Fuller v Australian Capital Territory - [2024] ACTCA 19

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Fuller v Australian Capital Territory
Citation:	[2024] ACTCA 19
Hearing Date:	22 August 2023
Decision Date:	5 July 2024
Before:	McCallum CJ, Baker and Taylor JJ
Decision:	(1) The appeal is allowed. (2) Set aside the orders made on 22 December 2022. (3) In lieu thereof, order that judgment be entered for the appellant. (4) Remit the proceedings to the Supreme Court for an assessment of damages on the basis that the scope of liability includes radiculopathy.
Catchwords:	APPEAL – NEGLIGENCE – Medical Negligence – Appeal from the Supreme Court – anaesthetist – where a spinal needle used to administer spinal anaesthetic in a planned caesarean section broke – whether the primary judge erred in relying on a witness’ evidence to make certain factual findings – whether the spinal needle should have been replaced before further attempts – whether the primary judge erroneously applied s 5O of the Civil Liability Act 2002 (NSW) – whether the failed administration of the anaesthetic caused the appellant’s injuries – assessment of the primary judge’s factual findings – consideration of the primary judge’s use of the expert evidence – appeal allowed – matter remitted to the Supreme Court for assessment of damages
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 44 Civil Liability Act 2002 (NSW), s 5O Supreme Court Act 1933 (ACT), s 37E
Cases Cited:	Austen v Tran [2023] ACTCA 44 Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233 DeVries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 Fox v Percy [2003] HCA 22; 214 CLR 118 Fuller v Australian Capital Territory [2022] ACTSC 361 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Rogers v Whitaker [1992] HCA 58; 175 CLR 479 Rosenberg v Percival [2001] HCA 18; 205 CLR 434 Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 Warren v Coombes [1979] HCA 9; 142 CLR 531 Waugh v Kippen [1986] HCA 12; 160 CLR 156 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
Parties:	Bronwyn Fuller (Appellant) Australian Capital Territory (Respondent)
Representation:	Counsel R McIlwaine SC with D Richards (Appellant) M Fordham SC with S McCarthy (Respondent)
Solicitors United Legal (Appellant) ACT Government Solicitor (Respondent)
File Number:	ACTCA 4 of 2023
Decision Under Appeal:	Court: ACT Supreme Court Before: Robinson AJ Date of Decision: 22 December 2022 Case Title: Fuller v Australian Capital Territory Citation: [2022] ACTSC 361 Court File Number: SC 299 of 2021

THE COURT:

Introduction

1․On 14 February 2020, the appellant, Bronwyn Fuller, was administered spinal anaesthetic for the purposes of a planned caesarean section at The Canberra Hospital. During the procedure, the spinal needle being used to administer the anaesthetic broke into two pieces, with one piece remaining in the appellant’s back. The broken spinal needle was quickly surgically removed, and the appellant went on to successfully deliver her child that day via caesarean section under general anaesthetic. The appellant alleges she suffered psychological, neurological and physical injury as a result of the failed attempt to administer the spinal anaesthetic.
2․The appellant sued the respondent, the Territory, as vicariously liable for alleged negligence by the anaesthetic registrar (Dr Abeygunasekara) and consultant anaesthetist (Dr Stephens), both of whom attempted to administer the spinal anaesthetic. The spinal needle broke when Dr Stephens attempted the procedure, having taken over from Dr Abeygunasekara after his unsuccessful attempts.
3․On 22 December 2022, Robinson AJ made orders dismissing the appellant’s claim, finding negligence had not been established and ordering the appellant to pay the defendant’s costs: Fuller v Australian Capital Territory [2022] ACTSC 361 (Fuller).
4․The appellant appeals from those orders, seeking that:
(a)judgment be entered in her favour;
(b)the costs of the proceedings below and in the appeal be paid by the respondent; and
(c)the matter be remitted to the Supreme Court to assess quantum.

5․The respondent filed a Notice of Contention on 10 July 2023 disputing causation as between the neurological injuries and the alleged breach of duty.
6․For the reasons outlined below, the appellant has not established that the primary judge erred in his factual findings concerning the circumstances in which the spinal needle broke. However, accepting those factual findings, the primary judge should have found that the appellant had established negligence on the part of the respondent. Both breach of duty and causation were established. It follows that the Notice of Contention should be dismissed and the appeal allowed. As the primary judge did not make an assessment of damages, it is necessary for the proceedings to be remitted for an assessment of quantum.

