Dean v Pope

[2022] NSWCA 260

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Dean v Pope [2022] NSWCA 260

Hearing dates:

30 August 2022

Date of orders:

14 December 2022

Decision date:

14 December 2022

Before:

Ward P at [1];
Macfarlan JA at [254];
Meagher JA at [258];
White JA at [259];
Brereton JA at [270]

Decision:

1.   Time for filing the Notice of Appeal be extended until 14 March 2022.

2.   Appeal dismissed.

3.   Cross-appeal be dismissed.

4.   The appellant/cross-respondent to pay the cross-appellant/respondent’s costs of the appeal and cross-appeal.

Catchwords:

NEGLIGENCE — Breach — Standard of care — Professional negligence — Where respondent neurosurgeon performed lumbar surgery on the appellant on the basis that MRI scans showed nerve root compression in the lumbar spine — Where appellant’s lumbar disc herniation caused leakage of the nucleus pulposis and associated irritation — Where appellant suffered from an undiagnosed lesion in the thoracic spine — Whether preoperative diagnostic assessment inadequate — Whether lumbar surgery unnecessary — Whether respondent breached duty of care owed to the appellant — Whether respondent acted in a manner widely supported by peer professional opinion as competent professional practice

NEGLIGENCE — General principles — Professional negligence — Section 5O of the Civil Liability Act 2002 (NSW) — Whether the interpretation of s 5O in McKenna v Hunter and New England Local Health District [2013] NSWCA 476 ought to be overturned

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5D, 5O, 5P, 13

Wrongs Act 1958 (Vic), s 59

Cases Cited:

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15

Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1; [1987] HCA 19

Belknap v Meakes (1989) 64 DLR (4th) 452

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; [1957] 1 WLR 582

Boxell v Peninsula Health [2019] VSC 830

Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336; [1981] HCA 4

Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335

Dunne v National Maternity Hospital [1989] IR 91

Ellis v Wallsend (1989) 17 NSWLR 553

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Frangie v South Western Sydney Local Health District trading as Liverpool Hospital (2019) 29 DCLR(NSW) 346; [2019] NSWDC 42

Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48

Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76

Gover v South Australia (1985) 39 SASR 543

Grinham v Tabro Meats Pty Ltd; Victorian WorkCover Authority v Murray [2012] VSC 491

Heyman v Board of Management of Royal Perth Hospital (1995) 14 SR (WA) 14

Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44

Jones v Braund (No 2) [2020] NSWDC 54

Kaban v Sett [1994] 1 WWR 476

Liprini v McIntyre [2019] NSWSC 355

Lowns v Woods (1996) Aust Tort Reports 81-376

Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12

Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635

McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476

McNamara (McGrath) v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646; [2005] HCA 55

Nationwide News Pty Ltd v Rush (2020) 380 ALR 432; [2020] FCAFC 115

Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9

Old v Miniter [2021] NSWCA 92

Penrith City Council v Parks [2004] NSWCA 201

Ratty v Haringey Health Authority [1994] 5 Med LR 413

Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42

Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58

Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317; [2019] NSWCA 11

Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] 1 QB 493

Smit v Brisbane South Regional Health Authority [2002] QSC 312

South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69

Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29

Sutherland Re; French Caledonia Travel Service Pty Ltd (In Liq) (2003) 59 NSWLR 361; NSWSC 1008

Texts Cited:

D A Ipp (Chairman), Review of the Law of Negligence Report (Ipp Report), 2 October 2002

D Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed, 2018, Thomson Reuters)

R Cross, Precedent in English Law (3rd ed, 1977, Clarendon Press)

Category:

Principal judgment

Parties:

Paul Dean (Appellant)
Raoul Pope (Respondent)

Representation:

Counsel:
S Prince SC with AD Campbell (Appellant)
R Cheney SC with A Quinlivan (Respondent)

Solicitors:
Gerard Malouf & Partners (Appellant)
Meridian Lawyers (Respondent)

File Number(s):

2022/00007729

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2021] NSWDC 670

Date of Decision:

13 December 2021

Before:

Judge Levy SC

File Number(s):

2018/00363440

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant (Mr Paul Dean) is a former patient of the respondent neurosurgeon (Dr Raul Pope). In 2013, the appellant experienced abnormal sensory symptoms in his right lower limb. The appellant’s general practitioner referred him to the respondent for neurosurgical assessment. The appellant had a consultation with the respondent on 15 October 2013, during which consultation the respondent noted his tentative view that CT scans revealed a “recalcitrant L5 radiculopathy due to a L5/S1 disc herniation”. The respondent recommended that the appellant have a perineural steroid injection and that an investigatory MRI study be undertaken of the appellant’s lumbar spine.

The injection relieved the appellant’s sensory symptoms temporarily. Dr Sebastian Fung, a radiologist, reported to the respondent as to his findings on the MRI carried out of the appellant’s lumbosacral spine. The report’s findings, among other things, noted a transitional lumbosacral junction with likely sacralisation of L5/S1; at L4/5, loss of disc height and signal, and “broad based mild disc protrusion”; and that there was no nerve root compression. The respondent had a different opinion on the issue of nerve root compression to that of the radiologist, reporting that he believed there to be nerve root compression at the L5/S1 level.

At the second consultation with the appellant, on 12 November 2013, the respondent recommended that the appellant have surgery on his lumbar spine for an L4/5 decompression, microdiscectomy and nerve root rhizolysis. On 16 June 2014, the respondent carried out the lumbar surgery on the appellant. There was no criticism of the respondent’s surgical technique. During the surgery, the respondent discovered a disc bulge at the L5/S1 level, and an annular tear with leakage of nucleus pulposis material which had adhered to the nerve root. The appellant did not experience any material relief from his pre-operative symptoms after the surgery; and began to experience additional symptoms, including back pain.

In March 2015, the appellant sought a further opinion from another neurosurgeon, Dr Timothy Steel. Dr Steel also did not suspect a thoracic cause for the appellant’s complaints. In August 2015, a neurologist to whom the appellant had been referred took further MRI and CT scans of the appellant’s thoracic spine, which revealed a large benign bone lesion or tumour that compressed his spinal cord at the level T5/6. The tumour was surgically excised the following month and it appears that this resolved the appellant’s lower back pain but did not resolve his sensory symptoms.

At first instance, the appellant alleged that: the symptoms with which he presented to the respondent, and for which he had the lumbar surgery, were attributable to the thoracic lesion; the lumbar surgery was unnecessary; and the respondent had wrongly diagnosed a lumbar cause and had proceeded to lumbar surgery with “undue haste”, without first arranging for a specialist neurological examination and without first proceeding to consider and pursue a diagnosis that explained the presenting symptoms.

The primary judge concluded that the appellant’s claim did not succeed on liability and causation issues but that, had it succeeded, the damages would have been assessed at $611,850.

On appeal to this Court, the principal issues were:

1. Whether the primary judge erred in applying s 5O of the Civil Liability Act 2002 (NSW) in the absence of evidence of nerve root compression and in circumstances where there was no discernible “practice” in the sense explicated in McKenna v Hunter and New England Local Health District [2013] NSWCA 476 at [160] (per Macfarlan JA).

2. Whether the primary judge erred in finding that the respondent had acted reasonably in proceeding to lumbar surgery.

3. Whether the primary judge erred in finding (having rejected the expert evidence of Professor Davis) that it was reasonable for the respondent not to pursue a thoracic cause for the appellant’s symptoms.

The Court (Ward P, Macfarlan, Meagher, White and Brereton JJA) held, dismissing the appeal:

As to issue (1):

1. The question posed by s 5O of the Civil Liability Act 2002 (NSW) is whether “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”. This requires identification of the “manner” in which the professional acted, and asking whether it was at the time widely accepted as “competent professional practice”. “Professional practice” in s 5O refers to the manner in which professionals practise their profession, not to a particular protocol, procedure or process. “Competent professional practice” refers to what a significant body of competent professionals would have done. The past tense “was” is used, not to refer to a subsisting practice, but to highlight that the judgment is to be made as at the time of the relevant conduct: [233]-[236] (Ward P, in obiter), [258] (Meagher JA, agreeing with Brereton JA), [260], [266]-[267] (White JA, agreeing with both Ward P and Brereton JA), [314] (Brereton JA).

   McKenna v Hunter and New England Local Health District [2013] NSWCA 476; Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29, considered.

2. Once invoked, s 5O effectively provides the applicable standard of care and ought to be considered prior to breach and causation: [258] (Meagher JA), [260] (White JA), [273]-[274] (Brereton JA).

   Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29, applied.

3. The effect of the High Court’s allowing the appeal in McKenna is that the ratio decidendi of this Court’s decision ceased to exist, although such parts of the decision as were not overruled by the High Court remain dicta which may be highly persuasive: [263] (White JA).

   Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336; [1981] HCA 4; Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48; Sutherland Re; French Caledonia Travel Service Pty Ltd (In Liq) (2003) 59 NSWLR 361; NSWSC 1008, considered.

4. Section 5O cannot be satisfied by a defendant simply calling an expert to say that in unique circumstances with which the defendant was confronted, the expert would have acted in a similar fashion to the defendant and that he or she considers that other practitioners would have acted similarly. If the legislature had intended this construction, it would have used the words “would have been” instead of “was”: [256] (Macfarlan JA, dissenting on this point).

As to issue (2):

1. The primary judge did not err in finding that the respondent had acted reasonably in proceeding to lumbar surgery. The observation made by the primary judge that the respondent had imaging evidence of an annular tear, and by his training could be taken to have known that leakage of nucleus pulposis material could cause irritation of the nerve root, did not lead the primary judge to err as to the reasonableness of the decision to recommend lumbar surgery. What led to that conclusion was that the appellant had presented to the respondent with symptoms that were concordant with a lumbar cause (and with an absence of symptoms to indicate a thoracic cause) and the MRI scan had indicated a disc herniation and associated disc bulge: [127] (Ward P), [259] (Macfarlan JA), [260] (White JA), [319] (Brereton JA).

2. The expert evidence of Professor Sheridan was that it was in accordance with reasonable, competent professional opinion for a decision to have been made to proceed to lumbar surgery having regard to the appellant’s history and to the MRI scan that Professor Sheridan was adamant showed enough “nerve impingement, compression” to justify surgery: [130] (Ward P); [259] (Macfarlan JA), [319] (Brereton JA).

As to issue (3):

1. The primary judge did not err in finding that it was reasonable for the respondent not to pursue a thoracic cause for the appellant’s symptoms. The history that the appellant presented was not indicative of a thoracic cause and the expert witnesses accepted that it would be a rare (if not almost impossible) occurrence that there be a thoracic cause for the symptoms that the appellant had disclosed at the time: [139] (Ward P), [259] (Macfarlan JA), [260] (White JA), [319] (Brereton JA).

2. The primary judge was entitled to find Professor Davis’ evidence unreliable, in light of Professor Davis’ failure to view the dynamic MRI scans on which he was providing an opinion, and omission to read the academic literature which he had cited and upon which he relied: [145] (Ward P), [259] (Macfarlan JA), [260] (White JA), [319] (Brereton JA).

   Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied.

