Dean v Pope

[2021] NSWDC 670

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Dean v Pope [2021] NSWDC 670

Hearing dates:

22, 23, 24 & 25 June, 16 & 23 July, 7 August, 4, 11 & 17 September, 3 & 11 December 2020; 10 March 2021

Date of orders:

13 December 2021

Decision date:

13 December 2021

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the defendant;

2. The plaintiff is to pay the defendant’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – medical treatment – neurosurgery – finding that treating neurosurgeon acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice – defence established pursuant to s 5O of Civil Liability Act 20021 – claim of negligence not proven – claim of causation not proven; DAMAGES – damages assessed at $611,850 – failure of plaintiff’s solicitor to prove claim for out-of-pocket expenses

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5E, s 5O, s 13, s 16

Uniform Civil Procedure Rules 2005 (NSW), Sch 7

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

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

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

Glen v Sullivan [2015] NSWCA 191

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48

Leotta v Public Transport Commission of NSW (1976) 9 ALR 437; 50 ALJR 666

Lowns v Woods (1996) Aust Torts Reports 81 – 376

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

Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5

Paff v Speed (1961) 105 CLR 549

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58

Penrith City Council v Parks [2004] NSWCA 201

Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1, [2015] NSWCA 90

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42

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

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

Sparks v Hobson [2018] NSWCA 29

State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536

Sydney South West Area Health Service v MD [2009] NSWCA 343

Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62

Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12

Watson v Foxman & Ors (2000) 49 NSWLR 315

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Category:

Principal judgment

Parties:

Paul Rory Dean (Plaintiff)
Raoul Pope (Defendant)

Representation:

Counsel:
Mr M Cranitch SC with Mr A Campbell (Plaintiff)
Mr R Cheney SC (Defendant)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s):

2018/363440

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1] – [3]
Claim	[4]
Defences	[5] – [6]
Summary of outcome	[7]
Facts not in dispute	[8] – [22]
Central factual issue in dispute	[23] – [28]
Issues calling for decision	[29]
Evidence overview	[30] – [35]
Credibility and reliability of testimony	[36] – [62]
The plaintiff	[42] – [52]
Ms Marquardt	[53]
Consultant expert neurosurgeons	[54] – [56]
Dr Pope	[57] – [62]
Summary of Dr Pope’s evidence	[63]
General overview of array of expert evidence category	[64] – [72]
First category – neurosurgeons	[65]
Second category – radiologists’ opinions	[66] – [69]
Third category – other neurological opinions	[70]
Fourth category – forensic psychiatrists	[71]
Fifth category – miscellaneous damages reports	[72]
Evidence from expert neurosurgeons	[73] – [100]
First report of Professor Davis – 9 September 2019	[74] – [78]
Second report of Professor Davis – 16 April 2020 (not read)	[79]
Third report of Professor Davis – 1 May 2020 (not read)	[80]
Fourth report of Professor Davis – 6 August 2020	[81] – [82]
First report of Professor Sheridan – 27 May 2019	[83] – [87]
Second report of Professor Sheridan – 27 April 2020	[88] – [89]
Third report of Professor Sheridan – 29 May 2020	[90] – [91]
Joint report – 9 June 2020	[92] – [93]
Fourth report of Professor Sheridan – 3 August 2020	[94]
First concurrent evidence session – 16 July 2020	[95] – [97]
Second concurrent evidence session – 23 July 2020	[98]
Third concurrent evidence session – 17 September 2020	[99]
Fourth concurrent evidence session – 3 December 2020	[100]
Reports from consultant radiologists	[101] – [108]
Report of Dr Bowden – 30 November 2019	[102]
Report of Dr Jones – 30 April 2020 and 20 May 2020	[103] – [108]
Reports from other neurosurgeon/neurological specialists	[109] – [120]
Report of Dr Bentivoglio – 16 October 2017	[110] – [115]
Report of Dr Simon – 26 June 2019	[116] – [120]
Issue1 – Findings on relevant factual matters	[121] – [266]
(1) Plaintiff’s background circumstances	[123] – [125]
(2) Onset of significant symptoms	[126] – [130]
(3) Consultation with Dr Lam – neurosurgical referral to Dr Pope	[131] – [134]
(4) First consultation with Dr Pope – 15 October 2013	[135] – [158]
(5) Investigations ordered by Dr Pope	[159] – [161]
(6) Second consultation with Dr Pope – 12 November 2013	[162] – [185]
(7) Physiotherapy with Mr Kelly – 13 January 2014	[186] – [191]
(8) Deferral of lumbar surgery in March 2014	[192]
(9) Lumbar surgery by Dr Pope on 16 June 2014	[193] – [196]
(10) Post-operative course	[197] – [204]
(11) Exacerbating incident – A fall on 25 August 2014	[205] – [207]
(12) Continuing problems & further consultations with Dr Pope	[208] – [215]
(13) Second specialist opinion from Dr Steel	[216] – [227]
(14) Referral to Dr Simon	[228] – [235]
(15) Plaintiff’s last consultation with Dr Pope – 12 August 2015	[236] – [252]
(16) Thoracic surgery performed by Dr Steel – 15 September 2015	[253] – [254]
(17) Further medical follow-up	[255] – [258]
(18) Plaintiff’s residual problems	[259] – [266]
Issue 2 – Relevant risk of harm	[267] – [269]
Issue 3 – Duty of care, scope and content	[270] – [274]
Issue 4 – Defence pursuant to s 5O of CL Act	[275] – [308]
Issue 5 – Breach of duty of care and negligence	[309] – [343]
Issue 6 – Causation of harm	[344] – [367]
Issue 7 – Assessment of damages	[368] – [396]
Disposition	[397]
Orders	[398]

Nature of case

1. These professional negligence proceedings claiming damages for personal injury are brought by the plaintiff, Mr Paul Rory Dean, against the defendant, Dr Raoul Pope, his treating neurosurgeon.

2. With the benefit of hindsight, the plaintiff claims that in 2013 and 2014, Dr Pope inadequately assessed his presenting symptoms. He claims this led to an unnecessary operation being performed on his lumbar spine. The plaintiff is aggrieved by the outcome of that surgery.

3. The central question to be determined in these proceedings is whether those claims can be sustained on a prospective analysis of the known factual circumstances. The proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW) (“CL Act”).

Claim

4. The plaintiff’s claim is that his presenting neurological symptoms, which he identified to Dr Pope as comprising abnormal sensory symptoms in his right lower limb, which were considered to have been referred from his spine, were inadequately assessed. He claims that inadequate assessment led Dr Pope to recommend the plaintiff have surgery to his lumbar spine. He claims that a proper assessment ought to have revealed the presence of a bony tumour in the thoracic spine, which required surgery at the level T5/6, and not the surgery which Dr Pope performed at the level L4/5.

Defences

5. Dr Pope denies he was in any way negligent. He claims that his assessment, treatment, and management of the plaintiff’s presenting sensory problems, to the extent disclosed to him, was in accordance with peer professional practice that was at the time widely accepted in Australia: s 5O of the CL Act.

6. Initially, Dr Pope relied upon a limitation defence claiming the proceedings were brought out of time. Dr Pope no longer relies upon that defence.

Summary of outcome

7. Following my analysis of the factual evidence, the contemporaneous medical records, the expert medical evidence adduced by the parties, and the submissions of the parties, for the detailed reasons that follow, at length, I have concluded that the plaintiff’s claim cannot succeed on the liability and causation issues. Lest I be found to have erred in that conclusion, in accordance with convention, and to the extent permitted by my findings, I have identified the damages that would otherwise have been assessable, in the sum of $611,850.

Facts not in dispute

8. The undisputed background facts can be stated as follows.

9. The plaintiff, a surveyor, is presently aged 31 years. In September 2013, when he was aged 25 years, after experiencing a period of awareness of evolving sensory symptoms in his right lower limb over the course of some months, he consulted his general practitioner for those problems. His general practitioner referred him for CT imaging studies of his lumbar spine. Those tests were reported as revealing an annular tear of his L4/5 intervertebral disc. The plaintiff’s general practitioner then appropriately referred him for neurosurgical assessment and management of those problems.

10. Pursuant to that referral, the plaintiff first consulted Dr Pope on 15 October 2013. No definitive diagnosis was made at that time, but Dr Pope foreshadowed that the plaintiff might ultimately have to proceed to surgery. Dr Pope recommended the plaintiff have a CT guided right sided S1 peri-neural steroid injection. On 21 October 2013, that procedure was performed by a radiologist. Ultimately, that procedure did not provide the plaintiff with significant or lasting relief from his symptoms. On 23 October 2013, at the suggestion of Dr Pope, the plaintiff also underwent an investigatory MRI study of his lumbar spine.

11. On 12 November 2013, the plaintiff consulted Dr Pope for a second time. Dr Pope considered the plaintiff’s responses to treatment as well as the results of radiological imaging studies. He recommended to the plaintiff that he have physiotherapy. He subsequently also recommended to the plaintiff that he should have surgery to his lumbar spine for an L4/5 decompression, microdiscectomy, and nerve root rhizolysis.

12. The plaintiff was hesitant and afraid to have surgery. Initially, he deferred it, for that reason, and because he did not want to take more time away from his work. Ultimately, he consented to having the surgery recommended by Dr Pope.

13. On 16 June 2014, Dr Pope carried out the described procedures at Concord Hospital. Following that surgery, the plaintiff did not experience any material relief from his pre-operative symptoms. As a consequence of that surgery, the plaintiff began to experience some additional symptoms, including localised lower back problems, and gluteal pain, which he related to that lumbar surgery.

14. The plaintiff saw Dr Pope on a total of 11 consultations, two being pre-operative consultations, and nine being post-operative consultations.

15. The effect of the post-operative consultations was that Dr Pope recommended to the plaintiff that he continue with physiotherapy treatment, and that he observe lifting and carrying restrictions in his work as a surveyor.

16. By March 2015, the plaintiff was becoming increasingly concerned about the correctness of Dr Pope’s pre-operative diagnosis in view of the continuation of his pre-operative symptoms. He therefore sought a further neurosurgical opinion. He consulted Dr Timothy Steel, who arranged for him to have another MRI scan to exclude the possibility of a sciatic nerve entrapment or piriformis syndrome. Dr Steel also arranged for the plaintiff to see Dr Neil Simon, a consultant neurologist, for further diagnostic evaluation and investigation of his symptoms.

