have anything in reply?

MR PRINCE:   Yes, thank you, your Honour.  Your Honours, my learned friend’s submissions demonstrate how bound up the approach to 5O is with the question of determination of negligence.  The way in which my learned friend suggests the matter should be approached – relying on Justice Leeming in Gould – is exactly to start with section 5O. That puts 5O and the way it works at the centre of the inquiry.

That plainly then flows through to what standard is to be, on the current state of authority, what standard is to be drawn into section 5B. So, if this is not a case where the correct interpretation of section 5O can be severed from some independent and separate free‑standing determination on the question of negligence under 5B, in my respectful submission, it is all bound up.

Can I just give your Honours a reference to paragraph 156 of the decision of the Court of Appeal, at page 163 of the application book?  There is a false binary creeping into my friend’s submissions that either the doctor should have either been reasonable to operate and it was not unreasonable for him to fail to find the thoracic cause at that time.  But the case was much more nuanced than that, as you can see from paragraph 156, because the plaintiff said that once the MRI scans came back and Dr Fung said they did not show any nerve root compression, the doctor should:

have performed a more comprehensive assessment –

and the particularisation in the statement of claim included referral to a neurologist.  My learned friend says that happened two years later, and it was not discovered until then, but as soon as my client was referred to a neurologist the cause was found.

There is a problem with the – to the man with a hammer, the world is a nail, and where the doctor did not get the MRI results that he was expecting, and he accepted in evidence, as you have seen from our written submissions, he accepted Dr Fung’s interpretation of the MRI scans.  What he begged to differ about was that they did not accord with his clinical observations and his clinical conclusions, which, in fact, he had reached before he even sent my client for an MRI, and that is dealt with in our written submissions, so I will not traverse it here, but we do not accept the characterisation that my friend has just tried to place on that.  Then, in terms of the ‑ ‑ ‑

STEWARD J:   Does that mean we have to have a dispute about what was meant at the passage that is quoted above paragraph 14 in the Court of Appeal?

MR PRINCE:   I am sorry, your Honour, I missed that.

STEWARD J:   The passage that is quoted above paragraph 14 in the Court of Appeal, are we going to have a debate about what Dr Pope meant when he wrote that note?  I think it is Dr Pope who wrote that note, the “beg to differ.”

MR PRINCE:   He did, Dr Pope wrote that letter.

STEWARD J:   Yes.  Are we going to have a fight about what was meant in that note?

MR PRINCE:   We say that it is a very short fight because, as we have set out, there is transcript which shows that he accepts Dr Fung’s interpretation of the films.  The problem here is that her Honour the President has made a finding that the trial judge did not in fact make, to suggest that Dr Pope had reached his own independent analysis of the films.

But, in my respectful submission, that was not the basis on which the trial judge justified the surgery.  His Honour adopted a different course which was to deal with chemical irritation.  We said that was not open to his Honour.  Her Honour the President accepted that was a red herring, then her Honour has gone to nerve root compression.  But the trial judge never

made a finding that Dr Pope himself had said that the MRI film that Dr Sheridan eventually found supported nerve root compression.

I see the time.

KIEFEL CJ: The question in ground 1 of the proposed appeal concerning section 5O of the Civil Liability Act 2002 (NSW) does not arise unless the finding that there was no negligence, because the plaintiff failed to establish causation, is overturned. That would involve the determination of facts. The proposed appeal is therefore not an appropriate vehicle for the determination of the question. Special leave is refused, with costs.

The Court will now adjourn to 12.30 pm.

AT 10.54 AM THE MATTER WAS CONCLUDED