JUDGMENT

1. WARD P: This appeal arises out of the dismissal of a claim brought by the appellant (Mr Paul Dean) against the respondent (Dr Raoul Pope), the appellant’s treating neurosurgeon, seeking damages for alleged professional negligence on the part of the respondent in respect of the respondent’s advice that the appellant undergo lumbar surgery (an L4/5 decompression, discectomy and nerve root rhizolysis surgery on the appellant’s lumbar spine), which surgery was carried out by the respondent on 16 June 2014. Although the pleaded claim suggested a complaint as to the manner in which the surgery itself was performed, there was ultimately no complaint as to the respondent’s surgical technique. Rather, the appellant contended that the lumbar surgery was unnecessary and that the decision to proceed with lumbar surgery was based on the respondent’s incorrect assumption that the presenting symptoms were caused by lumbar pathology when they were in fact caused by cord compression at the thoracic level which was not identified by the respondent.

2. In particular, in oral submissions on the appeal the appellant identified the following two aspects of the alleged negligence: first, that the respondent operated when there was no medical or scientific foundation for the lumbar surgery (see, for example, at AT 2.10ff, AT 4.4ff; AT 6.14ff) (based on the proposition that there was no rational basis for such surgery in the absence of nerve root compression) and, second, that the respondent did so without adequate investigation of the lower limb symptoms (radiculopathy) with which the appellant had presented when there were contraindications to there being a lumbar nerve root compression (see AT 4.20ff; T 6.17) (those contraindications, as I understand it, being related to a complaint that on occasion the appellant experienced complete numbness of the foot). As to the first of those, the appellant does not seem to draw a distinction between carrying out the operation or recommending an operation (AT 6.37) (although, as noted, there was no complaint as to the surgical technique). Further, it appeared to be 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 of the nerve root in the lumbar spine then the appellant’s claim would probably fail (AT 6.49), irrespective of whether there was adequate reason to apprehend that this would deal with the appellant’s lower limb symptoms (or radiculopathy).

3. The appellant was 25 years old when the lumbar surgery was performed. The appellant claimed that he sustained significant injuries as a result of the surgery, including localised back pain, genito-urinary problems and a psychological (somatoform) disorder, which the appellant contended had had a significant impact on his career and livelihood (as a surveyor).

4. The respondent contended that the decision to recommend lumbar spine surgery was reasonable, on the basis that there was a correlation between the appellant’s presenting symptoms, the radiological findings and his clinical observations. The respondent also relied upon a defence under s 5O of the Civil Liability Act2002 (NSW) (Civil Liability Act) to the effect that he had acted as a professional “in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice”.

5. The appeal was listed for a hearing before a bench of five on the basis that the respondent had advised that he intended to challenge the correctness of the decision of this Court in McKenna v Hunter and New England Local Health District [2013] NSWCA 476 (McKenna) and, insofar as it may be taken to have followed McKenna, the decision of this Court in Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 (Sparks). Ultimately, however, neither of the parties suggested that the issue as to the precedential authority and correctness of McKenna was necessary to decide in order to dispose of the appeal (the appellant submitting that in truth there was no real difference in the approach of Basten JA in Sparks from that of the Court in McKenna – see at AT 1.25; and the respondent arguing, among other things, that it was not open to the appellant to challenge the primary judge’s s 5O finding in circumstances where the appellant did not at trial adduce any evidence of a different prevailing standard to that which was explained by the appellant and the appellant’s expert, Professor Sheridan – see at AT 38.10 – but in any event contending that if s 5O was not engaged then there was evidence that what was done by the respondent was in accordance with what competent peers would regard as proper and there was thus no negligence – see the discussion at AT 39).

6. In practical terms, the appellant says that this appeal comes down to a simple question, namely whether the primary judge was entitled to infer that the respondent considered matters to justify his decision to proceed to surgery where no direct evidence was given about these matters. The respondent cavils with the premise of this submission, as explained in due course.

Factual background

7. In September 2013, the appellant experienced abnormal sensory symptoms in his right lower limb. The appellant’s general practitioner referred him to the respondent for neurosurgical assessment. The appellant had a consultation with the respondent on 15 October 2013, during which consultation the respondent recommended that the appellant have a perineural steroid injection and that an investigatory MRI study be undertaken of the appellant’s lumbar spine.

8. In cross-examination, the respondent accepted that, on presentation, the appellant’s complaints included that on occasion there was complete numbness of his foot (see T 254.44-50) and that this was not consistent with a “dermatomal distribution” from the lumbar spine (see T 255.1-6). The respondent did not test the appellant’s plantar reflexes (see T 255.19-20) at the initial consultation on 15 October 2013 and the respondent’s notes indicated that the appellant had not expressed any complaint as to lower back pain (see T 257.8-10).

7. In his report to the referring doctor (Dr Janet Lam) of 15 October 2013, the respondent recorded that he had reviewed a recent CT scan of the lumbosacral spine which showed a vestigial disc at S1, S2 and a disc herniation at L5/S1 towards the right lateral recess. (A vestigial disc was explained by the respondent as an incomplete disc or a disc that could point to a congenital anomaly known as transitional vertebrae – see T 209.37-44.) The respondent recorded in that 15 October 2013 report (under the heading “[i]mpression”, which he explained in his oral evidence indicated a provisional diagnosis or tentative view – see T 211.24-31) his opinion that the appellant was suffering from a “recalcitrant L5 radiculopathy due to a L5/S1 disc herniation”. The report also stated that the respondent would like an MRI “to look at the anatomy more clearly and if there is disc extrusion, I feel we are heading towards surgery given that he is in chronic pain and chronic denervation”. Chronic denervation was explained by the respondent as corresponding to the nerve being damaged permanently, “causing wasting and permanent neurologic deficit, including various modalities of weakness and numbness and so forth” (see T 211.40-50).

8. Neither at that initial consultation nor at subsequent consultations with the respondent did the appellant disclose that he was suffering from other sensory symptoms elsewhere at the thoracic level (a non-disclosure that the primary judge considered to be material – see below).

9. Following the initial consultation, a nerve block was administered and an MRl scan was carried out (the respondent indicating that the main reason for the steroid injection was a diagnostic one but that there was also a therapeutic reason) (see T 212.28-44).

10. On 23 October 2013, Dr Sebastian Fung, a radiologist, reported to the respondent as to his findings on the MRI carried out of the appellant’s lumbosacral spine. Under the heading “[c]linical history” appear the words “L5-S1 disc herniation on CT. ? right S1 compression”. The report’s findings, among other things, noted a transitional lumbosacral junction with likely sacralisation of L5-S1; at L4-5, loss of disc height and signal, and “broad based mild disc protrusion” and, under the heading “[c]omment”, concluded:

There is a transitional lumbosacral junction. The L5-S1 disc is rudimentary. Nomenclature of disc levels is based upon the iliolumbar ligament and there is therefore an L4-5 degenerative disc protrusion.

There is no nerve root impingement. There is minimal to no lateral recess stenosis associated with the L4-5 disc protrusion. The foramina and canal are clear. [Emphasis added]

13. Much weight is placed by the appellant on the radiologist’s finding that there was no nerve root impingement. (Dr Fung was not called to give evidence at the hearing.) In cross-examination, the respondent accepted that the radiologist had reported that the MRI showed no compression of the nerve root to explain the sensory changes the appellant was experiencing in the right leg (see T 257.12-16, T 269.6-9). However, it is clear from the respondent’s report to the referring doctor by letter dated 12 November 2013 that the respondent had a different opinion on the issue of nerve root compression to that of the radiologist. That report noted that the injection had given the appellant some good relief for a few weeks but that the symptoms had recurred, and went on to state that:

The MRI did show a vestigial disc at L5/S1 and the disc herniation was described L4/5 with a right paracentral disc extrusion but no compression of neural structures. I beg to defer [sic; “differ” – see T 219.19-27] that there may be some compression of the nerve root which is L5 based on the report but clinically if it indeed is the L5/S1 level then it could be the S1 nerve root which is consistent with S1. [Emphasis added]

14. Pausing here, the respondent relies on this contemporaneous report as rendering unsustainable the proposition said to be embodied in ground 1(b) of the amended grounds of appeal (see below) that there was no evidence that the respondent believed that compression was found.

15. It is also relevant here to note that there appeared to be some conflation in the evidence as to “impingement” and “compression”, there being at least one occasion when the terms appeared to be used synonymously (see, for example, the evidence of Professor Sheridan at T 345.33-36s). As I understand it, impingement in effect means contact with the nerve root (which might be from a mechanical cause such as a disc herniation or disc protrusion, or from a chemical cause, such as leakage of nucleus pulposis material contained in the disc as a result of an annular tear – which I explain in due course) and compression means a degree of distortion of the nerve root caused by such impingement.

16. At the second consultation with the appellant, on 12 November 2013, the respondent recommended to the appellant that he should have surgery to his lumbar spine for an L4/5 decompression, microdiscectomy and nerve root rhizolysis. (Rhizolysis was described by the respondent as essentially the part of the operation where the nerve root lateral or to the outer part of the thecal sac was decompressed fully as it exits away from the thecal sac and that the surgeon was making sure it had free passage of any other structures that may be compressing it – as opposed to rhizotomy, which is the cutting of the nerve root – see at T 234.1-12.) The reference to surgery for decompression indicates that the respondent’s belief (consistent with his “beg to [differ]” comment) was that the MRI scan did show some compression.

17. The respondent’s 12 November 2013 report to the referring doctor stated that the respondent felt this (i.e., lumbar surgery) was a reasonable option given that the appellant’s history and signs were consistent with a radicular component. The respondent’s evidence in chief was that, as the appellant had obtained some relief from the injection, it suggested that the problem was coming from the lumbar spine and from the nerve root (see T 219.1-17); that the MRI result “somewhat confirmed” the working diagnosis (that he had formed on 15 October 2013) (see T 220.44-58); and that he proceeded to recommend surgery assuming a pain generator at L4/5 (accepting the radiologist report in this respect). The respondent explained that his impression at the initial consultation was an L5 radiculopathy and that the clinical, radiologic, levels had been verified as L4/5; so that this reinforced his preferred diagnosis (see T 220.39-42).

18. In cross-examination, the respondent accepted that no conclusive evidence was derived from the perineural injection as to the precise level of a pain generator (see T 269.11-15); and that the appellant was making slow progress in early 2014 before the surgery (see T 269.17-23).

19. The respondent’s evidence in chief included that “[t]he fact that the disc herniation was small and not excessively large and causing great displacement of the nerve” was the main reason that he gave the surgery a lower chance of success (see at T 222.43-50, T 223.1-3). Consistently with this, the appellant gave evidence (see at T 41.45-49) that the respondent told him after the MRI that:

It’s by no means a big herniation. Usually when you see a herniation it jumps off the pages, you can definitely tell that, but you had to look for my one. It was pretty insignificant. …

20. The appellant also said that the respondent told him that “you could see five – get five other opinions and maybe only two would operate”. The respondent did not accept that this was an accurate account of the conversation, but it was accepted by the respondent that there would be some neurosurgeons that would not choose to operate (consistent with what the appellant says the respondent had told him – see above), the respondent explaining his understanding of the basis of such a decision to be that (at T 270.14-20):

If there was no correlation between the history, the physical examination and the imaging findings ruling out other differential diagnoses, then one may make the conclusion that operative management of this particular condition may not be warranted. It may not offer the patient benefit.