17. The neurological and the further MRI investigations undertaken by Dr Simon involved a higher level of the plaintiff’s spine. These investigations revealed the plaintiff had a large bony tumour, also described as an exostosis, that impinged upon and compressed his spinal cord at the level T5/6. A consideration of the accumulated results of subsequent investigations then revealed that tumour to be the cause of the plaintiff’s original presenting symptoms for which he had been referred to Dr Pope.

18. The plaintiff claims that if, at the outset, Dr Pope had appropriately assessed, considered, and investigated his presenting signs and symptoms, this ought to have led to additional pre-operative neurological investigations of the kind undertaken by Dr Simon.

19. The plaintiff claims that the pursuit of a diagnostic pathway along those lines would in turn have led to an earlier diagnosis of the bony tumour at T5/6. He claims that in such circumstances, a different surgical procedure would then have been recommended and performed on his thoracic spine at the level T5/6, rather than the one which was carried out on his lumbar spine at the level L4/5, and this would have resulted in less deleterious consequences for him.

20. Aspects of the above summary of the undisputed factual background will be examined in greater detail in the course of identifying the factual findings that emerge from a closer examination of the evidence.

21. The harm claimed by the plaintiff is that he incurred a delayed diagnosis and delayed surgery in respect of his T5/6 spinal tumour. He claims such delays resulted in a progression of avoidable neurological damage, which would not have otherwise occurred had he received appropriate and timely treatment. He claims that the surgery to his lumbar spine was unnecessary. He also claims he has needlessly incurred the additional adverse effects of the lumbar surgery that was carried out at the level L4/5.

22. The consideration of those claims requires the analysis of a large bulk of extensive medical material and reports that will be referred to where it becomes relevant to do so.

Central factual issue in dispute

23. The central factual matter at issue in these proceedings in relation to the plaintiff’s claim of negligence is whether his lower limb symptoms, as they were presented to Dr Pope, were adequately considered and investigated before Dr Pope proceeded to recommend and arrange L4/5 decompression, discectomy, and nerve root rhizolysis surgery on his lumbar spine.

24. The plaintiff seeks to make a case that Dr Pope had incautiously proceeded to lumbar surgery with undue haste, without beforehand arranging for a specialist neurological examination, and without first proceeding to consider and pursue a diagnosis that definitively explained the presenting right lower limb symptoms.

25. The plaintiff claims that if Dr Pope had proceeded with due caution, as argued, he should have been referred to a specialist consultant neurologist for assessment before surgery. He claims that if the suggested course had been followed, a consultant neurologist would most probably have conducted tests of the kind ordered by Dr Simon almost 2 years later, which would, at an earlier time, have revealed the plaintiff’s problem to be a T4/5 spinal cord stenosis due to the growth of a bony tumour at that level, with less damaging consequences.

26. Both parties obtained expert evidence from consultant neurosurgeons on the question of whether Dr Pope had adequately discharged his duty of care to the plaintiff, and on the ensuing causation question. The respective opinions of those experts were in disagreement on the question of whether lumbar surgery was indicated for the plaintiff’s symptoms that were presented to Dr Pope for his assessment and management.

27. The plaintiff retained Professor Gavin Davis, who in effect supported the claim that Dr Pope had inappropriately proceeded to surgery with undue haste and inadequate investigation. The defendant retained Professor Mark Sheridan, who supported Dr Pope’s defence that he had acted appropriately, in exemplary accordance with peer professional practice.

28. The analysis and resolution of the areas of disagreement within the expert evidence is dependent upon a prospective interpretation and characterisation of the plaintiff’s pre-operative presenting symptoms as they evolved, and how they were presented to Dr Pope, in conjunction with a consideration of the contemporaneously recorded medical histories that were provided by the plaintiff.

Issues calling for decision

29. A consideration of the pleadings, the evidence, and the submissions of the parties, indicates that the substantive issues which call for decision in this case may be conveniently identified 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. My findings on those matters appear between paragraphs [121] to [266] of these reasons;

2. Identification of the relevant risk of harm within the meaning of s 5B of the CL Act. My findings on this issue appear between paragraphs [267] to [269] of these reasons;

3. Identification of the scope and content of the duty of care owed by Dr Pope. My findings on this issue appear between paragraphs [270] to [274] of these reasons;

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. My findings on those questions appear between paragraphs [275] to [308] of these reasons;

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. My findings on this issue appear between paragraphs [309] to [343] of these reasons;

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. My findings on this issue appear between paragraphs [344] to [367] of these reasons;

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. My findings on those matters appear between paragraphs [368] to [396] of these reasons.

Evidence overview

30. In the plaintiff’s case, he and his former girlfriend, Ms Torrin Marquardt, were the only witnesses to give oral evidence on factual matters. Dr Pope was the only factual witness to give evidence in the defence case.

31. The respective expert neurosurgical witnesses met on several occasions to seek to identify matters on which they respectively agreed and disagreed. They gave their oral evidence concurrently in four disjointed sessions. This was so because of the way in which matters emerged in evidence, where procedural fairness required that some matters of contention be given further expert consideration.

32. This complication occupied hearing time well beyond the original estimate of the time allocated to the case. This resulted in delay, which then led to other delays. In my view, such inefficiency can be traced back to the limited manner in which the plaintiff’s solicitor had instructed the plaintiff’s expert neurosurgeon.

30. In addition to the neurosurgical experts, the parties retained expert radiologists on the liability issues. On the damages issues the plaintiff relied upon an expert neurologist and a psychiatrist. On those issues, the defendant relied upon the opinion of a forensic psychiatrist and a rehabilitation specialist.

31. The entire range of expert evidence will be summarised and evaluated in the appropriate detail and context before addressing the issues calling for decision.

32. The plaintiff presented an uncontentious chronological factual framework: Exhibit “A”. The parties prepared a common Court Book comprising seven volumes with 2515 pages of medical materials and records, expert reports, and financial materials: Exhibit “B”, Vol 1 to Vol 7. By agreement ultimately reached during the trial, some of those pages became superfluous: T27.9; MFI “12”.

Credibility and reliability of testimony

36. The defendant made submissions which attacked the reliability of the evidence of the plaintiff.

37. Although I accept the submission made on behalf of the plaintiff that this is not a case that ought to be decided by questions of credit, the defendant’s substantive credit challenges to the evidence of the plaintiff, and the plaintiff’s challenges to the credit of Dr Pope, will shortly be considered.

38. I preface the consideration of those matters by stating that I am satisfied all witnesses did their best to give their evidence truthfully and accurately.

39. Given the passage of time since the events in question, and given the need for the exercise of caution when assessing the reliability of the memories of witnesses, which can at times prove fallible, the differences in aspects of the factual evidence given by the plaintiff and by Dr Pope require resolution in the context of the evaluation of contemporaneous documents that were created at or around the time of critical events: Watson v Foxman & Ors (2000) 49 NSWLR 315; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, at [31].

40. The differences of opinion within the evidence of the respective expert witnesses requires evaluation and resolution according to an acceptance or a rejection of the factual basis for such opinions, and on account of whether there is sufficient similarity between the assumptions underpinning that evidence and the factual findings sought by the parties: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].

41. In the paragraphs that follow I identify the contemporaneous impressions I recorded in relation to the evidence of the respective witnesses who gave oral evidence, as augmented by my analysis of the evidence.

The plaintiff

42. The plaintiff gave his evidence in what I considered to be reasonable and understated terms. He made many fair concessions where they were due on matters of uncertain recollection, and he did so without any apparent exaggeration.

43. I was left with the impression that the plaintiff gave his evidence taking due care to ensure factual accuracy. That said, he was vague in some of his descriptions in his oral evidence. I considered the substance of his evidence to be reliable, not inherently improbable, and capable of acceptance, subject to allowances that must be taken into account in assessing the potential impact of fallibility of memory. In that regard, the contemporaneous documentary materials take on some considerable importance.

44. In coming to those conclusions I have not overlooked the substantive matters that were raised in the defendant’s challenges to the plaintiff’s evidence, as were put in cross-examination to him.

45. The plaintiff was challenged on variations in the history he provided to Dr Pope on the different occasions he saw him, including with regard to the various responses he gave in answers to questions where he was asked to tick or circle options for answers in the Oswestry patient questionnaires he had completed.

46. I accept the validity of the plaintiff’s answer to that challenge, to the effect that his varied responses reflected how he was feeling on the particular days when he was asked to address those questions: T131.35. For that reason, I accept his rebuttal of the suggestion that he had materially exaggerated his responses when filling out one of those forms: T156.25.

47. The plaintiff appropriately acknowledged that, on many questions, his recollection on some matters of detail was only limited: T119.45; T129.45 – T129.50; T130.36; T132.38; T139.7; T139.46; T140.3 – T140.12; T140.38; T150.19; T150.29; T152.50; T156.48; T163.49; T166.32; T167.45; T175.21; T181.16; T183.10 – T183.14; T190.22. He was challenged in cross-examination on a number of propositions as follows.

48. The plaintiff agreed (at T134.28 – T134.43), that in his instructions to one of his former solicitors, Stacks, from whom he had initially sought advice about this claim, he had said of his second consultation with Dr Pope, on 12 November 2013, that Dr Pope had given him advice as to the proposed surgery, which those solicitors had recorded in the following form:

“You have a very small herniation at L5-S1 with no nerve impingement. There is a disc bulge. If you saw 10 different neurosurgeons, five would say you should have surgery and five would say you do not need surgery. There is 70 per cent chance of improvement with surgery and a 30 per cent chance something could go wrong. There's a possibility that the pain could be stemming from somewhere else but that is unlikely.”

[T134.19 – T134.25]

49. In that regard, the plaintiff adamantly maintained that Dr Pope had told him a majority of neurosurgeons would not operate on him in his presenting condition: T135.34 – T136.17; T137.1 – T137.17.

50. On that question, whilst Dr Pope accepted as uncontroversial, that there could well be surgeons who would operate in the plaintiff’s presenting situation, whereas others would not, he did not accept the proposition that he had suggested to the plaintiff a majority of surgeons would not have operated in the presenting circumstances: T286.15 – T286.26. That evidence will be considered for its significance when determining the defendant’s claim of the benefit of a defence pursuant to s 5O of the CL Act.