The primary proceedings

The administration of the spinal anaesthetic

7․The primary judge set out the agreed general approach to be taken to the administration of spinal anaesthetic: Fuller at [9]-[12]. For the purposes of this appeal, the process can be described in short as follows: the operator injects local anaesthetic into the relevant area before inserting one needle (an introducer needle) between the chosen vertebrae to a short depth and then inserting a thinner, longer needle (the spinal needle) via the introducer needle to inject anaesthetic into the space between the vertebrae and the lumbar spine (the subarachnoid space). When positioned correctly, spinal fluid will begin to flow from the spinal needle prior to the injection of anaesthetic. Two needles are required due to the fine nature of the spinal needle, the introducer needle providing the initial support required to push past the skin.
8․The agreed facts regarding the administration of the procedure to the appellant on 14 February 2020 were set out in Fuller at [14]-[18]. There was no criticism or dispute about the preparation for the procedure, with which Dr Abeygunasekara and Dr Stephens were involved: Fuller at [15].
9․Dr Abeygunasekara first proceeded to administer the procedure. He unsuccessfully attempted to insert the spinal needle on a number of occasions. Dr Stephens, who was supervising Dr Abeygunasekara, then took over, using the same spinal needle that had been used by Dr Abeygunasekara. Dr Stephens was also unsuccessful in her attempt to insert the spinal needle. When she withdrew the spinal needle, she found that it had broken in two. The second half of the spinal needle remained in the appellant’s back.
10․A senior neurosurgeon, Dr McDowell, was called. Within 15 minutes, he had attended, found and removed the other half of the spinal needle from the appellant’s back. His record of the procedure records the spinal needle as retrieved from L3/4.
11․Although there was no dispute as to the general course of events as outlined above, the evidence of the two anaesthesiologists relating to the precise circumstances in which the spinal needle came to be broken “differed in material respects”: Fuller at [25]. Those differences included how many times the spinal needle was inserted and/or redirected before Dr Stephens took over and the order of the locations that the needle was initially inserted.
12․Dr Abeygunasekara gave evidence that he began at position L4/L5 of the appellant’s back, inserted local anaesthetic, the introducer needle and then the spinal needle, but “[was not] successful because [he] hit bone”: Fuller at [20]. He then tried to redirect the introducer needle, he said, each time pulling the spinal needle completely out, but was again unsuccessful on each attempt. Dr Abeygunasekara gave the following evidence about the number of occasions that he attempted the procedure:
You said you made a number of attempts but you didn't give a number and if you can't remember, you can't remember but was it three, four, five, six attempts? This is just at L4-5?---You mean how many times I would have redirected the needle?
Yes?---I can't remember how many times.
Are you able to say – this is an important issue for the court?---Yes.
Are you able to say it was more than one?---Yes.
Would it be more than five?---No.
Somewhere between – would it be more than two?---Usually two or three times would be my standard practice.
That's a redirection. So you haven't moved the introducer?---So I move the – it's the introducer that I redirect. I take the spinal needle out, then I redirect the introducer.
So when you take it out, do you pull it right out?---Completely out.
So you're literally holding it free?---Yes, I'm holding it out – outside the patient's body, yes.
Are you doing that with your right hand?---I take the spinal needle out with my right hand, redirect the introducer with my left hand.
So for each of these two or three times - - -?---Yes.
- - - if that's what happened - - -?---Yes.
- - - you then – you've got the needle out with your right hand and you're holding the introducer and you're moving it up, down, left, right to try to find the space?---Not to find the space but to redirect essentially, yes.
HIS HONOUR: Doctor, it may be a very important bit of this case and I just want to see whether we can get any more clarity from you?---Yes, your Honour.
I think you said two or three was your practice. Can you do any better than that in terms of memory? I don't want to - - -?---Yes.
I'm not suggesting you can or can't. I'm just - - -?---I wouldn't be comfortable connecting to an exact number, your Honour. I have – my standard practice in terms of what I do is every redirection is done with the feedback we receive from the initial attempt. So we redirect thinking that we're either hitting bone because we're hitting a spinous process, in which case I'd redirect up or down, or if I'm hitting what you call a transverse section, which is the bones on either side, I'd redirect either what we call medial - - -
But that's why you do it?---Yes.
But can you be any more precise on this occasion - - -?---Yes.
- - - whether you did two or three redirects when you were dealing with L4-L5?---I'm not 100 per cent sure, your Honour.
MR RICHARDS: Can I ask this question? Is it possible that you would have - because you weren't successful. Is it possible you could have done five?---No. I would not redirect that many times.
Good. Thank you. Is it possible you may have done four?---It is possible, yes.
So your evidence then as I understand it, it would be, your usual practice, two or three, up to a maximum of four times?---Based on the feedback I received, yes. Yes.
HIS HONOUR: The feedback which you are there talking about is the feedback from what the feel of the patient is?---Yes, your Honour.
Right. Not feedback from any other person?---Sometimes – in this case, I can't comment. Sometimes a patient will tell you that they feel the needle on the right side, which is something I ask, and that will – that's valuable feedback in terms of how I redirect.
Yes. So that's feedback from the patient?---Plus – yes, yes.
Yes. And you don't remember any feedback from the patient?---I don't remember, your Honour, no.
13․Dr Abeygunasekara’s evidence was that he then tried the vertebrae level above (L3/L4) but was again unsuccessful at inserting the spinal needle. Regarding the attempts in this second location, Dr Abeygunasekara was uncertain how many times he redirected the spinal needle at the second location. He gave the following evidence:
When you moved levels, when you moved up to L3-4, similar questions to the last occasion, how many times did you redirect or attempt to redirect before Dr Stephens took over?---I can't remember exactly how many times.
Would it be similar to your last evidence, your usual practice is up to two to three times but it could have been up to a maximum of four times?---It's hard for me to say but I would not redirect – usually not redirect more than a couple of times.
I just want to be clear on that because your evidence with the other level - - -?---Like I said, I'm not sure exactly how many times I redirected.
And again I'm not trying to be difficult but up to a maximum of four times?---Yes.
You'd accept that. You would only redirect up to a maximum of four times?---Yes, usually.
You're redirecting because you're trying to find the gap?---The space, yes.
The space to get through so you can use the anaesthetic?---Yes.
So would you accept that with the both levels together, you may have redirected up to a maximum of eight times but possibly – I mean - - -?---Yes.
- - - we're trying to do the best we can with something that happened a couple of years ago?---I understand, yes.
But your usual practice would be somewhere between four and six times, both of them together?---Usual practice would be, if I do fail at one level, I'd try at another level and redirect.
I don't think I made myself clear. The total number of redirections at both levels based on your earlier evidence would be a total number of between four, so between two and three on each, and six, three on each, and up to a maximum of eight times, maximum four at L4-5 and a maximum of four at L3-4, is that - - -?---That is my usual practice. I've never had to redirect more than that, yes.
14․Dr Stephens gave evidence that Dr Abeygunasekara initially inserted at L3/L4, that he made one redirection at this level and then made one further attempt at L4/L5, after which point he withdrew entirely and placed the spinal needle on a tray.
15․Dr Stephens stated she observed the spinal needle and did not notice any deformity. She said that she then inserted the introducer and the spinal needle into the appellant’s back. She said she felt she was able to go deeper than Dr Abeygunasekara, but when no spinal fluid appeared, she pulled out both needles. When both needles were removed, she realised that the spinal needle had broken in two and that a portion of the spinal needle remained in the appellant’s back.
16․Dr Stephens recalled that the broken part of the spinal needle that was extracted by Dr McDowell was around 40mm in length and was slightly frayed and bent.
17․Dr Stephens recalled the broken spinal needle being located at L4/5 and Dr Abeygunasekara at L3/4. The surgeon, Dr McDowell, was not called to give evidence to clarify the apparent difference in the evidence of the anaesthesiologists as to the location of the portion of the spinal needle he retrieved from the appellant’s back.
18․Evidence regarding the extracted spinal needle’s appearance also differed between witnesses. The appellant’s husband described the broken half of the spinal needle as curved “like a banana” or that he might have said it looked like “a fish hook”. Dr Stephens recalled that the spinal needle was straight but the end closest to the outside was “just a little bit bent” and “if you looked at it very closely you could see it was just a little bit frayed, like when you’ve bent a piece of metal”. Neither were cross-examined on this issue. Dr Abeygunasekara was not asked if he ever saw the extracted spinal needle, and, as already noted, the surgeon who removed the spinal needle, Dr McDowell, was not called as a witness. The appellant did not see the piece of spinal needle after it was removed from her back.