21. The appellant’s evidence was that his only concern at that stage was as to the sensory issues in relation to his right leg (see T 42.8-25) and that he was put on a waiting list but that he “really did not want to just jump into surgery” (see at T 43.34-38). Indeed, the appellant’s evidence was that he refused the surgery twice as he did not think it was necessary but eventually agreed when the respondent’s receptionist told him that a third refusal would result in him taken off the waiting list (see T 46.15-19).

22. On 16 June 2014, the respondent carried out the lumbar surgery on the appellant at Concord Hospital. As adverted to above, it does not appear that there was any criticism of the respondent’s surgical technique (see T 272.20-25).

23. The operation report noted that:

Radiological findings

L4/5 radiologic level. VeStigial disc L5/S. Disc bulge right L 4/5 level

Pathological process found in surgery

Adherent L5 root to PLL and annular tear/bulge

24. The appellant points out that the respondent accepted in cross-examination that there was no mention in this report of any inflammation of the nerve roots observed in the operation (see at T 273.28-30). The respondent’s evidence was that if there were visible signs of discoloration or inflammation or swelling of the nerve then that would correlate with a diagnosis of nerve root pathology; but the respondent said that there was “adhesion” (explained by the experts in their evidence, which is considered in due course below) (see at T 273.45-50). The respondent agreed in cross-examination with the proposition that there was “no sign that this root was inflamed, or otherwise the L5 root was inflamed, or otherwise compromised” (see at T 275.11-13).

25. During his evidence in chief, the respondent was questioned by the primary judge as to there being no note in the operation report as to the existence of a disc protrusion. The respondent’s response was that there was definitely a disc protrusion (otherwise known as a disc herniation or bulge) in addition to an annular tear but the respondent accepted that he had not noted it in his report (see at T 234.20-24). (The annulus is the outer lining of the disc, the inner parts of the disc containing the nucleus pulposis – see at T 271.42-47, material described as being like “crabmeat” or plasticine – see at T 380.9-34. An annular tear is a defect in the wall of the disc of the ring, which contains the nucleus pulposis – see at T 273.11-22.)

26. At [95](4) of the primary judgment, the primary judge noted that both expert neurosurgeons agreed at the first concurrent evidence session that, while it was not a universal view, it was a commonly held view that (when operating in the context of a detected annular tear) it was reasonable to incise the annulus and remove disc fragments within the disc space (see T 305.9-28); and, as noted above, there was no issue as to the competence of the annulotomy carried out by the respondent.

27. The appellant did not experience any material relief from his pre-operative symptoms after the surgery; and began to experience additional symptoms, including back pain. The appellant saw the respondent at a further nine consultations, during which the respondent recommended to the appellant that he continue with physiotherapy treatment and observe lifting and carrying restrictions in his work as a surveyor.

28. In March 2015, the appellant sought a further neurosurgical opinion from another neurosurgeon, Dr Timothy Steel. The respondent points out that Dr Steel also did not suspect a thoracic cause for the appellant’s complaints. Dr Steel was not called in the appellant’s case, but his several reports to the treating doctor (Dr Lam) relating to his own investigations of a lumbar cause were in evidence. The respondent says that none of Dr Steel’s notes impugns the respondent’s management of the appellant.

29. The appellant was also referred in August 2015 to a neurologist, Dr Neil Simon. (The respondent points out that Dr Simon provided a report that expressed no criticism of the respondent, despite the appellant’s solicitor’s letter of instruction to him expressly asking him to critique the respondent’s management.) It is also noted that, although the appellant tendered that report, he did not seek leave to adduce oral evidence from Dr Simon.

30. In August 2015, MRI and CT scans of the appellant’s thoracic spine revealed a large benign bone lesion or tumour that compressed his spinal cord at the level T5/6. The appellant says that this tumour was the cause of the appellant’s original presenting symptoms for which he had been referred to the respondent (though there was some dispute between the expert neurosurgeons as to whether the symptoms of leg pain were symptomatic of thoracic spinal cord compression – see at T 336.16-50, T 337ff). The tumour was surgically excised the following month and it appears that this resolved the appellant’s lower back pain but did not resolve his sensory symptoms.

Proceedings

31. On 26 November 2018, the appellant brought proceedings in negligence against the respondent. As outlined above, the appellant’s case in essence was that the symptoms with which he presented to the respondent in late 2013, and for which he had the lumbar surgery in mid-2014, were attributable to the thoracic lesion; that the lumbar surgery was unnecessary; and that the respondent had wrongly diagnosed a lumbar cause and had proceeded to lumbar surgery with “undue haste”, without first arranging for a specialist neurological examination and without first proceeding to consider and pursue a diagnosis that explained the presenting symptoms. The primary judge rejected the suggestion that the respondent had “leapt” into surgery (see below), noting the time that had elapsed between the initial consultation and the surgery.

32. Although the appellant had pleaded that the respondent owed him a duty to ensure that the “operation and all medical services were performed with reasonable care” (see at [20] of the statement of claim), as noted above there was ultimately no criticism of the way that the lumbar surgery was performed by the respondent; rather, the complaint was that the lumbar surgery was unnecessary and that the respondent had breached his duty of care in failing to provide adequate pre-operative examination and investigation of the appellant. The appellant contended that in the period from 15 October 2013, when he first saw the respondent, until the last consultation on 12 August 2015, the respondent negligently treated his spinal symptoms, including by failing to investigate and diagnose his thoracic condition. This, the appellant alleged, meant that the appellant was subjected to unnecessary lumbar surgery and that there was a delay in finding the bony lesion in his thoracic spine, which resulted in avoidable neurological degeneration.

33. As noted above, the respondent denied negligence, claiming that his assessment and treatment of the appellant’s presenting symptoms was in accordance with peer professional practice that was at the time widely accepted in Australia in accordance with s 5O of the Civil Liability Act.

34. The respondent contended that he had performed an appropriate and thorough examination of the appellant at his initial assessment and that his findings on his examinations, combined with the results of imaging investigations, were consistent with the appellant’s complaints. It was said that the appellant made no complaints consistent with thoracic spine pathology or a T5/6 exostosis at any time; and that the subsequent diagnosis of a T5/6 exostosis was an unrelated finding that arose in a different clinical context and was not reasonably foreseeable to a neurosurgeon in the respondent’s position at the time (see as noted by the primary judge at [277] of his Honour’s reasons).

35. The primary judge identified the substantive legal issues for determination (at [29] of the primary judgment) as follows:

(1)    Findings on relevant factual matters concerning first, the identification of the nature and the extent of the plaintiff’s pre-operative presenting problems as they evolved over time, and the related chronological events that then followed. 

(2) Identification of the relevant risk of harm within the meaning of s 5B of the CL Act.

(3)    Identification of the scope and content of the duty of care owed by Dr Pope.

(4) The determination of whether, within the meaning of s 5O of the CL Act, Dr Pope has discharged the burden of proving the claim of a sheltering defence to the effect that his management and treatment of the plaintiff was in accordance with peer professional practice that was at the time widely accepted in Australia. That question is dependent upon which elements of conflicting expert evidence should be preferred to guide the determination of the related question as to what should be accepted as peer professional practice in the presenting circumstances. 

(5) The determination of whether, according to the analysis required by s 5B and s 5C of the CL Act, Dr Pope should be found to have relevantly breached the duty of care that he owed to the plaintiff.

(6) The determination of whether, in terms of s 5D of the CL Act, any established breach of the duty of care owed by Dr Pope should be found to have relevantly caused the harm claimed by the plaintiff.

(7)    The assessment of the plaintiff's damages in respect of non-economic loss; past economic loss; future loss of earning capacity; post and future superannuation losses; future domestic assistance; future treatment expenses; and past out-of-pocket expenses.

36. His Honour identified the central factual dispute in the proceeding as being whether the appellant’s lower limb symptoms were adequately considered and investigated before the respondent proceeded to recommend and arrange surgery on the appellant’s lumbar spine (see at [23] of the primary judgment). The appellant does not cavil with this description of the central factual matter in dispute (and, as noted above, identified the relevant negligence as including an inadequate investigation of the appellant’s presenting symptoms). The respondent, however, says that the evidence at the hearing as to whether there was adequate investigation of other causes was limited to a “tepid” answer from the appellant’s expert (Professor Davis) that “potentially” the appellant should have been referred to some other specialist before surgery (see AT 29.5-32).

37. His Honour noted (at [28] of the primary judgment) that the analysis and resolution of the areas of disagreement within the expert evidence depended upon a prospective interpretation and characterisation of the appellant’s pre-operative presenting symptoms as they evolved, and how they were presented to the respondent, in conjunction with a consideration of the contemporaneously recorded medical histories that were provided by the appellant.

Evidence from expert neurosurgeons

38. Expert evidence was called from two neurosurgeons: Professor Gavin Davis, the expert called by the appellant; and Professor Mark Sheridan, the expert called by the respondent.

39. Professor Davis made very clear that he would have approached the appellant’s management differently. In particular, Professor Davis said that, in the absence of nerve root compression, spinal thecal compression or instability, there was no indication for surgery; and that a mild disc bulge (as Professor Davis says appeared from the 23 October 2013 MRI scan) in someone who has pain is no indication for lumbar surgery (see at T 330.32-50). Professor Davis accepted that, in cases of “extreme subtlety”, reading an MRI scan might be susceptible to different interpretations by different neurosurgeons but appeared to be adamant that if there is not “gross” nerve root compression then there is no indication for surgery (see at T 345.47-50).

38. Professor Sheridan, on the other hand, strongly disagreed with Professor Davis’ statement that there was no nerve compression or irritation visible on the 2013 MRI image. Professor Sheridan considered that “there was enough nerve impingement, compression” to justify the surgery (accepting that there would be a range of views on this) (see T 345.33-36). Earlier, Professor Sheridan indicated that he considered that there was enough change to justify surgery, saying (at T 331.10-13) that:

And I think a reasonable neurosurgeon at that time in a standard neurosurgical – predominantly spinal practice, would have offered this patient surgery, not giving guarantees of 100 per cent success.

41. In essence, Professor Sheridan’s opinion was that the respondent acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. In oral evidence, Professor Sheridan said (at T 329.6-8), after having read the respondent’s oral evidence, that:

If I had been in that situation, having read Dr Pope’s report of that consultation and his subsequent testimony, I would have followed the exact same path Dr Pope would have followed.

42. Each of the expert neurosurgeons produced a number of written reports – primary reports followed by sequential commentaries as described by the primary judge at [73] of his Honour’s reasons – not all of which were read in the proceedings; and they also met in conclave and produced a joint report. Their oral evidence was given concurrently in a number of sessions (in part due to timing constraints but, at least in relation to the later session, in order to permit Professor Davis to view “dynamic images” of the relevant MRI scans to which Professor Sheridan had referred in his oral evidence; and then to permit reference to certain articles to which Professor Davis had referred in his supplementary report).