51. As to the plaintiff’s recollection of discussions in consultations with Dr Pope, it was in effect put to him that his memory of events, as recounted in his evidence, was conveniently tailored to suit his case, a proposition that he convincingly denied: T126.26 – T126.37. I accept that denial, which was consistent with his focus in wanting to obtain professional medical advice to address and resolve his sensory problems that occupied his primary concern at those times: T127.4. I considered his evidence to be unembellished but it still needed to be assessed in terms of reliability on some matters in issue.

52. The plaintiff was cross-examined extensively on his pre and post-surgical travel to overseas destinations. In my assessment no adverse credit issues arise from that history of travel. In my assessment nothing of adverse credit significance emerged from the cross-examination of the plaintiff on any other of the damages issues.

Ms Marquardt

53. Ms Marquardt, the plaintiff’s former girlfriend, gave unchallenged evidence in which she described her observations of changes which became apparent to her in the plaintiff’s physical capacities, his outlook on life, and his demeanour, in the pre and post-operative periods. She was not cross-examined. I accept her evidence in its entirety.

Consultant expert neurosurgeons

54. In my assessment, both Professor Gavin Davis (retained by the plaintiff) and Professor Mark Sheridan (retained by the defendant) did their best to provide their expert opinions to assist the Court. I am satisfied that they did so honestly.

55. In my view, the expressed differences in their respective opinions were based on their differing factual interpretations of the plaintiff’s presenting symptoms and the interpretation of some professional literature referred to by Professor Davis. I reject the submission made on behalf of the defendant suggesting that Professor Davis was an unsatisfactory witness. I am satisfied that any perceived or argued difficulties arising from the evidence of Professor Davis were due to the limited manner and extent to which he had been instructed by the plaintiff’s solicitor.

56. During the course of Professor Sheridan’s oral evidence, on the fifth day of the hearing, he disclosed that Dr Pope had been his registrar and examinee whilst he was undergoing training as a specialist neurosurgeon: T311.19 – T312.7. Whilst the timing of that disclosure was surprising, the parties are in agreement that nothing of significance turns on those facts.

Dr Pope

57. Dr Pope is a well-qualified neurosurgeon. He graduated with degrees in medicine and surgery at the University of Otago, in New Zealand, in 1996. He became a fellow of the Royal Australia College of Surgeons (“RACS”), in 2007. He was appointed as a consultant surgeon at Concord Hospital in 2008. In 2009 he pursued and completed a fellowship in Alberta, Canada, in complex spinal surgery. In 2009, on returning to Sydney, he resumed practice as a Visiting Medical Officer at Concord Hospital. He also established a co-extensive private practice. He saw the plaintiff at his Crows Nest rooms, in what he described as being a largely paperless practice.

58. At his first consultation with the plaintiff on 15 October 2013, Dr Pope made some brief notes in his personalised shorthand, which formed the basis of his dictated correspondence to the referring general practitioner, Dr Lam. With one exception on 12 August 2015, which will be referred to at a later point in these reasons, he made no further notes at his subsequent consultations with the plaintiff, and on those other occasions he dictated his correspondence by relying on his immediate recall after each consultation: T199.1; T253.43.

59. Understandably, given the nature and volume of Dr Pope’s busy specialist neurosurgical practice, in which he has seen many patients over the course of the years that have passed since the events now in question, he said, and I accept, that he had no independent recall of his meetings with the plaintiff. That was so, except in respect of his last meeting with the plaintiff on 12 August 2015, which ended in unpleasantness.

60. Dr Pope’s account of the detail of that latter event differed from the plaintiff’s account. That exchange and those differences will be identified in closer detail in chronological context. Otherwise, Dr Pope’s evidence was reliant upon the content of his contemporaneous clinical records and the associated contemporaneous correspondence to reconstruct the detail of his attendances on the plaintiff.

61. The material challenges made on behalf of the plaintiff to Dr Pope’s evidence were interpretative in nature, namely, assertions as to what he should have done rather than as to what he in fact did in the course of his management of the plaintiff as his patient.

62. Dr Pope was challenged on the question of whether, on the occasion of his unpleasant encounter with the plaintiff on 12 August 2015, he had actually examined the plaintiff. The plaintiff claimed Dr Pope had not examined him on that occasion, whereas, Dr Pope claimed he did, and had made a note of the occasion: T284.29. The note was not in evidence. It may have been a dictated note. That matter was not further explored in the evidence. That is a factual matter to be examined.

Summary of Dr Pope’s evidence

63. At this point it is convenient to summarise Dr Pope’s oral evidence relating to the management of the plaintiff’s condition, as follows:

1. He expanded upon the observations recorded in his initial handwritten notes: T199.34 – T201.19. Those matters were reflected in his correspondence to Dr Lam;

2. He explained that the plaintiff’s sensory problems, as they were relayed to him by the plaintiff, had come on slowly, and had then progressively worsened in the month or so before that first consultation on 15 October 2013: T201.49 – T202.2;

3. He explained that at his 15 October 2013 consultation with the plaintiff, contrary to what was put to him in cross-examination, he had found a bilateral weakness in a relevant muscle group (the flexor hallucis longus), in addition to the described sensory complaints when he tested the plaintiff’s spinal nerve roots that enervated his right leg, when he was considering those matters as part of the plaintiff’s complex of complaints: T262.28 – T263.47.

4. He explained his method of examination, the detail of his physical testing of the plaintiff, and his associated questioning of him. He conducted his examination of the plaintiff through clothing, observing for signs of discomfort, and observing for elicited signs, such as muscle spasm, which were not noted in this instance: T204 – T208;

5. He looked at the plaintiff’s pre-consultation CT scan which was taken from the level T12 down to the level of the lumbo-sacral spine. He described it as a standard and reasonable radiological investigation: T209.25;

6. He recorded his tentative clinical impression that the plaintiff had a recalcitrant (meaning prolonged) L5 radiculopathy, due to an L5/S1 disc herniation with chronic denervation. He decided to order investigations to verify that view: T211.7 – T212.50;

7. He ordered a steroid injection for the plaintiff for diagnostic purposes to see if his problem involved a nerve root. He said he wanted to see if this injection would benefit the plaintiff. He also prescribed medication, Lyrica as a neuropathic pain treatment: T212.30 – T213.1;

8. He ordered a lumbar MRI scan for the plaintiff and he interpreted the result as being consistent with his clinical findings: T215.20;

9. The fact that the cortisone injection he had ordered had given the plaintiff some symptomatic relief did not provide him with assurance that the radiologist had correctly targeted the L5 or S1 nerve root, and the fact that the plaintiff’s relief was reportedly short-lived, indicated to him that the plaintiff’s symptoms were coming from a nerve root in the lumbar spine: T218.34 – T219.8. Elsewhere, this was referred to as the pain generator site;

10. He evaluated the radiological interpretations of the imaging scans against his own interpretations of those scans and he determined that, having regard to the radiologically determined presence of an abnormality in the form of transitional vertebrae, the plaintiff had a disc bulge at the level L4/5. He said that this served to confirm his earlier working diagnosis: T219.30 – T220.48;

11. He had no actual recollection of what he told the plaintiff at the time of his first consultation but referred to his normal practice, which was to dictate the substance of the consultation and what was discussed at that time, in the form of a letter to the referring general practitioner, as was reflected in the correspondence in this instance: T221.48 – T222.5; Exhibit “B”, Vol 1, pp 38 – 39;

12. He was cross-examined in some detail concerning the content of his first consultation with the plaintiff: T254 – T258;

13. It is plain from Dr Pope’s correspondence to Dr Lam that he had discussed with the plaintiff the risks and benefits of surgery, and had referred to his view that early surgery provides better results: T222.44 – T223.3;

14. Dr Pope in effect rejected as unfair the suggestion put to him in cross-examination that, at the time of his first consultation with the plaintiff, he had “leapt” to his diagnostic conclusion for surgery without beforehand looking for alternative possibilities to explain the plaintiff’s complaint of numbness in his right foot: T258.19 – T258.38. In context, I consider that characterisation was inapt, given that a period of some nine months had passed between that consultation and the date of the operation;

15. Dr Pope expanded upon his rejection of that proposition as was put. He stated that the clinical picture which he had before him was not substantial enough to justify further investigations of the plaintiff’s spine at a higher level than at the lumbar level. In particular, he explained that his clinical finding of an uneven myotomal weakness in the plaintiff’s legs had to be considered in the context that it was not a true reflection of strength testing because of the compounding factor of the presence of pain, which he had documented: T258.40 – T258.44. He said there were a number of symptomatic issues to consider in that context: T260.12;

16. It appears that one of those symptoms of relevance was the plaintiff’s report of back pain, as was recorded by Mr Kelly, and which Dr Pope considered to correlate to disc disease, even though it may have been episodic and not constant: T286.47;

17. He explained the products of his examination of the plaintiff on 12 November 2013, as was set out in more detail in his letter to Dr Lam on that date: Exhibit “B”, Vol 1, pp 43 – 44. He identified the positive sign of pain over the right buttock as serving to build the diagnosis of radicular or sciatic pain: T224.31. He said that this view was verified to him by the physiotherapy report identifying that the plaintiff had right-sided low back pain with pins and needles in the right foot, which supported the existence of a nerve root problem in the lower back. He said that this cemented in his mind the diagnosis that the plaintiff had a lumbar disc problem: T224.50 – T225.10. He did not see any inconsistencies arising out of Mr Kelly’s physiotherapy report in that regard: T225.26;

18. Dr Pope’s oral evidence that was directed at explaining the surgery he performed identified a number of pertinent features that expanded upon the operation report which he had prepared immediately following the surgery, whilst his registrar was closing the plaintiff’s surgical wound: T232 – T236. In that context, he explained that he had found a disc protrusion, otherwise known as disc herniation, which was adherent to an annular tear, as was described in the pre-operative imaging report. He stated that his operative findings matched the pre-operative investigations, and were consistent with his pre-operative hypothesis or diagnosis of the plaintiff’s problems: T236.11 – T236.19;

19. He explained that his normal practice was to review his patients post-operatively, at intervals of two weeks, six weeks, three months, six months, and 12 months: T238.35. In that regard, he stated that the plaintiff had missed his six week post-operative follow-up appointment: T238.45 – T239.14;

20. He was made aware that the plaintiff had experienced a fall at his work on 22 August 2014. Dr Pope confirmed his view that the fall in question had not exacerbated the back surgery, and he noted the fall produced symptoms which affected the left leg, not the right leg: T244.31. Subsequently, he also informed the plaintiff that the MRI scanning undertaken in March 2015 did not show he had piriformis syndrome, a matter that concerned the plaintiff: T248.7;

21. On 12 August 2015, Dr Pope referred the plaintiff to Dr Glen Sheh, a pain and rehabilitation specialist to see whether she could find any causes of the plaintiff’s new complaints of sensory changes and losses that he was by then experiencing to the whole of his right leg: T252.45 – T253.2. A factual dispute emerged as to what occurred at that 12 August 2015 consultation. This will shortly be examined in some detail in chronological sequence in connection with Issue 1;

22. For clarification, Dr Pope was asked to identify the possible contraindications for the surgery he had recommended and performed on the plaintiff. His evidence on that subject was as follows:

“Q. … the decision not to operate, what would mediate that sort of conclusion, in your professional thinking?