The factual findings of the primary judge

19․The primary judge determined to rely on the evidence of Dr Stephens where it differed to the evidence of Dr Abeygunasekara. Accordingly, the primary judge acted on the spinal needle having been used to attempt the procedure on three occasions when Dr Stephens made her own attempt, and the spinal needle broke. It was on this factual basis that the primary judge determined that the appellant had not established negligence.
20․The primary judge determined that, where there was conflict between the two doctors administering the procedure, his Honour preferred the evidence of Dr Stephens, citing the following factors (Fuller at [37]):
(i)Dr Abeygunasekara conceded he did not have a complete recollection of the incident;
(ii)Dr Abeygunasekara was inexperienced, and his narrative indicated reconstruction of the incident based on what he thought would have occurred;
(iii)Dr Stephens made contemporaneous notes of the event and Dr Abeygunasekara did not;
(iv)the likelihood of Dr Abeygunasekara “redirecting” the spinal needle on multiple occasions while under the direct supervision of Dr Stephens; and
(v)the way in which Dr Stephens gave her evidence provided a basis for confidence as to her version of events, including her accurate identification for Dr McDowell as to the location of spinal needle in the appellant’s back.

21․The primary judge had “no doubt” that Dr Stephens would have been observing, correcting or otherwise commenting on any errors made by Dr Abeygunasekara, including making observations as to whether Dr Abeygunasekara used “excessive pressure to force the needle”: Fuller at [38].
22․During closing submissions, the respondent’s counsel made an oral application to resume the hearing to call Dr McDowell, but shortly thereafter withdrew that application. The primary judge was asked to draw a Jones v Dunkel [1959] HCA 8; 101 CLR 298 (Jones v Dunkel) inference from the failure to call Dr McDowell, but declined to do so, finding that the failure was “an oversight” by the respondent and, in any event, that his Honour could not conclude that the evidence would have assisted the appellant’s case: Fuller at [53].
23․Having accepted Dr Stephens’ evidence, the primary judge then made the following relevant factual findings:
(i)Dr Abeygunasekara made two unsuccessful attempts (an insertion and a redirection without withdrawing the needle) and a further attempt at L3/4 before withdrawing the introducer and the spinal needle. Dr Abeygunasekara then moved to L4/5 and made one further unsuccessful attempt before he removed the introducer and spinal needle again and placed them on a sterile surface.
(ii)Dr Stephens then attempted the procedure at the L4/5 site. The absence of spinal fluid caused her to withdraw the introducer and the spinal needle, whereupon she discovered the broken needle.
(iii)The spinal needle was recovered by Dr McDowell at the point where Dr Stephens had indicated “a hole” to Dr McDowell.

24․The primary judge held that the broken spinal needle was not hook shaped at the time of its removal (Fuller at [39](m)), again preferring the evidence of Dr Stephens, on the basis that she was better positioned to observe the spinal needle and the appellant’s husband was primarily focused on caring for his wife, who was “in a very high state of anxiety if not terror”: Fuller at [54]. The primary judge referred to the evidence that Mr Fuller gave about his wife’s demeanour upon his arrival into the area where his wife was awaiting the procedure performed by Dr McDowell, when he said, “so I go around to [the appellant], she’s absolutely petrified. There is no sort of movement from her. She’s like, how you would put it, like frozen”: Fuller at [42]-[43].
25․The primary judge concluded that, based on the facts as his Honour found them, “the most likely explanation for the broken spinal needle was that Dr Stephens hit bone or hard ligamentous material” when inserting the spinal needle. His Honour determined that, in the alternative, the spinal needle broke when it was pulled back through the introducer by Dr Stephens, having been bent or deformed during insertion: Fuller at [64].

The findings as to damages of the primary judge

26․The primary judge went on to make some further observations in Fuller at [82]-[94] under the heading “Additional findings”, “in case” his Honour was wrong on the question of liability. Those findings included a consideration of two expert reports. The appellant relied on a report from Dr William Patrick, a General, Vascular and Trauma Surgeon, and Medico-Legal Specialist. The respondent relied on a report from Dr David Gorman, a consultant General Physician, Pain Management Physician and Medical Oncologist.
27․Dr Patrick concluded that the appellant was suffering lower limb radiculopathy.
28․Dr Gorman concluded that the appellant did not have radiculopathy. His Honour recorded that Dr Gorman considered that the “psychological effects of the alleged negligence have been responsible for the focus on and perpetuation of the symptoms rather than any physical injury”: Fuller at [91].
29․The primary judge concluded in Fuller at [92]-[94]:
92. I prefer the evidence of Dr Gorman to that of Dr Patrick. In summary, the conclusions of Dr Gorman based on his physical examination and examination of the medical records accord more consistently with other medical evidence which I have accepted including the likely signs of what would have been observed in the immediate aftermath of the spinal needle striking a nerve and damaging it on 14 February 2020. Dr Patrick was, of course, unable to examine the patient physically through unusual circumstances. However, Dr Patrick was cross-examined before me and I formed the view that he was an advocate for a cause and that, accordingly, his views were less persuasive than those of a dispassionate expert.
93. That, of course, does not mean that [the appellant] would not receive compensation for her physical injuries but that compensation would take into account the likely recovery under that diagnosis.
94. On the issue of [the appellant]’s psychiatric state, only one report was in evidence. Dr Parmegiani was of the opinion that the traumatic event of 14 February 2020 caused [the appellant] to suffer from post-traumatic stress disorder. I accept the diagnosis and the suggestions made by Dr Parmegiani for future treatment.
30․The Notice of Contention seeks to preserve this finding, if it was indeed made, in the event the appellant is successful in this appeal.