43. The primary judge summarised the respective reports (from [74]ff) of his Honour’s reasons.

44. Relevantly, the reports that ultimately were in evidence (chronologically ordered) were: the first report dated 27 May 2019 of Professor Sheridan; the first report dated 9 September 2019 of Professor Davis, which responded to a series of questions framed by the appellant’s legal representatives (and which the primary judge considered suggested an inappropriate hindsight analysis – see at [75]; the relevant questions being set out in the report); the second (supplementary) report, dated 27 April 2020, of Professor Sheridan, commenting on Professor Davis’ first report; the third report, dated 29 May 2020, of Professor Sheridan, addressing a question as to differences that had been found on physical examination of the appellant; a joint report dated 9 June 2020 of the two experts, addressing eleven agreed questions; the fourth report, dated 3 August 2020, of Professor Sheridan (produced after Professor Sheridan’s oral evidence on 16 July 2020 as to the MRI images taken on 23 October 2013 of the appellant’s lumbar spine); and a supplementary report by Professor Davis, dated 6 August 2020.

45. The concurrent evidence sessions occurred on 16 July 2020; 23 July 2020; 17 September 2020 and 3 December 2020 (see as summarised at [95]ff of the primary judgment). Professor Sheridan’s fourth report, and Professor Davis’ supplementary report thus followed the first two concurrent evidence sessions.

46. The primary judge summarised at [94] of his Honour’s reasons the areas of agreement between the experts as outlined in their joint report; and then went on to set out matters of relevance emerging from the concurrent evidence sessions at [95]ff.

47. As to the first concurrent evidence session, his Honour noted, among other things, the difference of opinion as between Professor Davis and Professor Sheridan as to whether the presenting picture justified the course taken by the respondent (Professor Davis’ position being that he did not see a correlation between the radiology and clinical findings in the case and would have looked for an alternative explanation to a lumbar explanation before operating) (see at [95](5)) and as to the level of certainty required in respect of clinical indications for surgery (see at [95](6)); that the experts agreed that the appellant’s ultimate back pains could have been contributed to by the back surgery (see at [95](7)); and that the effect of the respondent’s comment on 12 August 2015 (that the appellant’s complaint of sensory loss over the whole of the right leg made no sense) applied only if one was considering a lumbar cause and that the comment made perfect sense if considering a cause emanating from a higher level of the spine (which his Honour said supported the inference that the respondent had dismissed the possibility of a higher cause at that time, as stated in his evidence) (see at [95](8)).

48. His Honour also noted that Professor Sheridan was satisfied that the appellant’s presentation at the first consultation pointed almost entirely to the presence of a lumbar pathology and he would have taken the same diagnostic pathway as the respondent (see at [95](11)); and that Professor Sheridan was convinced that the presentation strongly fitted with assumed lumbar pathology rather than a thoracic cord compression (see at [95](15)), whereas, Professor Davis had argued that a slower pathway towards surgery should have been taken in the case of pain in the presence of a radiologically assessed small disc bulge absent MRI evidence of nerve root compression or spinal thecal compression (see at [95](512)) and in this instance his practice would have been to discuss the MRI interpretation with the radiologist and look for another cause for the appellant’s symptoms because there was insufficient correlation for surgery (see at [95](16)).

49. His Honour noted that much of the second concurrent session related to the interpretation of pain symptoms, referring to an academic paper that his Honour considered of limited relevance on the question of the reasonableness of the respondent’s decision to operate on the appellant (see at [98](4)). What was explored at the second concurrent evidence session included the distinction between nerve root irritation caused by a chemical process (such as leakage or extrusion of disc material or the nucleus pulposis – wrongly referred to in some of the evidence as the annulus pulposis) and nerve root compression due to a mechanical process, both of which were recognised as potential contributors to pain (see at [98](9) of the primary judgment). Relevantly, his Honour noted that a question had arisen as to the interpretation of dynamic images comprising the lumbar MRI scans, which question was flagged for further attention from the experts, and which resulted in Professor Sheridan’s fourth report dated 3 August 2020 (see at [98](6)).

50. His Honour noted that Professor Sheridan’s comment that if there was a history of lower back pain, leg symptoms and decreased range of movement in the lower back then the overall picture would indicate a lower back problem and would make one quite comfortable that the “pathology is in the right place” and that in such a clinical setting one need not look further for other causes (see at [98](1)); and that, after reading the respondent’s evidence in the proceeding, Professor Sheridan remained of the opinion that the respondent’s treatment of the appellant was exemplary (see at [98](5)). His Honour noted that Professor Davis agreed that pain could be a confounding factor that could be a variable in an assessment, even in the presence of focal neurology such as muscle weakness (see at [98](3)). At [98](7), the primary judge noted that Professor Davis also stated that it was the responsibility of the surgeon to look at the MRI images and form his own conclusions; and that the decision to operate rested with the surgeon irrespective of the views of respected radiologists.

51. The primary judge noted that the third concurrent evidence session was convened to enable a discussion on the MRI images and that Professor Sheridan had produced the 3 August 2020 report which referenced still MRI images taken on 23 October 2013 with the aim of depicting sites of chemical irritation or signs of contact between protrusion of disc material and nerve tissue (see at [99](1)); and that there was a disagreement between the experts on the interpretation of the scan (referred to as image 1, or the first image) as showing a compression (see at [99](4)). His Honour also there noted an area of disagreement between the experts on the interpretation of a 2005 journal article as to the connection between back pain and leg pain but considered that nothing turned on that article (or the expert’s disagreement) on a prospective analysis of the respondent’s clinical decision making (see at [99](5)).

52. The fourth concurrent evidence session was convened (following adjournment of the third session to enable the appellant’s counsel to read the journal materials which were referred to by the experts (see the primary judgment at [99](6)). The primary judge noted that there was evidence from Professor Davis as to the literature that in his view demonstrated that thoracic cord compression could cause sciatica (referring to articles referring to patients with paraesthesia (pins and needles) and pain in the lower limbs typical of sciatica), whereas Professor Sheridan considered that the articles specifically described leg pain as distinct from paraesthesia (see the primary judgment at [100]).

53. In summary, a review of the transcript of the various concurrent sessions reveals the following.

54. Both expert neurosurgeons agreed (see at T 345.3-13) that if the conclusion was that there was no nerve root compression then there was no rational basis upon which to offer the surgery (an answer that counsel for the respondent later tried unsuccessfully to clarify – there being an objection maintained by counsel for the appellant in that regard – see at T 345.1-7, T 366.39-50, T 367.1-32). However, what is clear is that at least Professor Sheridan appears to have considered that chemical irritation caused by leakage of nucleus pulposis material would also justify surgery – though that might be difficult to diagnose from an MRI scan (see below). In any event, in that context, it is relevant to note that there was dispute between the experts as to what the MRI scans actually showed.

55. Professor Sheridan made clear his view (as noted above) that (at T 345.33-36):

I think there was enough nerve impingement, compression; there is a whole range of words to describe the thing; to justify the surgery. That’s my view. And as Professor Davis said, there is going to be a range of views on this

albeit saying that no one would say that it was a “classic huge disc” (at T 345.40-41).

56. There was some debate in oral submissions as to whether Professor Sheridan was treating “impingement” and “compression” as synonymous terms or, as the appellant suggests, was there saying that there was enough nerve impingement to cause compression but in any event Professor Sheridan was clearly of the view that that was shown on the MRI scan justified lumbar surgery.

57. Professor Davis, on the other hand, said that when making a decision for surgical excision of a disc one is looking for gross nerve root compression and that if there is not gross nerve root compression there was no indication for surgery and that (at T 346.15-19):

… the radiological findings being subtle just did not correlate with quite extensive symptoms and signs, that is why I would normally take a step back and reconsider; you may want to go and discuss the MRI with a radiologist to look for an alternative cause, but it just doesn’t correlate.

58. Professor Davis considered the account given by the respondent (at T 233.21-32) as to the posterior longitudinal ligament (PLL) being adherent in this case to the dura of the thecal sac (so that an annulotomy had to be performed) and seemed to accept that if what was detected was an annular tear then it would be reasonable to incise the annulus and remove disc fragments but Professor Davis said that this was not a universal approach (though within the realm of a reasonable approach) (see generally at T 305.1-28). Professor Davis considered if the annular tear was in the midline adherent to the theca then this might affect the PLL but should not affect the nerve root (see T 304.13-25).

59. Both experts agreed that, with an annular tear, one would expect to see back pain. Professor Davis did not think there was correlation between the clinical findings and the radiology and said he would have looked for an alternate cause before operating (see at T 306.24-26), stating also (at T 332.19-20) that “most neurosurgeons would agree that if there is no evidence of clear nerve root compression, one should not operate”.

60. Following debate in the course of concurrent evidence on 23 July 2020 as to the MRI images, it was arranged for there to be a “dynamic view” of the MRI images by the expert neurosurgeons (see at T 381-383). This led to the supplementary report of Professor Sheridan and to Professor Davis providing his further report (after an opportunity for him to view the MRI scans – those not having previously been provided to him by the appellant’s solicitors, as opposed to pictures of the scans). Up to that point, Professor Davis had only reviewed copies of the scans not the actual pre-operative MRI images on disc. Professor Davis said that he was provided with one or two images that were printed out but not the whole disc (see at T 374.27-37). The respondent here says that it is still not clear whether Professor Davis ever reviewed the actual scans (see submissions).

61. After that process, the experts were again in disagreement as to what was to be observed on the scans. Professor Davis (in his letter of 6 August 2020) considered that a closer analysis of the MRI slides (provided this time to Dr Davis by way of PowerPoint slides on which Professor Sheridan had made notations – thus not a dynamic viewing of the MRI slides as the primary judge had envisioned) provided no evidence of neural chemical irritation and hence that such chemical irritation was not demonstrated in the relevant scan. Professor Davis went through the three slides identified by Professor Sheridan in his report dated 3 August 2020 and confirmed that in his opinion there was no evidence of nerve root impingement. Professor Sheridan (see T 405.8-17) disagreed. His evidence was that the degree of chemical irritation was not really demonstrated well on an MRI scan and that (at T 405.14-17):

[i]n some instances, you certainly can see a swollen nerve root, which would suggest an irritated, inflamed - whatever terminology you would like to use - nerve root; but the absence of that swelling does not exclude an irritation nerve root.

62. The appellant maintains that Professor Davis’ opinion was consistent with the opinion of Dr Michael Jones in his report dated 30 April 2020 that “[t]here is no displacement or compression of the descending right S1 nerve root. No abnormality is visual within the right L5-S1 interverbal foramen” and consistent with Dr Fung’s earlier report dated 23 October 2013.

63. In the course of the concurrent evidence, when questioned by the primary judge as to possible impingement, Professor Sheridan said (at T 405.30-38) that he was looking for impingement of the disc actually touching the nerve; that this was a small disc protrusion; and that it was a subtle irritation. However, Professor Sheridan confirmed that, on the balance of the “whole picture” (i.e., imaging, patient’s history, examination, response to treatment) if he were presented with this case, he would offer the patient an operation.

64. Professor Sheridan said that there was no degree of swelling that he could see in the nerve root (looking at the second and third annotated images of the still MRI scans) but that “what you want is the absence of the CSF signal, the white around the nerve root”. Professor Sheridan said that he could not see white above the nerve; and that there was no CSF between the disc and the nerve anterior or at the top of the picture on the third image so that in his opinion this was consistent with the patient’s symptoms and he estimated that this showed about a millimetre or two of compression (see T 406.45-50, T 406.1-13). That evidence, read in context, seems to be focussed on the question of impingement not chemical irritation and as noted above it is relevant that Professor Sheridan indicated that he considered that there was compression.