A. 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 for this particular condition may not be warranted. It may not offer the patient benefit.”

[T270.14 – T270.20]

23. In cross-examination, it was suggested to Dr Pope that post-operatively, in the face of what was put to be the presence of clinical “red flags”, and a chronic pain problem, he had closed his mind to, and had dismissed the possibility that, the plaintiff had an upper neurone problem that warranted further investigation at a higher level of the spine, not just at the lumbar level. That proposition was based on the opinion of Professor Davis.

24. In rejecting that proposition, Dr Pope said that post-operatively, he had dismissed the possibility of a problem existing at a higher level of the plaintiff’s spine. He said it was clear to him that he was dealing with a localised lower neurone lower limb issue, with associated back pain accompanied by post-surgical spasm, and he felt any further and investigations higher up in the spine were not warranted in the circumstances he was considering: T279.12 – T280.1. He specifically rejected the proposition that there were post-operative “red flags” he ought to have recognised: T281.40;

25. Dr Pope further explained that post-operatively, and after the plaintiff’s fall at work (on 22 August 2014), there was no indication to order a full MRI study of the plaintiff’s spine that included the thoracic region. He said that whilst it would have been possible to order such a test, that suggested approach was not the way that specialists worked when applying the algorithms that applied in the practise of clinical medicine: T279.42 – T280.2.

General overview of the categories expert evidence

64. I preface my review of the categories of expert evidence by reiterating that I consider no credit issues arise from that evidence. That evidence stands to be evaluated according to its relevance and its determinative weight. The expert evidence in these proceedings was within five distinct categories.

First category - neurosurgeons

65. The first category of expert evidence comprises the respective evidence of the consultant neurosurgeons, Professor Davis and Professor Sheridan. Their oral evidence which was given in four concurrent sessions, was explanatory of their initial reports and their joint report. Their evidence was tested, and as such, this category of evidence provided the most useful source of guidance to determining the liability issues in dispute. That evidence will be examined in some detail before addressing the issues calling for decision as identified at paragraph [29] above.

Second category – radiologists’ opinions

66. The second category of expert evidence comprised the respective opinions of the radiologists, Dr James Bowden (retained by the plaintiff) and Dr Michael Jones (retained by the defendant). Dr Bowden’s report dated 30 November 2019 is part of Exhibit “B”, in Vol 2, at pp 231 – 242. Dr Jones’ report dated 20 May 2020 is also part of Exhibit “B”, in Vol 2, at pp 391 – 340.

67. Those reports analysed the significance of the imaging evidence. As such, that evidence was of limited assistance in determining the liability issues in dispute where the required approach is a prospective analysis of the manner in which Dr Pope exercised his clinical judgment as a neurosurgeon.

68. The radiological evidence which based Dr Pope’s clinical approach was not in dispute. The retrospective opinions of Dr Bowden and Dr Jones did not materially contribute to that analysis. Subject to what follows, the utility of their reports was that they explained the relevant neuroanatomy, but they did not provide determinative guidance on the liability issues.

69. In reviewing those reports, in his oral evidence, Professor Davis identified a conflated descriptional error in Dr Jones’ report in which by his descriptions he had incorrectly identified an anatomical structure in the spine, and he had incorrectly confused and mis-described the annulus pulposis and the nucleus pulposis: T374.30 – T376.2.

Third category – other neurological opinions

70. The third category of expert evidence respectively comprises the expert neurological opinion by Dr Neil Simon, who provided a report dated 26 June 2019 for the plaintiff’s solicitor on causation and damages issues (Exhibit “B”, in Vol 2, at pp 243 – 302), and the neurosurgical report dated 16 October 2017 by Dr Peter Bentivoglio who had been retained by one of the plaintiff’s former solicitors: Exhibit “B”, in Vol 2, at pp 464 – 468. Each of those experts had examined the plaintiff. Their reports were not the subject of challenge. The evidentiary utility of those reports is that they assisted in matters of diagnosis and in the assessment of damages, and they add some explanatory detail to matters of historical significance. Reference will be made to those matters where it becomes relevant to do so.

Fourth category – forensic psychiatrists

71. The fourth category of expert evidence comprises the respective forensic psychiatry reports of Dr Robert Kaplan dated 23 January 2019 who was retained by the plaintiff’s solicitor (Exhibit “B”, in Vol 2, at pp 280 – 292), and Dr Yvonne Skinner dated 17 June 2019 who was retained by the defendant’s solicitor (Exhibit “B”, in Vol 2, at pp 469 – 491), and their joint report dated 3 June 2020 (Exhibit “B”, in Vol 1, at pp 24 – 28). That body of evidence was not the subject of challenge. It will be referred to in the course of my reasons for the assessment of damages.

Fifth category – miscellaneous damages reports

72. The fifth category of expert evidence comprises the miscellaneous occupational therapy and rehabilitation opinions which relate to damages issues. These do not require particular reference or analysis at this point.

Evidence from expert neurosurgeons

73. Both Professor Davis and Professor Sheridan provided a series of written reports, starting with primary reports followed by sequential commentaries. By agreement between the parties, two identified reports of Professor Davis were not read. These witnesses met in conclave and produced a joint report in which substantial agreements were recorded. They then gave their oral evidence concurrently in an extended sequence of four sessions. That occurred because of time constraints and because of matters arising requiring time and attention on account of procedural fairness. The crucial expert evidence is summarised as follows.

First report of Professor Davis – 9 September 2019

74. The first report of Professor Davis, dated 9 September 2019, was preliminary in its nature: Exhibit “B”, Vol 2, pp 195 – 215. Professor Davis reviewed the clinical notes of Dr Lam, Concord Hospital, Dr Steel, Dr Simon, and St Vincent’s Hospital. He also reviewed a DVD that contained numerous medical imaging of the plaintiff for the period 2015 to 2017. After reviewing and commenting on that material he provided the following summary:

“This young man presented to the neurosurgeon in 2013 with subtle but extensive symptoms and signs affecting the lower limbs, with radiological evidence of degenerative disc disease at L4-5 without significant neural compression at that level. The patient underwent surgical decompression at L4-5 without any significant improvement, and progressively deteriorated, albeit slowly, over the next two years until the neurologist identified a T9 clinical level which was subsequently confirmed as T5-6 spinal cord compression due to probable ossification of the ligamentum flavum.”

[Exhibit “B”, Vol 2, p 200]

75. The report addressed questions that were structured and posed by the plaintiff’s solicitor in an order which in my view suggested an inappropriate hindsight analysis rather than the required prospective analysis for determining liability issues in such cases: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124]. In my view, the sequence of those questions was misconceived and therefore the report in response is of limited analytical assistance on its own. I do not intend these remarks to be read as any kind of criticism of Professor Davis, who did his best to respond to the questions that were posed to him by the plaintiff’s solicitor.

76. Those three questions were as follows:

1. Had an MRI of the thoracic spine been done by the defendant in 2013, would it have shown the lesion in the thoracic spine? That need(s) to be answered on a more than 51 per cent chance;

2. Were the symptoms experienced by the plaintiff in 2013 due to the thoracic lesion? That need(s) to be answered on a more than 51 per cent chance;

3. On the balance of probability, that is more than a 51 per cent chance, had our client had thoracic surgery in 2013, would he have had a better outcome?

77. Those questions do not correctly or sufficiently frame the issues to be determined in this case because they start from a hindsight premise.

78. Professor Davis addressed those questions by answering them as follows:

1. As to the suggestion of an earlier thoracic MRI, Professor Davis responded that the thoracic lesion was a calcification of the ligamentum flavum and was slow growing, probably over years. It would most likely have been identified in a thoracic CT and MRI scan if performed in 2013;

2. As to the suggestion that there were thoracic symptoms in 2013, Professor Davis responded that the plaintiff’s presentation of symptoms to Dr Pope was subtle in 2013, and more diffuse than L5 radiculopathy. Further radiological investigations were warranted in view of Dr Pope’s finding of bilateral weakness in the flexor and extensor hallucis longus muscles, which was indicative of T5-6 pathology. The analysis went on to draw upon the ex post facto findings of Dr Simon in 2015;

3. As to the suggestion of a better outcome from thoracic surgery if performed in 2013, Professor Davis responded that he had been provided with insufficient data to fully address this question. He identified the exercise as impossible: Exhibit “B”, Vol 2, pp 201 – 202;

Second report of Professor Davis – 16 April 2020

79. The parties agreed that the report of Professor Davis dated 16 April 2020 was not to be read in the proceedings: T25.14. It was removed from its former place in the Court Book at pp 191 – 194.

Third report of Professor Davis – 1 May 2020

80. The parties agreed that the report of Professor Davis dated 1 May 2020 was not to be read in the proceedings: T25.14. It was removed from its former place in the Court Book at pp 186 – 190.

Fourth report of Professor Davis – 6 August 2020

81. The third report of Professor Davis, dated 20 August 2020, was in the form of a supplementary report that was prepared in response to a report prepared at the request of the defendant by Professor Sheridan, dated 3 August 2020, where that report reviewed three MRI images that had been taken of the plaintiff’s spine on 23 October 2013.