Grounds of appeal

31․The Amended Notice of Appeal, dated 1 August 2023, raised 10 grounds of appeal:
4A.   The primary Judge was in error in failing to find that Dr Stephens was negligent by failing to replace the spinal needle when she took over from Dr Abeygunasekara.
4B.   The primary Judge was in error when finding that Dr Stephens acted in a manner accepted as competent professional practice by not replacing the spinal needle when she took over from Dr Abeygunasekara.
4C.   The primary Judge was in error by preferring the evidence of Dr Stephens to the evidence of Dr Abeygunasekara as to the administration of the spinal anaesthetic, in relation to the number of times he redirected at spinal level L4/5 and L3/4.
4D. The primary Judge's finding that he preferred the evidence of Dr Stephens to the evidence of Dr Abeygunasekara as to the number of times Dr Abeygunasekara redirected at spinal level L4/5 and L3/4 was glaringly improbably [sic], and/or contrary to compelling inferences.
4E.   The primary Judge was in error in finding that the evidence of Dr Stephens as to the number of times Dr Abeygunasekara was more probably [sic] than the evidence of Dr Abeygunasekara.
4F.   The primary Judge was in error in finding that the evidence of Dr Stephens as to the number of times Dr Abeygunasekara redirected at spinal level L4/5 and L3/4 was reliable.
4G. The primary Judge was in error in failing to draw an adverse Jones v Dunkel inference against the Respondent in terms of Dr Stephen’s evidence by failing to call Dr McDowell and Dr Sethna to give evidence about the appearance of the broken needle when it was withdrawn.
4H.   The primary Judge was in error in failing to draw an adverse Jones v Dunkel inference against the Respondent in terms of Dr Stephen's evidence by failing to call Dr McDowell and Dr Sethna to give evidence about the spinal level at which the spinal needle broken.
41.   The primary Judge was in error failing to identify which injuries and finding the Appellant was likely to make a good recovery from those injuries.
4J.   The primary Judge failed to make a provisional assessment of damages.
32․The grounds of appeal were refined without objection in oral submissions during the hearing of the appeal. The issues to be determined on this appeal can be conveniently collated and summarised as follows:
(a)Did the primary judge err in accepting the evidence of Dr Stephens to find that Dr Abeygunasekara had used the spinal needle on three occasions when she took over the procedure (encompassing appeal grounds 4C, 4D, 4E, 4F, 4G and 4H)?
(b)Should Dr Stephens have replaced the spinal needle before her own attempt to administer the spinal anaesthetic (encompassing appeal grounds 4A and 4B)?
(c)Did the trial judge erroneously apply s 5O of the Civil Liability Act2002 (NSW) (the Civil Liability Act) (encompassing appeal grounds 4A and 4B)?
(d)Did the failed administration of the spinal anaesthetic by Dr Stephens cause the appellant to suffer a neurological injury, namely radiculopathy (encompassing appeal grounds 4I and 4J and the Notice of Contention)?

Standard of review

33․This appeal is governed by Pt 2A of the Supreme Court Act 1933 (ACT) at s 37E. It is an appeal in the nature of a rehearing, albeit error must still be demonstrated: see Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 at 146 [5].
34․In an appeal of this nature, an appellate court is required to give the judgment which it considers ought to have been given in the primary proceedings, and in doing so, respect the limitations that exist where the rehearing is conducted substantially or wholly on the record: see Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy) at 125-128 [23]-[29]. An appellate court will generally be in as good a position as the primary judge to decide on the proper inferences to be drawn from the facts, though, as outlined in Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551:
[I]n deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

(a) Was the trial judge in error relying on the evidence of Dr Stephens to make factual findings?