65. When Professor Davis was questioned on 17 September 2020 about the October 2013 MRI of the lumbar spine, he confirmed that the only form in which he had seen it (and seemingly this was even after the adjournment that appears to have been for the express purpose of permitting a dynamic view of the scans) was in the still images taken from it and referred to by Professor Sheridan (see at T 412.1-20) and he recalled that similar images were provided within the file with which he was originally provided but said that “[y]ou don’t need to see the entire MRI series, but you can still be provided with a representative image as Professor Sheridan’s provided here”. (The appellant here argues that if Professor Davis considered that he needed to see the original scans it would be expected that he would have said so.)

66. Professor Sheridan also gave evidence on 17 September 2020 that he could not find a single case in the articles or papers to which he had been referred of spinal cord compression causing leg pain, which he said was entirely consistent with his clinical experience. Professor Sheridan said that the reference to radicular pain in the articles to which Professor Davis had referred was radicular pain at the level of the tumour – so that if the tumour was in the thoracic spine then it would cause nerve root compression at that level causing pain around the chest or around the abdomen (see at T 414.5-18).

67. There was a further adjournment for Professor Davis and the appellant’s counsel to review the relevant articles (notwithstanding that these were articles that he himself had cited) and he was then questioned as to whether any of those articles made a connection between thoracic pathology and leg pain, in response to which he referred to the vagueness of the term “sciatica”. Professor Davis considered that there was sufficient evidence in the papers he had quoted to say that there could be leg symptoms in the setting of thoracic cord tumours without necessarily having signs of spinal cord compression (see at T 428.3-50, T 429.1-40).

68. Professor Sheridan maintained his opinion that none of the articles showed any evidence of leg pain; rather, he said that the articles described very clear cut localised pain at the site of the lesion and neurological symptoms (not pain) in the lower limbs (see at T 429.44-48, T 430.9-23), to which Professor Davis’ response was that in his experience thoracic cord tumours can and have produced sciatic-like symptoms (see at T 430.27-37).

69. Professor Davis, asked if it was a rare occurrence for people with thoracic lesions to experience sciatica like symptoms (which would include pain) apart from sensory 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.

70. Professor Davis’ opinion was that if the original lumbar MRI does not correlate with the clinical presentation then “you go looking for it, because it’s not a very common phenomenon” (i.e., the thoracic tumour being the relevant cause of the symptoms) but added that “it is rare, but it – it is well established and well appreciated in the neurology circle”. Professor Davis confirmed his opinion that the appearance radiologically within the lumbar spine would not have justified surgery in the present case (see at T 434.23-24).

Evidence from expert radiologists

71. Evidence was also adduced from two expert radiologists: Dr James Bowden, called by the appellant (whose report the primary judge said it was unnecessary to review in detail as it dealt with uncontroversial historical descriptions and otherwise was heavily redacted which limited its evidentiary utility – see at [102] of the primary judgment); and Dr Jones, called by the respondent.

72. In his report dated 30 April 2020, Dr Jones said that:

Mr Dean’s initial MRI scan showed a right posterolateral L5-S1 annular tear with a small focal protrusion, but no significant neural encroachment. There was no thecal sac deformity to indicate it was being compressed. There was no encroachment into the intra-vertebral foramen. The L5-S1 disc was dehydrated indicating disc degeneration. The scan was otherwise normal.

73. The appellant says that this is clear corroboration from the respondent’s expert that no mechanical nerve root compression was visible on the MRI (cf Professor Sheridan’s opinion as noted above). Dr Jones also reported that:

Disc protrusions cause leakage of annulus pulposis into the epidural space. The annulus pulposis is highly irritant and sets up inflammation. The inflammation produces radiculopathy if it affects a nerve exiting through the intravertebral foramen, or a descending nerve in the lateral recess of the spinal canal. … The inflammation may resolve over time spontaneously, it may resolve following targeted steroid injection, or may be persistent and product chronic radiculopathy.

74. It appears to have been conceded that the reference by Dr Jones to “annulus pulposis” should have been to “nucleus pulposis” (see discussion at T 375.28-50, T 376.1-20) (an error later repeated in the primary judge’s reference to Dr Jones’ evidence at [106] and elsewhere in his Honour’s reasons).

75. The appellant argues that the relevance of this evidence to the proceeding is unclear, emphasising that the respondent gave no evidence that he considered there was leakage of disc or material irritating the nerve. As to the relevance of these comments, Professor Davis said that (see at T 375.39-46):

The annulus is the outer fibrous layer of the disc. It doesn’t contain any inflammatory mediators per se. It’s the nucleus that resides inside the annulus that if it prolapsed out can cause acute inflammation temporarily. So I’m not quite sure if he’s referring to the annulus or to the nucleus and in the context of this particular case, there was no evidence of any nucleus pulposis extrusion to the affected – the supposedly affected nerve root. So, I don’t take that at its face value.

76. Professor Sheridan read this part of Dr Jones’ report as commenting on the ability of the nucleus pulposis to cause a chemical irritation of the nerve rather than nerve root compression (see at T 376.7-20) and said that it was a well-accepted concept that nerve irritation from the irritant nature of the nucleus could certainly contribute to a patient’s nerve pain; and that it could also be concordant with the respondent’s finding intraoperatively that there was tethering or scarring (i.e., adhesion).

77. Professor Sheridan accepted that the description of disc herniation (in the respondent’s report of 12 November 2013 where the MRI was referred to as describing disc herniation with a right paracentral disc extrusion) was the equivalent of leakage of the nucleus pulposis, Professor Sheridan saying that it was the same thing and that it was a matter of degree – that it is a process starting with a fracture or tear in the annulus of the disc and then the nucleus pulposis leaks out through the tear; and that it could be very minor (just a white spot on the MRI) or right up to some very large disc herniation and anything in between (“[s]o just exactly what’s been described”) (see at T 379.26).

78. Professor Davis accepted that a disc extrusion correlated with the concept of nucleus pulposis prolapse or leakage but said that a disc bulge did not “by necessity implicate nucleus pulposis lying adjacent to the feca [sic; presumably a transcription error for theca]” because it depended on the posterior longitudinal ligament (PLL) and that there could be a tear in an annulus and a disc bulge without a competent posterior longitudinal ligament, in which case there would be no connection between the different structures. Professor Davis said that one needed to “have a look at the films to be a little bit more certain in [one’s] description” (see T 379.30-39). Professor Davis said that a classic disc prolapse through a torn annulus into the spinal canal may or may not produce an inflammatory reaction around a disc; and that some people might have an asymptomatic disc prolapse but on the other hand a small disc prolapse might produce a massive inflammatory reaction “and everything in between” (see at T 381.12-18).

79. Professor Sheridan confirmed that, with the potential for nucleus pulposis to irritate a nerve root chemically, mere physical contact (as opposed to compression per se) would be a sufficient basis to cause chemical irritation (see at T 381.1-7).

Other expert and medical evidence

80. Other expert and medical evidence was relied upon during the proceedings at first instance but it is not necessary here to summarise that evidence. It will be referred to insofar as it is relevant to the arguments raised on appeal in due course. Relevantly, the respondent notes that there was also evidence from Dr Peter Bentivoglio, a neurosurgeon who provided a medicolegal report to the solicitors formerly engaged by the appellant, addressing questions that the respondent says were plainly directed to establishing breach of duty by the respondent. It is said by the respondent that Dr Bentivoglio’s report was entirely supportive of the respondent’s diagnosis and management, and his unchallenged opinion was not critical of any aspect of the respondent’s care of the appellant.

Primary judgment

81. The primary judge summarised at [7] his Honour’s conclusions as to the outcome of the proceeding, namely that the appellant’s claim did not succeed on liability and causation issues but that, had it succeeded, the damages would have been assessed at $611,850 (as to what this comprises, see below).

82. After making various factual findings (Issue 1), his Honour addressed the relevant risk of harm (Issue 2) and duty of care, scope and content (Issue 3). As to Issues 2 and 3, his Honour concluded: first, that the relevant risk of harm was that an inadequate pre-operative surgical assessment had the potential to lead to unnecessary surgery which, if performed, could result and lead to additional avoidable post-operative disability and non-alleviation of the original presenting symptoms, including the possibility of an additional level of neurological damage if necessary surgery was needlessly delayed (see at [269] of the primary judgment); and, second, that the doctor/patient relationship gave rise to a single comprehensive duty of care, the scope of which in this case was the duty to take reasonable care when reviewing and considering the history of the appellant’s presenting problems; to conduct an adequate examination of the appellant; to take reasonable care when considering the clinical findings and any test results; and to arrange further relevant investigations if considered necessary before recommending that the appellant undergo surgery, including not to recommend surgery that was unnecessary in the presenting circumstances (see at [270] and [272] of the primary judgment).

83. His Honour also noted that the duty to take reasonable care was not absolute and, in particular, that the respondent was not duty-bound to make a correct diagnosis in circumstances where there was reasonable scope for variations in clinical management, including scope for a reasonable margin of error in making interpretative clinical judgments involving diagnostic decisions (see at [273] of the primary judgment).

84. No issue is here taken by the appellant with the above analysis.

85. Issue 4 (the defence claimed pursuant to s 5O of the Civil Liability Act) was then dealt with by the primary judge from [275] of his Honour’s reasons. His Honour concluded (at [307]) that the respondent had discharged the onus of proof of establishing his defence that, in his management and treatment of the appellant’s presenting problems, he had acted in a manner that was widely accepted in Australia by professional peers as competent professional practice and, thus, that the respondent had established a complete defence to the appellant’s claim against him.

86. Noting (at [279] of the primary judgment) the appellant’s contention that, for s 5O to be applicable, it was necessary to satisfy two criteria: first, to identify the specific “practice” that was in existence at the time the impugned service was provided (relying on McKenna per Macfarlan JA at [160]); and, second, to establish that that practice was widely accepted by the profession in question, his Honour (at [280]) considered that the question whether the existence of a defined established practice had been established was an incomplete enquiry because the focus of the section required the discernment of competent professional practice.

87. His Honour said that s 5O must allow for a range of circumstances that could be either competent or incompetent practices (see at [280]) (citing Sparks per Basten JA at [31]), with some scope for variations in practice, because the practice of medicine is both an art and a science (see at [282]). The primary judge said that findings on those matters were dependent on the underlying factual circumstances and the conclusions to be drawn from relevant aspects of the expert medical evidence on standards of practice (see at [281]) and that evidence as to what constitutes competent practice could arise in a variety of circumstances, including in the form of a recognised or published protocol or in a description given in oral evidence (see at [282]).

88. The primary judge considered that the approach taken by Professor Davis was plainly affected by the hindsight considerations embedded in the questions asked of him (see at [306]) (a criticism that the appellant says could not properly be made of Professor Davis’ subsequent report and which, in any event, the appellant here challenges by ground 3(b)); and his Honour said that in those circumstances he preferred and accepted Professor Sheridan’s opinion (to the effect that the respondent’s clinical and surgical management of the appellant was exemplary and in line with standard practice) and hence the respondent had established a complete defence against the claim under s 5O of the Civil Liability Act (see at [307]). This conclusion is the subject of challenge by the appellant (ground 1 of the amended grounds of appeal).