82. The essential issue raised in this report is the identification of a dispute between the respective neurosurgical experts that arose from their oral testimony. Specifically, whereas Professor Sheridan considered that the MRI scans demonstrated evidence of chemical nerve root irritation causing sensory symptoms without severe mechanical compression, Professor Davis suggested that “such chemical irritation is not demonstrated” in the subject scans: Exhibit “C”, pp 1 – 3. Those differing opinions were based on the views formed in the eyes of the respective beholders and they stand to be reconciled, if possible.

First report of Professor Sheridan – 27 May 2019

83. Professor Sheridan’s first report, dated 27 May 2019, was prepared at the request of the solicitor for the defendant: Exhibit “B”, Vol 2, pp 371 – 374.

84. The solicitor for the defendant provided Professor Sheridan with a very detailed letter of instruction which set out a chronology of events (at paragraphs 5 – 39), and it identified the assumptions that he was asked to make for the purpose of his analysis concerning Dr Pope’s consultations and operative care of the plaintiff between 15 October 2013 and 12 August 2015 (at paragraphs 40 – 54; pp 378 – 387).

85. At paragraph 57, the letter of instruction to Professor Sheridan posed a series of eight questions in the series (a) to (k), which included further assumptions (at (e)(i)-(ii), (i)(i)-(iii) and (j)(i)-(vi)), to provide the structure for the preparation of his report.

86. The letter of instruction to Professor Sheridan also enclosed copies of the Expert Witness Code, the pleadings, three medical reports relating to the plaintiff, and a series of nine categories of relevant historical medical records relating to the plaintiff: Exhibit “B”, Vol 2, pp 375 – 390.

87. It is plainly apparent that Professor Sheridan was carefully and properly instructed for the task the defendant’s solicitor required of him. His report of 27 May 2019 was prepared in response to the questions posed in the letter of instruction. The report makes the following points in response to the questions asked of him:

1. Professor Sheridan considered that Dr Pope had performed an appropriate and thorough examination of the plaintiff and had documented his findings to an acceptable standard;

2. Professor Sheridan considered that the plaintiff’s CT scan dated 28 September 2013 and his MRI scan dated 23 October 2013 demonstrated an L5/S1 disc bulge with right-sided lateral recess narrowing and nerve irritation consistent with the plaintiff’s symptoms and Dr Pope’s clinical findings;

3. Professor Sheridan considered that Dr Pope’s clinical findings, combined with the imaging, namely the CT scan dated 28 September 2013 and the MRI scan dated 23 October 2013, were consistent with the plaintiff’s history;

4. Professor Sheridan considered that Dr Pope’s treatment plan as outlined was entirely appropriate. He said that the recommended course of conservative treatment, including injections and physiotherapy, was considered to be standard care in the plaintiff’s situation;

5. Professor Sheridan was of the view that, given the absence of any complaint from the plaintiff of numbness on the right side (other than in his lower right leg), the investigations ordered by Dr Pope were appropriate to the plaintiff’s clinical presentation. He said this was so given the findings on clinical examination, and the history that was provided, which all pointed to the existence of a lumbar pathology. In those circumstances, he explained that there were no symptoms, signs, or any other findings to suggest a need to look for a spinal cord compression elsewhere in the plaintiff’s spine, especially as the plaintiff had exhibited no symptoms of spinal cord compression in either the cervical or the thoracic spine;

6. Professor Sheridan considered that in the period leading up to the plaintiff’s lumbar surgery there was no indication of a need for him to be referred to a neurologist as all the signs and disclosed symptoms, and the imaging findings, were concordant, and well within the expertise of a neurosurgeon to diagnose and manage;

7. Professor Sheridan considered that at no time in the plaintiff’s clinical contact with Dr Pope, did he indicate he had any symptoms consistent with a benign T5/6 exostosis. He considered that this turned out to be an incidental finding, unrelated to the plaintiff’s symptoms (as they had been disclosed to Dr Pope) ;

8. Professor Sheridan considered that the plaintiff’s present back and right leg complaints were due to his original injury. I take this to mean that they were due to the underlying condition which was presented to Dr Pope;

9. Professor Sheridan considered that the surgery performed by Dr Pope had no direct impact on the plaintiff’s described genito-urinary problems or bladder dysfunction. He said these problems had no neurogenic cause, and the latter problem may possibly be related to pain, but not to the surgery carried out by Dr Pope;

10. [Adequately addressed in (i) above];

11. Professor Sheridan considered that at the time Dr Pope provided his professional services to the plaintiff, his management of the plaintiff would be accepted by peers in Australia as competent professional practice. He said Dr Pope’s initial assessment, his documentation, the requested imaging, the surgery itself, and Dr Pope’s ongoing care, were all exemplary. He could find no aspects of Dr Pope’s care to be worthy of criticism.

Second report of Professor Sheridan – 27 April 2020

88. On 27 April 2020, Professor Sheridan prepared a supplementary report to comment upon Professor Davis’ report dated 9 September 2019: Exhibit “B”, Vol 2, pp 353 – 354, with annexures at pp 355 – 390.

89. This supplementary report made the following points:

1. He was in general agreement with the report of Professor Davis subject to what follows;

2. Dr Pope’s initial treatment plan, namely for injection and physiotherapy, was entirely appropriate;

3. The physiotherapy findings on 13 January 2014 of right-sided back pain with leg pain but no weakness were considered to support Dr Pope’s findings on 15 October 2013;

4. The subsequently discovered T5-6 spinal cord compression did not cause pain and paraesthesia in the legs, it predominantly presents as weakness, ataxia and altered sensation;

5. The genito-urinary problems described by Dr Bowden were identified as a common symptom after low back surgery, disc protrusion, and nerve compression in the lower lumbar spine. In that regard Professor Sheridan did not diagnose cauda equina syndrome, which therefore cast doubt on an arguable causal connection;

6. The clinical signs of cord compression had not become obviously apparent until Dr Simon’s examination, and they were not apparent when Dr Steel examined the plaintiff;

7. The one month delay between diagnosis of the plaintiff’s thoracic symptoms and Dr Steel’s thoracic surgery on 12 August 2015 is indicative that the degree of myelopathy was not considered to be severe, otherwise a more urgent intervention would have been required;

8. There were two co-extensive pathologies in play, first, a lumbar disc protrusion and associated nerve root compression, which was appropriately treated by Dr Pope, and secondly, an evolving T5-6 spinal cord compression which was treated appropriately by Dr Steel;

9. Professor Sheridan considered Dr Pope to have acted appropriately in accordance with the acceptable standards applicable to a neurosurgeon at the time, and he did not miss anything;

10. Professor Sheridan did not think the plaintiff has suffered any negative consequences from any delay in carrying out the thoracic surgery.

Third report of Professor Sheridan – 29 May 2020

90. On 29 May 2020, Professor Sheridan prepared a further short supplementary commentary in which he addressed a question posed to him by the defendant’s solicitor: Exhibit “B”, Vol 2, p 352.

91. The question related to the differences found on physical examination of the plaintiff. Dr Pope had found the plaintiff had bilateral weakness in both flexor halluces longus muscles whereas the examination by the treating physiotherapist had failed to demonstrate this. Professor Sheridan explained this may have been due to pain and therefore it may be interpreted as a non-reproducible clinical sign. He did not consider it to be due to a thoracic cord compression, saying it was more likely to be due to pain coming from a lumbar disc problem. In those circumstances, he disagreed with Professor Davis on that point.

Fourth report of Professor Sheridan – 3 August 2020

92. On 3 August 2020, Professor Sheridan prepared a further short supplementary report at the request of the solicitor for the defendant following on from his oral evidence in which MRI images taken on 23 October 2013 (and as seen by Dr Pope), where those images were discussed. He attached three MR images annotated with added indicative arrows and text to demonstrate his view that lumbar nerve compression and irritation was visible on those scans. In the sub-paragraphs that follow, extracts of those scans are incorporated in conjunction with his explanations. His oral evidence on those images referred to enlarged copies printed on an alphanumeric grid for more convenient reference: Exhibit “1”. He described those images in the following terms:

1. The first image was a sagittal T2 weighted section to the right of the midline showing a disc protrusion touching the traversing nerve root:

2. The second image was an axial T2 weighted image demonstrating one level above the third image showing the nerve root without compression

3. The third image was an axial T2 weighted section which demonstrates the disc protrusion impinging on the nerve

93. Professor Sheridan described the third image as demonstrative of his earlier testimony discussing chemical irritation from the nucleus pulposis touching the nerve root as an explanatory cause for pain and sensory symptoms without the presence of severe mechanical compression of the nerve. He identified his opinion that the described changes were concordant with the plaintiff’s complaints of right lower leg pain and sensory change at the time this scan was taken on 23 October 2013: Exhibit “2”. That evidence was relied upon as justification for the lumbar surgery carried out by Dr Pope.

Joint report by Professors Davis and Sheridan 9 June 2020

94. The joint report of Professor Davis and Professor Sheridan that emerged from their meeting on 9 June 2020 addressed eleven agreed questions, with the following result:

1. Dr Pope’s finding of bilateral weakness of the flexor halluces longus muscles, more on the right than on the left, is indicative of either bilateral nerve root pathology or unilateral spinal cord pathology, either at the lumbar junction, or potentially higher up in the spine: Exhibit “B”, Vol 1, p 29;

2. The clinical information provided to Dr Pope on 15 October 2013 indicated there was insufficient information to confirm the likely cause of the plaintiff’s complaints, as presented by him at that time: Exhibit “B”, Vol 1, p 30;

3. On the question of whether, prior to the surgery performed by Dr Pope on 16 June 2013, there was any indication for the plaintiff to be referred to a neurologist, Professor Sheridan answered no, and Professor Davis answered potentially yes, because an element of doubt had remained about diagnosis, which merited further investigation: Exhibit “B”, Vol 1, p 30;

4. Whilst Professor Davis considered that referral to a neurologist was reasonable, and further investigation was required to assist the surgeon to continue on the identified pathway before a definitive diagnosis could be made prior to surgery, and this may have led to a search for a different diagnosis, Professor Sheridan considered that course to be inapplicable: Exhibit “B”, Vol 1, pp 30 – 31;

5. The experts agreed that the plaintiff’s fall into a trench on 22 December (sic for August) 2014, had not contributed to his lumbar or thoracic spinal condition: Exhibit “B”, Vol 1, p 31;

6. The experts agreed that the clinical signs, symptoms and examination findings of Dr Steel in respect of treatment were not contributory to a prospective analysis of the issues required to be addressed in this case: Exhibit “B”, Vol 1, pp 31 – 32;