The parties’ submissions

35․The findings of fact made by the primary judge were based on his assessment that the evidence of Dr Stephens was more reliable than the evidence of Dr Abeygunasekara. The appellant challenges this approach and takes issue with the way the primary judge dealt with the absence of evidence from Dr McDowell. In our view, the appellant has not demonstrated error on the part of the primary judge in relation to the factual findings his Honour made.
36․The primary judge set out six reasons as to why his Honour preferred the evidence of Dr Stephens where it differed to Dr Abeygunasekara, extracted above at [20]. The appellant submitted that the findings of fact were flawed, relying on three matters to impugn the findings as to the reliability of the evidence of Dr Stephens.
37․Firstly, that the contemporaneous record Dr Stephens made of the procedure, as well as her description of Dr Abeygunasekara starting his first attempt at administering the spinal anaesthetic at L3/4 before moving to L4/5, was inconsistent with Dr Abeygunasekara’s description of what he did. Further, that it was inconsistent with where the spinal needle was located by Dr McDowell at L3/4, as recorded by him.
38․Secondly, Dr Stephens’ description of the number of attempts made by Dr Abeygunasekara at each site was inconsistent with the evidence given by Dr Abeygunasekara.
39․Finally, the appellant pointed to the difference in the description of the appearance of the spinal needle by Dr Stephens and Mr Fuller after Dr McDowell successfully removed it as a matter significantly adverse to the credibility of Dr Stephens and a further basis upon which to reject her version. In this respect, the appellant takes issue with the way the primary judge dealt with the absence of evidence from Dr McDowell.
40․The respondent submitted that the primary judge was entitled to rely on the evidence of Dr Stephens where it differed from Dr Abeygunasekara’s and Mr Fuller’s, citing DeVries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479:
More than once in recent years, the Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was glaringly improbable.