89. His Honour then turned to consider the remaining liability, causation and damages issues in the event that he were to be wrong in his conclusion as to the s 5O defence.

90. Issue 5 concerned the alleged breach of the duty of care. The primary judge noted that the case was fought (in a departure from the pleaded case) on the basis of a criticism of the pre-operative medical services (see at [313]), referring to the allegations of negligence particularised at [25] of the statement of claim; and said that two determinative focal points of argument were relied upon by the appellant as constituting the alleged breaches of the duty of care: first, the reasonableness of the decision to carry out surgery to the appellant’s lumbar spine; and, second, whether the thoracic lesion ought to have been diagnosed at an earlier time (see at [317]).

91. As to whether it was reasonable to carry out the lumbar surgery (a course taken after some initial hesitancy on the appellant’s part), the primary judge noted at the outset that a significant factor for consideration was the non-disclosure by the appellant of all of his neurological symptoms, and that the undisclosed symptoms – abnormal sensory symptoms on his right side and up to the level of his navel – had been shown to have been of considerable diagnostic significance; and, if disclosed, would have required consideration of whether the symptoms were due to a problem in the thoracic spine (see at [322]-[324]).

92. The primary judge accepted (at [326]) the respondent’s evidence that in his clinical evaluation he had dismissed the prospect of the appellant having a problem that had its origins higher up in his thoracic spine (in the absence of disclosure of that material symptom – that was only revealed to the neurologist, Dr Simon, in August 2015 in a different investigatory context).

93. The primary judge said (at [327]) that, pre-operatively, the respondent was in the position that: he had imaging evidence of an annular tear at L4/5 and an associated disc bulge in that area; a history of symptoms that were concordant with pathology at that level, and there was evidence of denervation; and said that, although the extent of the disc bulge was not great, the respondent’s training obviously made him aware of the potential mechanism for leakage of annulus pulposis material possibly to cause nerve root irritation by a chemical process of contact with extruded disc material thereby placing mechanical pressure onto a nerve or nerve root. His Honour considered that the respondent reasonably dismissed the possibility of a thoracic cause in the absence of symptoms that might have inculpated such a cause.

94. The appellant challenges the last two of those findings. Moreover, the appellant says that, even if accepted at face value, these findings are not sufficient: first, that it is speculation that the respondent’s training made him aware of the potential mechanism for leakage to cause nerve root irritation, saying that there was no evidence of this; and, second, that his Honour had moved onto a “chemical irritation theory of the case” rather than mechanical pressure on the nerve basis, which it is said is inconsistent with his Honour having appreciated during the course of the hearing that there had to be a finding as to whether there was nerve root compression for there to be a rational basis on which to offer the surgery (referring to the discussion on 16 July 2020 in the course of the concurrent expert evidence) (see at T 345.3-7).

95. The primary judge rejected the appellant’s suggestion that the respondent had “leapt” into the surgical option with undue haste (see at [33] of the primary judgment), having regard to the pursuit of conservative options for some nine months prior to the surgery.

96. At [331], his Honour said that, in the presence of the reported sensory losses to the right lower leg as described by the appellant, and a suspected denervating cause for those symptoms, the respondent was required to balance the potentially damaging risks associated with not operating against the potential risks associated with an operation; and said that those matters were properly canvassed with the appellant.

97. Accordingly, the primary judge found that the appellant did not satisfy the pre-requisites required by s 5B(1) of the Civil Liability Act to base a finding of negligence in respect of the decision to operate on the appellant’s lumbar spine. In particular, his Honour found that although there were not insignificant foreseeable risks of operating, the reasons given by the respondent for operating (supported by the expert opinion of Professor Sheridan) indicated that the respondent had acted reasonably in proceeding to the lumbar surgery (which he carried out with due skill and care) (see at [332]-[333] of the primary judgment).

98. As to the question whether there should have been an earlier diagnosis of the thoracic lesion, based upon Professor Davis’ opinion, the primary judge found that opinion to be unreliable “as it was infused with impermissible hindsight considerations” (see at [334]). His Honour considered that an earlier diagnosis could only have arisen if two essential conditions had prevailed: first, that the respondent had been made aware of the relevant symptom that had necessitated investigation of the thoracic spine some two years later (see at [336]-[337] of the primary judgment); and, second, the advent of an emergent clinical discordance between the appellant’s symptoms and imaging results when considered in terms of whether it was reasonable to infer a lumbar cause for the appellant’s sensory symptoms to the extent that he had disclosed them (see at [33]). As to the latter, at [339] his Honour said that there was a concordance, not discordance as explained by Professor Sheridan and that:

[i]n those circumstances, Dr Pope’s pursuit of a concordant lumbar diagnosis and the consequential recommendation for lumbar surgery was not only reasonable, but it accorded with widely held peer professional opinion amongst peers practising in Australia. More than that, Professor Sheridan described Dr Pope’s clinical management as exemplary.

99. Accordingly, the primary judge found that the appellant did not satisfy the pre-requisites required by s 5B(1) of the Civil Liability Act to base a finding of negligence in respect of the alleged failure to investigate the possibility of a thoracic lesion being responsible for the appellant’s symptoms (see at [340]). His Honour said (at [341]) in that regard that, in light of the absence of a report by the appellant of relevant symptoms that might suggest a thoracic cause, although the respondent foresaw the possibility thereof, the respondent reasonably dismissed it as insignificant; and therefore the investigatory precautions for which the appellant contended in relation to a thoracic cause did not relevantly arise on account of the non-disclosure.

100. Thus, his Honour concluded that the appellant had not made good his claim that the respondent was negligent in any of the manners alleged (see at [342]).

101. As to Issue 6, causation of harm, which his Honour again approached in the event that he were found to be wrong in respect of the s 5O defence and also against the possibility that he be found to be wrong on the question of negligence, this was considered from [344] of his Honour’s reasons. His Honour did so assuming, for the sake of argument, that the requirements for factual causation had been satisfied notwithstanding his findings to the contrary and noted that the remaining causation question concerned the scope of liability for any causally related damages incurred by the appellant (see at [345]-[346]).

102. The primary judge concluded that the appellant was unable to extend the scope of the argued liability to damages for the effects of the back surgery, including the additional localised pain which flowed from that surgery, in view of the clinical finding of a lumbar disc herniation in 2013 which demonstrated an impingement warranting surgery and the respondent’s conclusion (reasonable at the time) that the appellant’s symptoms were due to denervation (see at [347]-[349]).

103. As to the effects of a two year delay in the appellant having the thoracic surgery, his Honour noted that Professor Davis had indicated that there was insufficient data to enable this question to be addressed and that the issue was not clarified to the benefit of the appellant by the evidence of Professors Sheridan and Davis, especially where it was common ground that the thoracic tumour was slow growing (see at [351]-[352]). His Honour referred to the evidence of Dr Bentivoglio, a neurologist, and to the reports of Dr Steel and Dr Simon, but concluded that the medical evidence did not permit a reasoned non-speculative differential analysis that identified a level of thoracic related symptoms in 2013 and a different level in 2015 so as to enable a rational discernment of what might be considered to be a layer of symptoms compensable due to an argued delay; and hence the appellant had not satisfactorily discharged his onus of proof (see at [352]-[358]).

Grounds 1(a), (b), (c)

291. Although, as Ground 1(a) asserts, some of the evidence given by Dr Pope referred to by his Honour on this question in fact related to another question, (namely the practice of performing a local discectomy and removing a small portion of the nucleus pulposis content after performing an annulotomy), [16] that does not undermine his Honour’s acceptance of Professor Sheridan’s opinion. His Honour said:

“[297] Professor Sheridan considered that Dr Pope’s plan of management and treatment of the plaintiff, which he described to be exemplary, was considered to be standard care in the plaintiff’s presenting circumstances: Exhibit “B”, Vol 2, pp 371 – 374. He reiterated that view in his oral evidence: T368.9 – T368.22.

[298] Professor Sheridan’s statement to that effect was not the subject of direct contradiction, nor was its effect diluted in any material way by other evidence, whether written or oral.”

16. Primary judgment at [294]-[296].

292. As to Ground 1(b), while it is correct that the expert neurosurgeons agreed that lumbar surgery was not indicated in the absence of nerve root compression, there was evidence that Dr Pope thought such compression was present. The MRI performed on 23 October 2013 was reported by Dr Sebastian Fung, radiologist, as showing “a transitional lumbosacral junction with likely sacralisation of L5-S1; at L4-5, loss of disc height and signal, and “broad based mild disc protrusion”, with the following “comment”:

“There is a transitional lumbosacral junction. The L5-S1 disc is rudimentary. Nomenclature of disc levels is based upon the iliolumbar ligament and there is therefore an L4-5 degenerative disc protrusion.

There is no nerve root impingement. There is minimal to no lateral recess stenosis associated with the L4-5 disc protrusion. The foramina and canal are clear.”

293. Dr Pope did not agree with the radiologist that there was no nerve root compression; he reported to the referring general practitioner on 12 November 2013 that a steroid injection had given the appellant some good relief for a few weeks but that the symptoms had recurred, and (emphasis added): [17]

“The MRI did show a vestigial disc at L5/S1 and the disc herniation was described L4/5 with a right paracentral disc extrusion but no compression of neural structures. I beg to [differ] that there may be some compression of the nerve root which is L5 based on the report but clinically if it indeed is the L5/S1 level then it could be the S1 nerve root which is consistent with S1.”

17. In the original “defer” was used rather than “differ”; Dr Pope’s evidence that this was an error of transcription (see Tcpt, 24 June 2020, p 219(19)-(27) is consistent with the context.

294. Moreover, germane to the s 5O defence, as has been noted Professor Sheridan maintained that the MRI scan showed sufficient nerve root compression or impingement to warrant surgery, and that competent professionals in Dr Pope’s position would have adopted the same course in light of the presenting symptoms and clinical history. [18]

     18. Tcpt, 16 July 2020, pp 344(06)-(21), 345(30)-(41).

295. As to Ground 1(c), even if Professor Davis’ opinion were wrongly rejected on the basis that it was affected by hindsight, that would not undermine the s 5O defence. That is because, absent contradiction of Professor Sheridan’s opinion on the issue, the highest Professor Davis’ opinion could reach would be to establish – as Professor Sheridan and Dr Pope accepted – that the question of whether or not to recommend surgery in the circumstances was one on which there would be range of views among neurosurgeons. As the trial judge explained:

“[297] The evidence of Professor Davis, which suggested a different clinical pathway for investigation, including investigating whether there was another explanation for the plaintiff’s symptoms due to the possibility of a problem located at a higher level in the spine before undertaking lumbar surgery, was based on his personal approach.”

296. There is no explicit challenge to his Honour’s acceptance of Professor Sheridan’s evidence in this respect. While Professor Davis, enjoying the benefit of hindsight, said that he would have suspected a thoracic cause (although not only Dr Pope, but every other medical professional who saw the appellant before August 2015, did not do so), he did not say that no reasonably competent neurosurgeon in Dr Pope’s position could have proceeded as he did. That Professor Davis’ personal approach was different does not deny that the evidence, in particular that of Professor Sheridan, established that the manner in which Dr Pope acted was widely accepted by peer professional opinion as competent professional practice.