7. The experts agreed that Dr Ly’s MRI report of 8 August 2015 correctly showed “cord compression with subtle oedema/early myelomalacia in the left hemicord, at T5/6.” This was classified as clinically significant spinal cord compression with myelomalacia: Exhibit “B”, Vol 1, p 32;

8. The experts were asked as to what they attributed the plaintiff’s reported right leg symptoms. Whereas Professor Davis made the general statement attributing these to the later diagnosed thoracic tumour and spinal cord compression, Professor Sheridan said that, as at 2013, these should be attributed to lumbar disc problems, but in retrospect, he agreed that in light of what is now known, they were more likely due to the thoracic cord compression: Exhibit “B”, Vol 1, p 32;

9. As to the most likely cause of the plaintiff’s symptoms, as reported to Dr Steel on 5 November 2015, 15 December 2015 and 18 January 2016, Professor Davis considered these were most likely due to a combination of residual cord dysfunction from the thoracic tumour with some undefined contribution from lumbosacral mechanical degenerative disease, whereas, whilst Professor Sheridan was in general agreement with that formulation, he said the respective percentages for attribution remained unclear: Exhibit “B”, Vol 1, p 33;

10. The experts were asked to consider the post-2015 contemporaneous medical records to indicate what if any myelopathic symptoms the plaintiff reported since T5/6 tumour resection and laminectomy on 15 September 2015. Professor Davis considered these to include right-sided hyper-sensory change, pain and genito-urinary dysfunction, whereas Professor Sheridan considered this to be limited to right hemi-sensory change, when the other symptoms might be due to ongoing lumbosacral dysfunction: Exhibit “B”, Vol 1, pp 33 – 34;

11. The experts were asked to consider what outcome would have been expected if the plaintiff had the thoracic surgery performed by Dr Steel in 2015 carried out earlier, in 2013. The experts generally agreed it was more likely that slightly better spinal cord function would have resulted although this was impossible to quantify. Professor Sheridan added he believed (as he also explained in his oral evidence) the plaintiff’s right leg pain would have been ongoing, and would not have been benefited from thoracic surgery: Exhibit “B”, Vol 1, p 34.

First concurrent evidence session – 16 July 2020

95. The first concurrent evidence by Professor Davis and Professor Sheridan was on 16 July 2020: T294 – T347. The following matters of relevance emerged from that session:

1. Neurosurgeons are surgical neurologists. The background diagnostic training for these specialities is similar and there is a cross-over of functions. Neurosurgeons deal primarily with structural pathology whereas neurologists deal with functional matters including diagnosis in a greater range of diverse pathogies: T295 – T296;

2. In seeking a neurological or neurosurgical diagnosis the clinician will seek a concordance in the presenting picture in terms of what is most likely when looking for clinical explanations, and in that regard, heavy emphasis is placed on the history obtained from the patient, but even then, grey areas exist, and for a diagnosis, the clinician analyses the presentation using the confidence and experience gained from training: T297 – T298;

3. The question of whether a surgically treatable lesion is present is determined by assessing the history, the findings on examination, and an emergent concordance of those matters: T298;

4. Both experts agreed that whilst it is not a universal view, it is a commonly held view that when operating in the context of a detected annular tear, it is reasonable to incise the annulus and remove disc fragments within the disc space: T305.1 – T305.28;

5. Whilst Professor Davis did not see a correlation between the radiology and clinical findings in this case, and would have looked for an alternative explanation to a lumbar explanation before operating (T296.44; T297.1 – T297.7; T306.25), Professor Sheridan did not share that view as he considered the presenting picture justifiably fitted the course that was taken by Dr Pope: T297.10 – T297.27;

6. Whereas Professor Davis stated that one does not operate unless one hundred per cent convinced the surgery is clinically indicated, Professor Sheridan later stated that was imposing a too high standard: T306.37;

7. Both experts agreed that the plaintiff’s ultimate back pains could have been contributed to by the back surgery: T307.10 – T307.26;

8. The effect of Dr Pope’s 12 August 2015 comment that the plaintiff’s complaint of sensory loss over the whole of his right leg made no sense only applies if one is considering a lumbar cause, but it made perfect sense if considering a cause emanating from a higher level in the spine: T308.44; T308.11. This supports the inference Dr Pope had dismissed the possibility of a higher cause at that time, as stated in his evidence;

9. In assessing the clinical sign of leg muscle weakness during an examination assessing whether or not an operable back problem exists, it is reasonable for the examiner to come to the conclusion that weakness detected on clinical examination would be due to pain rather that representing a true neurological sign (T327.14 – T327.21), recognising that there is some scope for variability and consistency between examiners and the occasions when examinations take place: T327.35 – T327.46.

10. There is no necessary equivalence between a neurological assessment of muscle weakness by a neurosurgeon and a physiotherapist. This is because the training for those two professions is different. This point could apply to the difficulty involved in making a comparison between Mr Kelly’s findings and Dr Pope’s findings. In making a diagnosis, a whole picture assessment is required: T327.47 – T328.32.

11. Professor Sheridan was satisfied that at Dr Pope’s first consultation with the plaintiff (on 15 October 2013) the presentation pointed almost entirely to the presence of a lumbar pathology, in association with leg symptoms, and he would have taken the same diagnostic pathway as was taken by Dr Pope. He was of the opinion that this case fits exactly in the context that it represented “absolute bread and butter neurosurgery”: T329.35. He said all elements added up sufficiently by the second consultation to justify the recommendation for surgery. In that sense, he thought Professor Davis’ suggestion of a need for one hundred per cent certainty involved applying too high a standard;

12. In respect of that last point, Professor Davis argued that a slower pathway should have been taken towards surgery 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: T330.39 – T331.3. Given that there was a 9 month interval, the suggested slower pathway was not further identified;

13. Accordingly, those two differing opinions and pathways have been clearly identified;

14. Both experts agreed that surgery of the kind discussed in this case should be the last option: T332.5;

15. Professor Sheridan was convinced that the plaintiff’s presentation to Dr Pope on 15 October 2013 strongly fitted with assumed lumbar pathology rather that a thoracic cord compression in the context where diagnosis can never be one hundred per cent definitive: T340.16 – T340.25; T340.37; T340.44;

16. Professor Davis identified the fact that interpretation of MRI scans and the interpretation of indications for surgery in effect involve clinical judgment (T346.13), and in this instance, his practice would have been to step back, discuss the MRI interpretation with the radiologist, and look for another cause for the plaintiff’s symptoms because to his mind, there was an insufficient correlation for surgery: T346.19.

96. At this first session significant time was taken up by counsel for the defendant needing to raise and correct a number of matters within the joint report where some of those matters took the plaintiff’s representatives by surprise. These were matters that should have been attended to by the defendant well before the trial.

97. The first concurrent expert evidence session went beyond the time estimate and did not proceed to a completion of the evidence because of Professor Davis’ professional commitments, which required that another date be found.

Second concurrent evidence session – 23 July 2020

98. The second concurrent evidence by Professor Davis and Professor Sheridan was on 23 July 2020: T355 – T381. The following matters of relevance emerged:

1. Professor Sheridan commented that if there is a history of lower back pain, leg symptoms and decreased range of movement in the lower back the overall picture would indicate a lower back problem and it would make one quite comfortable with the notion that the pathology is in the right place and that in such a clinical setting one need not look further for other causes: T357.42 – T357.49;

2. Professor Davis explained that spinal cord compression can present with variable signs at different times, and although the exact mechanism is not clearly understood, there is definitely a degree of variability, including due to fatigue during the examination: T359.15;

3. Professor Davis agreed that pain can be a confounding factor that can be a variable in an assessment, even in the presence of focal neurology such as muscle weakness: T359.36 – T360.10;

4. Much of this session related to the interpretation of pain symptoms in a Level 4 evidence category observational study in an academic paper of limited relevance to this case on the question of the reasonableness of Dr Pope’s decision to operate on the plaintiff: T360 – T365;

5. Professor Sheridan was referred to his earlier opinion, as stated in his report dated 27 May 2019, wherein he stated that Dr Pope’s management of the plaintiff was exemplary. Here, he added that after reading Dr Pope’s evidence in these proceedings, his opinion remained unchanged: T368.9 – T368.22;

6. A question arose as to the interpretation of dynamic images comprising the lumbar MRI scans. This question was flagged for further attention from the experts: T371.6 – T371.22. This resulted in Professor Sheridan producing his fourth report, dated 3 August 2020: Exhibit “2”, which is summarised at paragraph [92] above;

7. Professor Davis stated that it was the responsibility of the surgeon to look at the MRI images and form his own conclusions, as the decision to operate rests with the surgeon, irrespective of the views of respected radiologists: T372.1 – T372.22;

8. Professor Davis commented on the radiological request of Dr Jones, stating that it contained an error of anatomical description in that the reference to annulus pulposis instead of nucleus pulposis. Professor Davis agreed that it appears Dr Jones had incorrectly conflated his description: T375.30 – T376.2;

9. The distinction between nerve root irritation caused by a chemical process and nerve root compression due to a mechanical process are both recognised as potential contributors to pain: T376.7 – T376.26;

10. The experts explained that nerve irritation due to leakage or extrusion of disc material or the nucleus pulposis is due to chemical contact rather than physical pressure: T379 – T381.

Third concurrent evidence session – 17 September 2020

99. The first concurrent evidence by Professor Davis and Professor Sheridan was on 17 September 2020: T403 – T420. The following matters of relevance emerged:

1. This session was convened to enable a discussion on the MRI images. In that regard, Professor Sheridan had produced a further report dated 3 August 2020 (tendered as Exhibit “2”), 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 as explained at paragraph [92] above: T403.11 – T403.18;

2. Professor Sheridan marked Image 1 with two arrows at grid reference H6 to demonstrate first, the location of permeation of nucleus pulposis, and secondly, material traversing the nerve root: T404.15 – T404.20

3. That marking was identified in contrast to grid reference G5, which showed a normal nerve root that was not compressed: T404.31 – T404.46;

4. This evidence identified a disagreement between Professor Sheridan and Professor Davis on the interpretation of the scan as showing a compression: T405.10; T412.12;

5. The experts identified an area of disagreement on the interpretation of a 2005 journal article as to the connection between back pain and leg pain: T413.37 – T415.30. In my view, ultimately, nothing turns on that article or that disagreement in a prospective analysis of Dr Pope’s clinical decision making;

6. This session had to be adjourned for reasons of procedural fairness to enable the plaintiff’s counsel to read the journal materials which were referred to by the experts. The failure to address this issue in a timely manner occurred due to the inaction of the plaintiff’s solicitor: T415 – T420; T425.28 – T425.33. Ultimately, nothing turned on this material.