The correctness of the primary judge’s factual findings

41․In our view, the reasoning in support of the factual findings does not demonstrate error. The findings of fact were made in circumstances where there was no objective physical evidence by which to measure the accuracy or reliability of the evidence: cf Fox v Percy at 129-130 [33]-[35] (Gleeson CJ, Gummow and Kirby JJ). The portion of the spinal needle that was removed from the appellant’s back was not in evidence, nor were there any photographs or medical imaging available. His Honour was therefore, in the environment of the trial, required to assess the version of events provided by each witness and determine which evidence his Honour accepted.
42․There are several factors relevant to the assessment of the reliability of the evidence.
43․As distinct from Dr Stephens, who was firm that she had an independent recollection of her involvement with the appellant, Dr Abeygunasekara readily conceded that he did not have a full memory of his participation in the procedure. Further, he did not make a contemporaneous record of his participation in the procedure, relying instead on Dr Stephens’ record of the detail of the incident. The contemporaneous notes of Dr Stephens and Dr McDowell were in evidence and Dr Stephens was taken line-by-line through her notes during her evidence. Dr Stephens was not asked to reflect on the difference in her notes in terms of where she identified the spinal needle breaking off (L4/5) and Dr McDowell’s note of where he removed the spinal needle from (L3/4).
44․Dr Abeygunasekara’s explanation of how he commenced the procedure was “from memory I initially went in at L4/5 which was my initial part and I was not successful and then I tried the level above after, which is level L3/L4”. Dr Abeygunasekara then described, “so what I did was I redirected, but I was still unsuccessful. I can’t remember how many times I redirected”.
45․In cross-examination, Dr Abeygunasekara was only able to say he redirected at L3/4 more than once but not more than five times, identifying that his standard practice is “usually two or three times”. While Dr Abeygunasekara said he would not be comfortable “connecting to an exact number”, he agreed it was possible he may have done four redirections at L3/4, though clarified that he would “usually not redirect more than a couple of times”. Dr Abeygunasekara was not asked to clarify whether, when describing his usual or standard practice, he was referring to his practice as at the time he attended to the appellant (noting he had only performed the procedure on a small number of occasions at that time) or the practice he had developed as his career progressed in the years after the event occurred.
46․Dr Abeygunasekara explained that he understood a “re-direct” in this way:
So I usually take the initial spinal needle out and – the spinal needle itself has two parts. The inner needle we normally do it once we think we’re in the right space, so it’s the actual needle itself that I took out. Then I repositioned the introducer and then put the spinal needle in again. Yes.
47․Later in evidence, Dr Abeygunasekara clarified that when he described taking the “needle out” during a redirection, he was describing taking the spinal needle “completely out”. He said this involved taking the spinal needle out with his right hand and redirecting the introducer with his left hand. Dr Abeygunasekara said after redirecting at L3/4, he “still hit bone”.
48․Having conceded that he did not have a full memory of the event, much of Dr Abeygunasekara’s evidence was couched in terms of his “usual practice”. He was particularly uncertain as to the number of occasions he “redirected” at each site. Further, Dr Abeygunasekara could not say at what level Dr Stephens entered when she took over the procedure.
49․In her evidence, Dr Stephens drew a distinction between an “attempt” at inserting the spinal needle and a “re-direct”, explaining that a “re-direct” occurs when the positioning of the spinal needle is adjusted without fully removing the spinal needle. She described Dr Abeygunasekara as inserting the needle initially at L3/4 and performing one re-direction by pulling the spinal needle back without removing it entirely. She described Dr Abeygunasekara inserting the spinal needle at L4/5 and “hitting bone” before then removing the spinal needle entirely and handing it over to her. She made clear that her recollection was of Dr Abeygunasekara hitting bone twice at L3/4 and once at L4/5. Dr Stephens explained that it was possible to tell when bone was struck, saying:
[I]t sounds difficult to believe but even with this tiny needle and watching from a metre away you can see when they hit something solid as opposed to when they’re passing through the tough ligaments that hold your bones together. You can – you can actually tell.