Ground 1(d) – the “practice” point

297. The complaint in Ground 1(d) – to the effect that a defence under s 5O was not available in the absence of proof of a particular existing practice which Dr Pope claimed to be applicable in the circumstances – is founded on what was said by Macfarlan JA in McKenna v Hunter and New England Local Health District. [19] His Honour, with whom Beazley P, as her Excellency then was, agreed, held that in order to enliven the application of s 5O, a “practice” existing at the time of the conduct must be identified: [20]

“[160] To establish a defence under s 5O a medical practitioner needs to demonstrate, first, that what he or she did conformed with a practice that was in existence at the time the medical service was provided and, secondly, to establish that that practice was widely, although not necessarily universally, accepted by peer professional opinion as competent professional practice. [Emphasis as per original]

[161]   One can see in the facts of the cases that I have mentioned the possibility that what was done accorded with a practice. For example, there may well have been a practice in some part of the profession, in Bolam to use electro-convulsive therapy to treat depression; in Sidaway to give or not to give a warning of risks in respect of the type of spinal operation in question; in Rogers v Whitaker to give or not to give a warning of risks in respect of the type of eye operation conducted on the plaintiff and in Dobler  to refer or not refer a patient for an ECG and/or to a cardiologist on detection of a heart murmur.”

…

[165]   In summary, the section is directed to something, namely a practice, that was in existence at the relevant time, here July 2004. Whilst at that time there were no doubt many practices in the medical profession concerning the manner in which operations were performed, the types of treatments that were administered, the circumstances in which tests were ordered, the circumstances in which warnings were given and other matters, the evidence here did not identify any such practice that was relevant in the present case. In light of the wide variety of circumstances bearing upon the decision to discharge Mr Pettigrove, it would have been surprising if it had done so. It is unlikely, to say the least, that there would have occurred in or before 2004 a number of situations in which there were sufficient features in common with the present case to enable it to be said that there was a practice concerning how such a situation was to be dealt with by a competent medical practitioner.”

19. [2013] NSWCA 476 (“McKenna”); reversed on other grounds in Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44.

20. McKenna at [160].

298. McKenna was overturned by the High Court on the ground that there was no relevant duty of care; accordingly, no question arose under s 5O. [21] However, in Sparks v Hobson, [22] this Court by majority rejected a submission that McKenna was wrong in holding that it was necessary to demonstrate the existence of an extant “practice”. Basten JA, while accepting that McKenna may well sufficiently describe many circumstances in which the defence is invoked, did not consider it to establish a general proposition, and if it did, would not have followed it. His Honour said: [23]

“[31]   Although it is uncertain how this reasoning in McKenna will operate in particular cases, there is a risk in reformulating the statutory language. To speak of “a practice” adopted by a group of professional persons suggests a regular course of conduct adopted in particular circumstances. By contrast, the phrase “competent professional practice” is apt to cover the whole gamut of professional services provided by the practitioner, whether or not the particular circumstances have arisen sufficiently often to result in an established practice. For example, although opinions may differ as to the conclusion to be drawn, there is no grammatical or semantic difficulty in describing an argument run by counsel in a novel case as demonstrating competent or incompetent professional practice. The same judgment may be offered about the failure of counsel to call a defendant in a criminal trial, where no settled practice exists. Where an acquittal depends on establishing an affirmative defence and there is no other evidence to support the defence, it may be described as incompetent professional practice not to call the defendant who could have given such evidence. Where an opinion is given and challenged, it will be supported (or attacked) not by reference to some established practice, but by reference to how an assessment of the circumstances (which may be unique) would be undertaken by a knowledgeable and experienced practitioner.

[32]   There are other reasons for thinking that the reference to “competent professional practice” does not require evidence of “a practice”. First, it is the “manner” in which the defendant acted which must be the focus of the opinion. Secondly, if it were necessary to establish a practice, one might expect subs (3) to refer to “opinions … concerning that practice”, rather than “opinions … concerning a matter”.

[33]   To take an example closer to the present case (but still hypothetical) an anaesthetist might allow an operation to proceed on the basis that two indicators remained within acceptable limits but a third indicator did not. An expert might express an opinion that such conduct was not competent practice, not because he or she had experienced the same circumstance in the past, or had read about it in a textbook, but because basic principles of human physiology led to that conclusion.

[34]   Accordingly, although the language used in McKenna may well sufficiently describe many circumstances in which s 5O is invoked, I would not understand it as a general proposition as to the constraints imposed by s 5O(1).

[35] If that understanding is too restrictive and it is necessary to go further, I would not follow McKenna. The decision in McKenna having been overturned in the High Court, the reasoning of the majority in this Court is no longer binding. …”

21. Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 at [34]-[35].

22. Sparks v Hobson; Gray v Hobson [2018] NSWCA 29; (2018) 361 ALR 115 (“Sparks”).

23. Sparks at [31]-[33].

299. Macfarlan JA, restating the views his Honour had expressed in McKenna, reasoned from the use in s 5O of the past tense (in the words “at the relevant time … was widely accepted”) that the relevant opinion must have been in existence and widely accepted, at the time of the conduct in question (emphasis added): ^[24]

“[211]   Section 5 O uses the past tense (“at the relevant time … was widely accepted”) to refer to the relevant peer professional opinion. Thus, the opinion about the manner in which the defendant acted must have existed, and been widely accepted, at the time the conduct occurred. It is not enough that experts called to give evidence consider that the conduct was reasonable and that it would have been so regarded by other professionals if they had been asked about it at the time of the conduct.”

24. Sparks at [211].

300. His Honour said that expert evidence that says no more than that the expert considers the defendant to have acted reasonably, and in a way that would be widely regarded as acceptable, is insufficient to establish the existence of a “practice” for the purpose of s 5O (emphasis in original): [25]

“[220]   My comments concerning Dr Forrest’s evidence on this topic are equally applicable to that of Dr Manasiev. Whilst Dr Manasiev gave reasons as to why he thought that the conduct was reasonable, he did not point to any particular practice. Expert evidence that says no more than that the expert considers the defendant to have acted reasonably, and in a way that would be widely regarded as acceptable, is insufficient to establish the existence of a “practice” for the purpose of s 5 O. Accordingly, as the primary judge held, s 5 O does not exempt Dr Sparks from liability for his negligence.”

25. Sparks at [218], [220].

301. Simpson JA doubted the correctness of McKenna, but considered herself bound by the decision: [26]

“[332]   I consider that I am obliged to accept McKenna (in this Court) as stating the prevailing construction of s 5O: Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 at [277]-[279]. But for that constraint, I would have considered that the language of s 5O makes it plain that “competent professional [here, medical] practice” is intended to denote “the practice of a profession [here, medicine]”, and not a specific practice or method of providing the professional services in question. That construction is supported by the absence of the indefinite article in conjunction with “professional practice”, and the use instead of the adjective “competent”, which to my mind signifies professional practice in a general sense, rather than an identifiable, specific, and discrete aspect of the profession or method of providing the professional service.

[333]   As construed in McKenna, s 5O can apply only in limited circumstances, where the defendant can, or seeks to, identify a discrete practice to which he or she conformed. It necessarily excludes unusual factual circumstances, such as occurred in McKenna, and such as occurred in the present case. It does not appear to me that s 5O was intended to have such limited application. However, as I have said, I consider myself constrained to follow and apply that decision.”

26. Sparks at [332]-[333].

302. It is in that state of precedent in this Court that the issue now falls for consideration by an enlarged bench.

The Ipp Report

303. Section 5O was inserted as a result of a recommendation of the Review of the Law of Negligence (the Ipp Report). [27] In response to a term of reference which required the review to “develop and evaluate options for a requirement that the standard of care in professional negligence matters (including medical negligence) accords with the generally accepted practice of the relevant profession at the time of the negligent act or omission”, [28] the Review Panel (“the Panel”) identified as the principal controversy “whether the court should be the ultimate arbiter of the standard of care or whether it should defer to some designated body of opinion within the medical profession”, explaining: [29]

“Until Rogers v Whitaker (1992) 175 CLR 479, it was thought by many that the law on this question in Australia was embodied in the so-called ‘Bolam rule’, although courts had expressed reservations about its application in Australia. The rule derives from a famous statement by McNair J in the English case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582:

a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art … merely because there is a body of opinion that would take a contrary view.”

27. D A Ipp (Chairman), Review of the Law of Negligence Report (Ipp Report), 2 October 2002. The Ipp Report addresses this issue at [3.1]-[3.31] and in Recommendation 3.

28. Ipp Report, Term of reference 3(d).

29. Ipp Report at [3.2].

304. The Panel noted that there was a significant body of opinion, especially among the medical profession, which favoured reinstating the Bolam rule in its original form, but formed the view that it should recommend its reintroduction only in a modified form. [30] After explaining the then current position that courts were never required to defer to expert opinion and that it was always for the court to decide what the test of reasonable care requires in a particular case, the Panel contrasted this with the Bolam rule: [31]

“By contrast, the traditional Bolam rule requires courts to defer to responsible medical opinion, so that if the defendant acted in accordance with a responsible body of expert opinion, the court cannot decide that the defendant acted without reasonable care.”

30. Ipp Report, at [3.5]. The rule, further explained below, takes its name from the direction given by McNair J to the jury in the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; [1957] 1 WLR 582.

31. Ipp Report at [3.6].

305. The Panel observed that it was a common objection to the “Bolam” rule that it afforded too much weight to opinions that might be extreme and held by only a very few practitioners, “or by practitioners who (for instance) work in the same institution and so are unrepresentative of the views of the larger body of practitioners”; and also that the Bolam rule gave added importance to the influence of so-called “rogue experts”. [32] The Panel concluded that such cases indicated that strict application of the Bolam rule could produce unacceptable results, the main weakness of the rule being that it allowed small pockets of expert opinion to be arbiters of the applicable standard of care, even where a substantial majority would take a different view. [33] The modified form of the rule recommended by the Panel, defining the relevant body of opinion as one “widely held by a significant number of respected practitioners in the relevant field”, was intended to filter out idiosyncratic opinions, and to ensure that the opinion was one which deserved to be treated as soundly based: [34]

“If it were thought right to require courts to defer to expert medical opinion relating to the standard of care applicable to medical treatment, the Panel’s view is that the rule for determining the standard of care in all cases in which a medical practitioner is alleged to have been negligent in providing treatment to a patient should be as follows: ‘A medical practitioner is not negligent if the court is satisfied that the treatment provided was in accordance with an opinion widely held by a significant number of respected practitioners in the relevant field’.”

32. Ipp Report at [3.8].

33. Ipp Report at [3.11].

34. Ipp Report at [3.12]-[3.16].

306. Then, to clarify for more abundant caution that a court would be justified in not deferring to medical opinion if it was irrational, it proposed the addition of a proviso, “unless the court considers that the opinion was irrational’. [35] Accordingly, the ultimate recommendation was that: [36]

“In the Proposed Act, the test for determining the standard of care in cases in which a medical practitioner is alleged to have been negligent in providing treatment to a patient should be:

(a)   A medical practitioner is not negligent if the treatment provided was in accordance with an opinion widely held by a significant number of respected practitioners in the field, unless the court considers that the opinion was irrational.”