Fourth concurrent evidence session – 3 December 2020

100. The first concurrent evidence by Professor Davis and Professor Sheridan was on 3 December 2020: T425 – T434. The following matters of relevance emerged:

1. The purpose of this session was to reconvene and continue the previous truncated session after the parties, particularly the plaintiff’s side, had an opportunity to consider the series of published articles comprising Exhibit “3”: T425;

2. Professor Davis identified literature that in his view demonstrated that thoracic cord compression could cause sciatica: T427.11; T429.20 – T429.29;

3. Professor Davis identified that the referenced articles referred to patients with paraesthesia and pain in the lower limbs typical of sciatica: T427.19 – T427.45; T428.13 – T428.22;

4. In answer to that interpretation, Professor Sheridan indicated the articles within Exhibit “3” specifically described leg pain as distinct from paraesthesia or pins and needles: T430.9 – T430.23;

5. In response, Professor Davis produced a further explanatory paper which was tendered as Exhibit “B” in the voire dire: T432.17. Plainly, this caused procedural disadvantage to the defendant, and this session had to be adjourned: T434. Ultimately, nothing turned on this question.

Reports from consultant radiologists

101. Reports from the consultant radiologists, Dr James Bowden and Dr Michael Jones require review as follows.

Report of Dr James Bowden – 30 November 2019

102. The plaintiff’s solicitor obtained a report dated 30 November 2019 from Dr James Bowden, an interventional and diagnostic radiologist. It becomes unnecessary to review this report in detail as it deals with uncontroversial historical descriptions and it was tendered in a heavily redacted form which limits the analysis for its evidentiary utility: Exhibit “B”, Vol 2, pp 231 – 242

Reports of Dr Michael Jones – 30 April and 20 May 2020

103. The defendant’s solicitor retained Dr Jones, a radiologist, to review the plaintiff’s lumbar and thoracic imaging scans, to comment on Dr Pope’s treatment of the plaintiff, and to comment on Dr Bowden’s report dated 30 November 2019: Exhibit “B”, Vol 2, pp 391 – 410.

104. There is no utility in reviewing Dr Jones’ commentary on the report of Dr Bowden, particularly as there was a common view as to nomenclature of vertebral segments and the counting of vertebrae in view of the partial lumbarisation of L1, with an S1-S2 disc.

105. Dr Jones identified (at Exhibit “B”, Vol 2, p 396), the need to note that the issue of neural encroachment must be determined from clinical assessment, where the severity of radiculopathy does not necessarily match the size of a protrusion or the extent of neural encroachment. This was further explained in the oral evidence of the neurosurgeons as being related to the level of pain and numbness: T378.11 – T378.26.

106. Dr Jones identified (at Exhibit “B”, Vol 2, p 395), the mechanism whereby disc protrusions cause leakage of annulus pulposis material, a highly irritant substance, into the epidural space, which then sets up inflammation and can produce radiculopathy if it affects a nerve that is exiting through the intervertebral foramen or a descending nerve in the lateral recess of the spinal canal, where such radiculopathy can have a range of severities from mild to severe and disabling.

107. In other respects, Dr Jones was not qualified as an expert to comment on Dr Pope’s clinical management, one way or another.

108. Dr Jones’ report dated 20 May 2019 corrected a typographical error in his first report, and uncontroversially reviewed the CT and MRI scans. He provided some annotated copies of various images to illustrate his analysis. It is not necessary to review those at this point.

Reports from other neurosurgical/neurological specialists

109. Another historical neurosurgical report, from Dr Peter Bentivoglio, and a neurologist’s report from Dr Simon must be included in the analysis for completeness, as follows.

334. In that regard, in light of the absence of a report by the plaintiff of relevant symptoms that might suggest a thoracic cause, although Dr Pope foresaw the possibility of a thoracic cause, reasonably, he dismissed it as insignificant: s 5B(1)(a) and (b) of the CL Act. The investigatory precautions that the plaintiff contends for in relation to a potential thoracic cause therefore did not relevantly arise on account of that non-disclosure. The plaintiff has therefore not satisfied the mandatory requirement of s 5B(1)(c) of the CL Act for a finding of negligence in not pursuing a thoracic diagnosis in 2013, or thereafter until 2015.

Conclusion on alleged negligence

342. The plaintiff has not made good his claim that Dr Pope was negligent in any of the manners alleged.

343. Lest I be found to be wrong in the analysis of the s 5O defence and in respect of the negligence question, in accordance with convention, it remains necessary to consider the question of causation.

Issue 6 – Causation of harm

344. To sustain a finding of negligence that leads to an assessment of damages, the plaintiff must first satisfy the factual causation and scope of liability requirements of s 5D of the CL Act, which provides:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

345. Given my finding that the plaintiff has not established negligence, it would be inappropriate to identify alternative findings to the contrary. Accordingly, the causation analysis that follows, assumes that, for the sake of argument, the requirements of s 5B(1)(a) of the CL Act concerning factual causation have been satisfied, notwithstanding my findings to the contrary.

346. The remaining causation question to be considered concerns the scope of the defendant’s liability for any causally related damages incurred by the plaintiff. Consideration of those questions is confounded in this case by a number of factors that cannot be ignored.

347. The evidence of Professor Sheridan, which I have accepted, identified a lumbar disc herniation in 2013 which demonstrated an impingement which warranted surgery. Professor Sheridan demonstrated this in the annotated 2013 MRI scans as referred to at paragraph [92] above: Exhibit “2”, Images 1, 2 and 3.

348. In light of that evidence, I consider that from a causation perspective, the plaintiff is not entitled to have his damages assessed on the basis that his back surgery was unnecessary. In view of the clinical finding of impingement, and Dr Pope’s conclusion that the plaintiff’s symptoms were due to denervation, these being reasonable conclusions at the time, it would be inappropriate to award the plaintiff damages for the effects of that back surgery, including the additional localised pain which flowed from that surgery as foreseeable potential adverse consequences about which he had been adequately informed prior to the surgery.

349. On that analysis, the plaintiff is unable to extend the scope of Dr Pope’s argued liability to those back problems: s 5B(1)(b) of the CL Act.

350. The causation questions which remain to be considered relate to the effects of a 2 year delay in the plaintiff having the thoracic surgery, the plaintiff’s genito-urinary problems, and his psychological problems.

351. On the question of assessing the effects of the delay in having the thoracic surgery, that is, the delay in obtaining the earlier benefit of thoracic decompression surgery, there is a fundamental confounding factor that appears within the opinion of Professor Davis, as cited at sub-paragraph (3) of paragraph [78] above, where he indicated there was insufficient data to enable this question to be addressed: Exhibit “B”, Vol 2, pp 201 – 202.

352. The analysis of this issue is not clarified to the benefit of the plaintiff by the evidence of Professor Sheridan and Professor Davis as summarised at paragraphs [73] to [100] above. This is so especially where it is common ground that the plaintiff’s thoracic tumour was slow growing. Although Dr Bentivoglio expressed the general opinion to the effect the longer that spinal decompression surgery is delayed, the more likely it is there will be lasting neurological damage (Exhibit “B”, Vol 2, pp 464 – 468), it is nevertheless necessary to rationally quantify such a scenario for damages to be assessable on that account.

353. It is permissible to assess the issue of causation with the benefit of hindsight: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124]. The plaintiff carries the onus of proving causation: s 5E of the CL Act. In this case, such proof requires cogent medical evidence that provides a rational nexus for a causation finding to be made in the plaintiff’s favour.

354. In that regard the reports of Dr Steel and Dr Simon do not assist the plaintiff’s case on causation because there is no reliable baseline identified in 2013 to enable a differential comparison between the thoracic symptoms in 2013 and those that were ultimately recognised and acted upon in 2015.

355. Dr Simon identified a period of three years during which the plaintiff had right lower limb sensory symptoms in the context of a slow growing tumour. In those circumstances, and understandably, neither of Dr Simon’s 2015 or 2019 reports provide a rational non-speculative basis for identifying a discernible layer of additional damage that might be reasonably attributed to a delay in the plaintiff having thoracic surgery in that period.

356. The report of Dr Simon dated 26 June 2019 reiterated that the plaintiff’s right buttock pain and his symptoms reported on 5 August 2015 and 9 December 2016, were neuropathic in nature and they were related to compressive thoracic neuropathy: Exhibit “B”, Vol 2, pp 195 – 214. A differential analysis was not identified in that discussion. There is no evidence to suggest it could have been identified.

357. In my assessment, the medical evidence does not permit a reasoned non-speculative differential analysis that identifies a level of thoracic-related symptoms that existed in 2013, and a different level of such symptoms that existed in 2015, so as to enable a rational discernment of what might be considered to be a layer of symptoms that is compensable due to an argued delay.

358. The plaintiff bears the onus of proof to disentangle that issue. On the evidence adduced, I find that onus has not been satisfactorily discharged: Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, at [8]; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, at [4]; Glen v Sullivan [2015] NSWCA 191, at [43] – [51]; s 5D(1)(b) and s 5E of the CL Act.

359. That analysis is even further compounded by the variations in the mix of descriptions of the effect of the plaintiff’s experience of an exacerbating fall at his work on 22 August 2014.

360. Whilst the plaintiff and the neurosurgical experts considered there was no lasting exacerbating effect on the plaintiff’s sensory symptoms from that fall, in contrast, in his report dated 26 June 2019, Dr Simon recorded an account from the plaintiff that the fall caused back pain, which settled over a few days, but it also caused the plaintiff to suffer a worsening of the sensory disturbances in his right lower leg, which as at 2019, had continued to worsen: Exhibit “B”, Vol 2, pp 243 – 248.

361. In those circumstances, it seems at least some of those worsening effects could well be the result of a novus actus interveniens that would limit the scope for assessing damages. This further compounds the task of arriving at a reasoned causation analysis.