50․There was a lack of clarity in the evidence about what was understood to be an attempt, also referred to as a “redirection” of the spinal needle revealed particularly in the evidence of Dr Abeygunasekara and Dr Stephens. The difference in definition as between Dr Abeygunasekara and Dr Stephens of what was meant when describing a “redirection” was not specifically dealt with during the course of the primary judge’s reasons. Nor was it addressed during the course of Dr Abeygunasekara’s or Dr Stephens’ evidence. This was not helped by Dr Stephens being called to give evidence before Dr Abeygunasekara. The expert conclave did eventually attempt to define a “redirection”. The experts in the conclave, Dr Ross MacPherson for the appellant and Dr Keith Liyanagama for the respondent, ultimately agreed that an attempt involved “bringing the needle back close to the surface, doing a major redirection and then inserting it again”. This description was in keeping with the definition Dr Stephens adopted in her evidence, being a movement or adjustment of the spinal needle that did not see it completely removed from the skin.
51․The expert conclave referred to an initial insertion of the spinal needle into the skin, or pulling the spinal needle entirely out and reinserting it back into the skin, as a “pass”. Dr MacPherson, with whom Dr Liyanagama agreed, expressed the view that both a pass or an attempt (a redirection) involved the spinal needle being moved and pushed. It is this movement of the spinal needle, whether pulled entirely out or not, that was the compelling feature. Dr MacPherson said:
I mean, I’m tempted to say that in a way, this desire to try and pin down a definition between a pass and an attempt, I don’t really know that it makes an enormous amount of difference because at the end of the day, you’ve pushed the needle in somewhere and it’s – nine times out of 10 it’s hit another structure, so that’s no good. So I need to have another attempt. Now, whether you simply redirect the needle or whether you pull it all out and start all over again, the previous attempt or pass has resulted in an impact between the needle and the bone.
So in a way it doesn’t matter in my mind whether - you know, whether it was an attempt or a pass. This needle has hit ligamentous tissue or bone or some other solid structure seven times, that's my understanding, before Dr Stephens has her eighth attempt.
52․Central to the issue of Dr Stephens’ reliability, and indeed to the question of negligence, was the number of “attempts” made by Dr Abeygunasekara before Dr Stephens took over and continued with the procedure. The answer extracted above from Dr MacPherson puts some context around the significance of the difference in definition. We do not consider the failure to reconcile any conflict in definition to be significant in terms of determining the number of occasions when the spinal needle was pulled up and pushed in again before Dr Stephens attempted the procedure. We do consider it to be significant when assessing the plausibility of what Dr Abeygunasekara described he did when he said he “redirected”, and the reliability of the evidence of Dr Stephens about his actions in the context of her role in supervising him, to which we will come.
53․The entire purpose of Dr Stephens’ presence at the procedure was to supervise Dr Abeygunasekara as the junior, inexperienced practitioner. Dr Stephens recalled that the appellant’s Body Mass Index (BMI) was “a little bit higher”, which she observed could be a “marker for difficulty with spinals”, and for this reason she was already “scrubbed up” in case she was required to assist Dr Abeygunasekara. Further, Dr Stephens had not ever had a spinal needle break off in a patient’s back when performing the procedure during the course of her career, strengthening, in our view, an inference that it was an experience about which she would be likely to have detailed recall.
54․The evidence of Dr Stephens provided an explanation for inconsistency as between Dr Stephens’ evidence and Dr McDowell’s record about the level at which the broken spinal needle was removed by him. The inclusion of a typographical symbol, a ‘tilde’, in the records created by Dr Stephens and Dr McDowell when referencing L3/4 and L4/5 indicates the use of approximation when identifying the position of the spinal needle.
55․The unchallenged evidence was that, whether at L3/4 or at L4/5, Dr Stephens pointed Dr McDowell to the precise location of the broken spinal needle upon his arrival and that is the location from where he removed it. Any difference then as between the evidence of Drs Stephens and McDowell about the removal point, in our view, was not material. Similarly, the use of approximation is a reasonable explanation for the difference as between the evidence of Dr Abeygunasekara and Dr Stephens in relation to the site of the attempts and the site where the spinal needle broke when Dr Stephens attempted the procedure.
56․There is some support for approximation accounting for differences as between practitioners in the evidence of Dr Liyanagama, with which Dr MacPherson agreed, when he said:
I mean, in the first instance, it’s hard to know exactly what level these things happen. If I can explain, your Honour: we - to do a spinal, we feel where the hip bones are, we draw a line across, we think that’s the level between the third and the fourth vertebrae. Now, if you feel the bone at that point, is it the one above L3 or the one below L3? Without doing an x-ray at the time, we don’t know.