35. Ipp Report at [3.17]-[3.20].

36. Ipp Report, Recommendation 3.

307. Relevantly for present purposes, in elaborating the advantages of that recommendation, [37] the Panel explained (emphasis added):

[3.22] The recommended rule recognises, first, that there might be more than one opinion widely held by a significant number of respected practitioners in the field. It provides a defence for any medical practitioner whose treatment is supported by any such opinion, provided the court does not consider it irrational. It would not be for the court to adjudicate between the opinions.

37. Ipp Report at [3.21]-[3.24].

308. Notably, the Panel’s recommendation and reasoning did not utilise, or even refer to, the notion of an “accepted practice”.

309. It is true that Parliament did not precisely enact that recommendation, but its substance is reflected in the statute, which relevantly provides: [38]

(1)   A person practising a profession (a professional) 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.

(2)   However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

38. Civil Liability Act 2002 (NSW), s 5O.

310. While the statute, unlike the recommendation, refers to “competent professional practice”, that clarified the requisite content of the relevant opinion; it still required that the professional’s “manner of acting” be measured against then current peer professional opinion as to whether it was “competent professional practice”. It did not stipulate that the professional must have acted in accordance with an extant practice.

The Bolam test

311. The original Bolam test was explained by the High Court in Rogers v Whitaker [39] in the terms which had been used in Lord Scarman’s dissenting judgment in Sidaway v Board of Governors of Bethlem Royal Hospital: [40]

“The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.”

39. (1992) 175 CLR 479 at 484; [1992] HCA 58 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ).

40. [1985] AC 871; [1985] 1 All ER 643.

312. Unlike s 5O, so stated the test refers to a doctor having acted “in accordance with a practice accepted at the time as proper …”. As has been noted, [41] Macfarlan JA in McKenna provided illustrations of cases in which the possibility that what had there been done “accorded with a practice” had been considered, identifying extant practices. [42] However, while it will often be the case that there is an existing practice (or several practices), I do not understand that the Bolam test, notwithstanding that it explicitly refers to acting “in accordance with a practice”, required proof of a particular pre-existing professional practice; rather, it involved showing that the defendant had acted in a manner which was accepted as proper at the time by a responsible body of medical opinion – or, in substance, that a responsible body of medical practitioners in the same circumstances would have acted in the same manner. This is well illustrated by Maynard v West Midlands Regional Health Authority,[43] in which two consultants employed by the defendant health authority, who were treating the plaintiff for a chest complaint, thought she was suffering from tuberculosis, but also considered it possible that she might be suffering from Hodgkin’s disease. So, before obtaining the result of a test which would have determined whether she was suffering from tuberculosis, they decided to perform an exploratory operation to determine whether she was suffering from Hodgkin’s disease. The operation showed her in fact to be suffering from tuberculosis and not Hodgkin’s disease. However, as a result of the operation she suffered damage to a nerve affecting her vocal cords which caused her speech to be impaired, this being an inherent risk of the procedure. The plaintiff claimed that the consultants had been negligent in deciding to carry out the operation before obtaining the result of the tuberculosis test. At the trial, expert medical evidence was called on both sides as to whether the operation should have been performed. The judge preferred the plaintiff’s expert evidence and gave judgment to the plaintiff. The Court of Appeal reversed, holding that there had been no negligence. The plaintiff’s further appeal to the House of Lords failed. Lord Scarman said: [44]

“The present case may be classified as one of clinical judgment. Two distinguished consultants, a physician and a surgeon experienced in the treatment of chest diseases, formed a judgment as to what was, in their opinion, in the best interests of their patient. They recognised that tuberculosis was the most likely diagnosis. But in their opinion, there was an unusual factor, viz swollen glands in the mediastinum unaccompanied by any evidence of lesion in the lungs. Hodgkin’s disease, carcinoma, and sarcoidosis were, therefore, possibilities. The danger they thought was Hodgkin’s disease; though unlikely, it was, if present, a killer (as treatment was understood in 1970) unless remedial steps were taken in its early stage. They therefore decided on mediastinoscopy, an operative procedure which would provide them with a biopsy from the swollen gland which could be subjected to immediate microscopic examination. It is said that the evidence of tuberculosis was so strong that it was unreasonable and wrong to defer diagnosis and to put their patient to the risks of the operation. The case against them is not mistake or carelessness in performing the operation, which it is admitted was properly carried out, but an error of judgment in requiring the operation to be undertaken.

A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that theirs was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken it was reasonable in the sense that a responsible body of medical opinion would have accepted it as proper. I do not think that the words of the Lord President (Clyde) in Hunter v Hanley 1955 SLT 213 at 217 can be bettered:

‘In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men … The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care …’ ”

41. Above at [297].

42. McKenna at [161].

43. [1985] 1 All ER 635.

44. [1985] 1 All ER 635 at 638. Cited with approval in Belknap v Meakes (1989) 64 DLR (4th) 452 at 473-475 (BCCA); Ratty v Haringey Health Authority [1994] 5 Med LR 413 at 416 (CA); Dunne v National Maternity Hospital [1989] IR 91 at 109 (SC Ire); Kaban v Sett [1994] 1 WWR 476 at 479-80 (Man, QB), affd [1994] 10 WWR 620 (Man, CA); Heyman v Board of Management of Royal Perth Hospital (1995) 14 SR (WA) 14 at 17 (Jackson DCJ); Smit v Brisbane South Regional Health Authority [2002] QSC 312 at [68]-[69] (Muir J).

313. That was not a case where there was any extant particular practice, but one in which there were competing bodies of professional opinion as to whether the conduct of the consultants was, according to the standards of the time, competent. That, as I understand it, is what is contemplated by the reference in Bolam to acting “in accordance with a practice”. Similarly, in Ratty v Haringey Health Authority,[45] the Court of Appeal, having endorsed as the relevant test whether the defendant had “taken a decision or adopted a course that no surgeon exercising the proper care and skill appropriate to his expertise and specialist qualifications would have taken or adopted”, considered that the evidence of two responsible and respectable experts as to how they would have responded to the same circumstances as confronted the defendant engaged the Bolam test. Kennedy LJ said that it was important “once it was accepted that [the defendants’ expert witnesses] represented a responsible and respectable body of colo-rectal opinion, to accept without qualification their [evidence] when evaluating the conduct of the … defendant”.

     45. [1994] 5 Med LR 413 at 416 (Kennedy LJ; Balcombe and Evans LJJ agreeing).

The s 5O test

314. In any event, whatever was the position under Bolam, in my opinion that is now clearly the case under s 5O. The question posed by s 5O is whether “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”. This requires identifying the manner in which the professional acted, and asking whether it was at the time widely accepted as competent professional practice. The “manner” refers to what the doctor did. The statute does not refer to “accepted practice”. The absence of the indefinite article before competent professional practice tells against the reference being to a particular identifiable subsisting practice. So does the reference to “manner”. In my opinion, professional practice in this context refers to the manner in which professionals practise their profession, not to a particular protocol, procedure or process. “Competent professional practice” refers to what a significant body of competent professionals would have done. The past tense “was” is used, not to refer to a subsisting practice, but to highlight that the judgment is to be made as at the time of the relevant conduct, not with the benefit of hindsight in the light of more recent medical advances. If what the doctor did (that is, the manner in which he or she acted) accorded with what by the standards of the time a significant body of peer professionals would in the same circumstances have done, the requirement of the section is satisfied and the doctor was not negligent.

315. This view of the provision has been adopted in Victoria, in respect of s 59 of the Wrongs Act 1958 (Vic), which is relevantly in the same terms as s 5O(1). In Grinham v Tabro Meats Pty Ltd; Victorian WorkCover Authority v Murray,[46] the defendant general practitioner pleaded the s 59 defence. Forrest J said: [47]

“I do not think it is necessary for Dr Murray to establish, as counsel for Tabro suggested, that her fellow practitioners have, in their practices, acted in the same way as Dr Murray in a similar situation. For instance, in this case not recalling a patient who has been sent off for re-testing after returning a low positive and subsequently failing to return to the clinic. Peer professional opinion is directed to acceptance or otherwise of the manner in which a professional acted in the circumstances confronting the defendant. It is to this issue that the opinions of the other professionals in the field are directed. It may be that in some cases an opinion is based upon a hypothetical analysis rather than one actually encountered in practice. Whilst this factor may go to the quality of the opinion expressed, what matters is the opinion of the other professionals as to the way in which the defendant carried out or failed to carry out the professional tasks impugned in the proceeding.”

46. Grinham v Tabro Meats Pty Ltd; Victorian WorkCover Authority v Murray [2012] VSC 491.

47. Grinham at [181].

316. More recently, in Boxell v Peninsula Health,[48] Keogh J adopted the construction which, unconstrained by authority, Simpson JA would have favoured in Sparks:

     48. Boxell v Peninsula Health [2019] VSC 830 at [33]-[34].

“[30] Section 59 of the Act was intended to introduce a modification of the Bolam principle [Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, 587], which was stated by Lord Scarman in Sidaway v Governors of Bethlehem Royal Hospital [[1985] AC 871] as follows:

‘The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment [Ibid 881].’

[31] There are three elements which a defendant must establish to rely on s 59(1). First, that the defendant is a professional. Usually this will not be contentious.

[32] Second, a standard of care, namely competent professional practice in the circumstances. Usually a defendant will call one or more professionals who practice in the field to establish a standard of competent professional practice. It is unlikely to be sufficient that the experts who give evidence themselves subscribe to the standard. The evidence must establish peer professional opinion, that a standard of care is widely accepted by a significant number of respected professionals in the field in Australia as competent professional practice in the circumstances. If established, peer professional opinion determines the standard of care which applies for the purposes of s 59(1) of the Act.

[33]   Third, that the defendant acted in a manner which satisfied the standard of competent professional practice. This is a question of fact determined on all of the evidence.

[34] The text of s 59(1) does not speak of ‘a practice’. A standard of competent professional practice in the circumstances is not limited to a specific practice, and may cover professional practice in a more general sense [Sparks 187 [332] (Simpson JA)]. However, it remains necessary for a defendant to establish a standard of care which was widely accepted in Australia at the time as competent professional practice responding to the particular circumstances in which the service was provided [Grinham 53 [190]–[191]]. In Grinham, J Forrest J referred to the problems of proof inherent in the application of s 59(1) [Ibid 52 [187]]. Where a defendant has responded to circumstances which involve a variety of factual considerations, or call for a series of subjective judgments, it may be difficult to prove a standard of response which was widely accepted at the time as competent professional practice by a significant number of respected professionals across Australia who do not themselves give evidence.”

317. For the above reasons, and those given by Basten JA and Simpson JA in Sparks, s 5O does not in my opinion require proof of a specific pre-existing practice. It is engaged by evidence that, in the same circumstances, a substantial body of peer professional opinion would have considered the manner in which the defendant acted to be competent professional practice. Evidence that a substantial body of competent professional peers would in the same circumstances have acted in the same way will, at least generally speaking, have that effect.

Conclusion

318. Ground 1 therefore fails. As the consequence is that Dr Pope’s defence under s 5O is sustained, the appellant’s claim was rightly dismissed. It is unnecessary to consider the other grounds of appeal.

319. I agree with the orders proposed by Ward P.

**********

Endnotes

Amendments

15 December 2022 - Minor typographical amendments

Decision last updated: 15 December 2022