362. A consideration of the likely cause of the plaintiff’s genito-urinary complaints is also problematic. There has been no urological assessment of those complaints. Whilst some evidence emerged from the concurrent evidence of Professor Davis and Professor Sheridan to the effect that such problems can result from lumbar surgery, which of itself is another confounding factor, the unchallenged evidence in the report of Dr Bentivoglio dated 15 October 2017, which was based on a physical examination of the plaintiff at that time, was that the plaintiff’s genito-urinary problems remain unexplained and under-investigated. This was in circumstances where there is no evidence of the plaintiff having a cauda equina syndrome that might have otherwise explained those problems: Exhibit “B”, Vol 2, pp 464 – 468.

363. When Dr Brian Zeman, a consultant rehabilitation medicine specialist assessed the plaintiff on 12 February 2019 and prepared a report dated 3 March 2019 (Exhibit “B”, Vol 2, pp 502 – 510), he considered that the plaintiff’s current lumbar symptoms were due to the underlying lumbar condition for what Dr Pope originally operated. He also considered the plaintiff’s genito-urinary symptoms and bladder dysfunction were unlikely to be due to the lumbar surgery and were much more likely to be due to the gradual compression that the plaintiff experienced in his thoracic spine: Exhibit “B”, Vol 2, p 509. These unchallenged opinions raise causation obstacles for the plaintiff’s case.

364. Accordingly, the compelling conclusion is that the plaintiff has not discharged the onus of proving that his genito-urinary problems were relevantly caused by the assumed negligence of Dr Pope: s 5B(1)(b) and s 5E of the CL Act.

365. This leaves the question of the cause of the plaintiff’s undoubted ongoing psychological problems, however labelled, which on the foregoing analysis, is difficult to assess in terms of the causation analysis required by s 5D(1)(b) of the CL Act.

366. Nevertheless, some allowance has to be made for those problems when assessing non-economic damages, despite the confounding factors that weigh in the mix of factors requiring consideration.

367. Those matters will be taken up in the reasons for assessment of damages.

Issue 7 – Assessment of damages

368. In the paragraphs that now follow I set out my assessment of the plaintiff’s claim for damages.

Non-economic loss

369. On behalf of the plaintiff, it was submitted that damages for non-economic loss pursuant to s 16 of the CL Act should be assessed at 36 per cent of a most extreme case. In contrast, on behalf of the defendant, it was ultimately submitted that such damages should be assessed at 26 per cent of a most extreme case. That submission was made on the basis that, contrary to my findings, all of the plaintiff’s claimed problems had been caused by the assumed negligence of Dr Pope.

370. The assessment of such damages is an intuitive and evaluative exercise. I was impressed with the genuineness and understated nature of the plaintiff’s account of how the events described in the evidence have changed his life and his ability to enjoy the amenity of his life. Following the surgery to his lumbar spine, the plaintiff developed localised disabling back pain at the site of that operation. He also developed urological persisting genito-urinary problems and has feelings of despair about his future.

371. Whilst he understandably links these matters to the events of which he complains with regard to Dr Pope’s management of his condition, I must have due regard to the evidence already referred to on the causation issue as identified in relation to Issue 6.

372. Dr Kaplan’s psychiatric assessment of the plaintiff identified a Major Depressive Disorder and a Pain Disorder, including a Somatic Symptom Disorder. On behalf of the defendant, Dr Skinner’s assessment of the plaintiff was that he had an adjustment disorder with depression and anxiety. She accepted that he had a Somatic Symptom Disorder which she characterised as an excessive focus and overemphasis on complaints of physical symptoms such that this has hindered his recovery, although like Dr Kaplan, she accepts the plaintiff would benefit from a formal multi-disciplinary pain management treatment programme.

373. In considering the semantic differences in the respective psychiatric descriptions, in my view, Dr Skinner’s formulation pays insufficient regard to the effect the described physical problems have had on the plaintiff as it downplays the plaintiff’s subjective account, which I accept as truthful.

374. The adverse effect the described problems have had on the plaintiff’s life, physically and psychologically have been profound and they are likely to remain as permanent features.

375. I have taken into account the post-operative reports of Dr Steel and Dr Simons. I have also taken into account the fact that the plaintiff faces the prospect of further lumbar treatment comprising repeat foraminal injections in his spine under CT guidance, and major surgery for anterior lumbar discectomy and fusion, as foreshadowed in the report of Dr Steel dated 18 January 2016: Exhibit “B”, Vol 2, p 293

376. I have also taken into account the occupational therapy recommendations for the plaintiff’s future management, which will plainly have an adverse impact upon his enjoyment of the amenity of his life, albeit that not all of those recommendations can be directed to the assumed negligence that has been claimed: Exhibit “B”, Vol 2, pp 250 – 277.

377. If the plaintiff had succeeded in his claim, in its entirety, these matters would have called for a substantial assessment in terms of a comparison with a most extreme case according to the requirements of s 16 of the CL Act. In those circumstances, the submitted assessment of 38 per cent would have been apt.

378. However, that approach must be discounted in conformity with my causation findings. Doing the best I can to be fair to the plaintiff and not unfair to the defendant, I would have assessed the plaintiff’s damages for non-economic loss at 30 per cent of a most extreme case which according to the current assessment table, equates to $159,500.

Past economic loss

379. On behalf of the plaintiff, it was submitted that damages for past economic loss should be assessed at $130,000 plus the commensurate loss of employer funded superannuation benefits. The base sum for that calculation was derived from an assumed average partial loss of earnings of $500 per week net over 260 weeks to the date of hearing. There is no suggestion that the plaintiff has unreasonably failed to mitigate his losses so as to require these damages to be discounted. In contrast, the defendant submitted that the plaintiff should not be awarded any damages for past economic loss. If the plaintiff’s liability and causation case succeeded, that submission could not be accepted.

380. If my liability and causation findings were set aside with the effect that the plaintiff’s liability and causation case was accepted, I would have assessed as reasonable the plaintiff’s claim for past economic loss in the sum of $130,000.

Past loss of superannuation

381. On the foregoing approach, if past economic loss was to be assessed at $130,000, the consequential claim for past loss of employer funded superannuation at 9.5 per cent on $130,000 yields the amount of $12,350.

Future loss of earning capacity

382. On behalf of the plaintiff it was ultimately submitted that damages for future loss of earning capacity should be assessed at $250,000. In contrast, the defendant submitted that the plaintiff should not be awarded any damages for future loss of earning capacity.

383. If the plaintiff’s case had been accepted, having regard to the opinion of Dr Zeman, he should be seen to be unfit for heavy manual work, including lifting and bending and the prospect of vocational re-training was raised as a serious suggestion in his case: Exhibit “B”, Vol 2, p 510.

384. The occupational therapy assessment carried out on 13 February 2019 indicates that there is a range of the heavier normal commonplace day-to-day activity that would cause difficulty for the plaintiff: Exhibit “B”, Vol 2, p 256. Those restrictions would obviously carry over into work-related activity.

385. In the case of a young man aged 33, with at least the equivalent number of working years ahead of him, those matters justify a buffer approach rather than the projection of a precise weekly loss based on artificial assumptions as to a weekly loss for projection on assumed likely future circumstances: s 13 of the CL Act; Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

386. The evidence cited justifies an award for future loss of earning capacity: Paff v Speed (1961) 105 CLR 549, at p 566; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5.

387. In those circumstances, on the basis that the plaintiff’s liability and causation case would have been accepted, I consider a reasonable buffer amount for future loss of earning capacity would be $250,000, including employer funded superannuation entitlements that would follow from such a loss of earning capacity.

Future domestic assistance

388. On behalf of the plaintiff it was ultimately submitted that damages for future domestic assistance should be assessed in the buffer amount of $50,000. In contrast the defendant submitted that there should be no award for this head of damage.

389. The opinion of Dr Zeman supports a claim for an average of about 2 hours per week for assistance with heavier domestic tasks: Exhibit “B”, Vol 2, p 510. The amount of time is imprecise and the likely timing of onset for the full extent of that need is not capable of precise estimation or calculation.

390. In those circumstances I consider a discounted buffer sum of $40,000 would represent a fair and reasonable assessment for this head of damage.

Future out-of-pocket expenses

391. The evidence suggests the plaintiff will incur considerable future expense for medical, allied and surgical treatment. The damages schedule conceded that this head of damage should be assessed in the sum of $10,000.

392. This element of claim is not precisely calculable as there are significant imponderables, including as to causation. Putting aside the latter consideration for the purpose of argument, if the plaintiff’s liability case had succeeded, and having regard to considerations of uncertainty over the timing of various future elements of expenditure, I consider that a fair and reasonable buffer allowance should be made in the amount of $20,000.

Past out-of-pocket expenses

393. In the defendant’s oral submissions, counsel identified the fact that the plaintiff’s out-of-pocket expenses had not been the subject of agreement: T459.10. It was made clear that it was the obligation of the plaintiff’s solicitor to attend to this basic issue or face a finding that no out-of-pocket expenses have been proven: T459.24 – T459.41.

394. Leave was given for the plaintiff’s solicitor to forward a note evidencing an agreement on out-of-pocket expenses: T465.46 – T466.1. It remains puzzling as to why the solicitor for the plaintiff did not take up that opportunity.

393. The Court Book contains a copy of a Medicare schedule in the total amount of $6632.30: Exhibit “B”, Vol 2, p 525. Without annotation, agreement or formal evidentiary proof of a nexus between that amount and the issues in the proceedings, regrettably, I am compelled to find that the plaintiff’s claim for out-of-pocket expenses remains unproven.

Summary of damages assessment

396. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non-economic loss	$159,500
(b) Past economic loss	$130,000
(c) Past superannuation losses	$12,350
(d) Future economic loss	$250,000
(e) Future domestic assistance	$40,000
(f) Future treatment expenses	$20,000
(g) Past out-of-pocket expenses	(not proven)
Total	$611,850

Disposition

397. The plaintiff has not succeeded in establishing that Dr Pope is liable to him in damages. Dr Pope is entitled to a verdict and judgment in his favour with costs. If the plaintiff’s claim had been successful damages would have been assessed in the amount of $611,850.

Orders

398. I make the following orders:

1. Verdict and judgment for the defendant;

2. The plaintiff is to pay the defendant’s costs on the ordinary basis unless otherwise ordered

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

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Amendments

21 December 2021 - Correction of typographical error in Table of Contents

Decision last updated: 21 December 2021