So, we - we use a - we use a best guess and we go, ‘Oh it’s about there. I think that’s L3 and L4,’ and then we call the one above 2/3 and the one down 4/5; essentially, arbitrarily, so that we’ve got a - an area to work from. So, that’s the first thing. So, we don’t know exactly which levels these things were done at, because I - as far as I understand, there was never an x-ray done to show where the fragment lodged.
57․This does not answer the inconsistency as between Dr Abeygunasekara and Dr Stephens in terms of whether he moved up to L4/5 or down to L3/4 when he recommenced the procedure at the second site. We do not consider this alone to be a basis upon which, given the other factors undermining the reliability of Dr Abeygunasekara’s evidence, to reject the evidence of Dr Stephens, or to make her evidence where it conflicted with Dr Abeygunasekara’s “glaringly improbable”.
58․There is a matter of significance, in our view, that supports the reliability of Dr Stephens’ evidence where it conflicted with Dr Abeygunasekara. Dr Abeygunasekara’s description of what he did when he redirected had him taking the spinal needle “completely out” of the appellant’s spine. Redirecting in this way, first at L3/4 on two or three or more occasions and again at L4/5 on two or three or more occasions, would have seen the junior doctor remove the spinal needle completely out of the appellant’s spine, only to reinsert it for each redirection on multiple occasions while Dr Stephens watched on. It is inconsistent with Dr Stephens’ role for her to have closely observed (“scrubbed up”, ready to assist with a patient identified as having a marker for spinal anaesthesia difficulty) the junior, inexperienced doctor make repeated attempts, involving multiple occasions of completely removing the spinal needle, and not move to intervene.
59․While Dr Stephens conceded that Dr Abeygunasekara could have been moving the spinal needle within the introducer needle without her observing as much, this was clearly predicated on the basis that the spinal needle remained inside the appellant’s back when the undetected movement occurred. The contention that Dr Abeygunasekara redirected in the way he described by pulling the spinal needle completely out, between five to nine occasions while under the direct supervision of Dr Stephens, is inconsistent with the entire purpose of her presence. Dr Stephens’ version that Dr Abeygunasekara did not attempt a redirection at L4/5 because “as a junior practitioner having tried two spaces, it was time to hand over to someone more experienced” is consistent with her role on the day, their relative experience and the identified marker for potential complication, being the BMI of the appellant.
60․We consider, based on the matters identified above, that there is a sufficient foundation upon which the evidence of Dr Stephens should be preferred where it conflicted with Dr Abeygunasekara.
61․We turn to the failure by the respondent to call Dr McDowell. While the appearance of the broken spinal needle upon its removal from the appellant’s back took on some significance in the primary proceedings, in the appeal hearing, the appellant characterised it as an issue only relevant to the credibility of Dr Stephens. In oral submissions in the appeal hearing, the appellant moved away from criticism of the failure to call Dr Sethna, instead focusing on the absence of evidence from Dr McDowell as to the appearance of the broken spinal needle when it was removed as a matter that influenced the credibility of Dr Stephens. Put another way, evidence from Dr McDowell as to the appearance of the broken spinal needle when he successfully removed it had potential to resolve any conflict as between the evidence of Dr Stephens and Mr Fuller, and therefore influence an assessment of Dr Stephens’ overall reliability.
62․The primary judge expressed his view in relation to the failure to call Dr McDowell in this way in Fuller at [52]-[53]:
52. […] Dr McDowell was not called. Counsel submitted that “squarely to the principle in Jones v Dunkel and that is that the unexplained failure of a party to call a witness or adduce evidence can … support an inference that the evidence would not have assisted”.
53. I am not prepared to draw such an inference. I accept that the failure to call Dr McDowell (as to this fact in issue) was an oversight by the defendant in the preparation for the trial and in the running of the trial. In the circumstances of this trial, I am unable to conclude that his evidence would not assist the defendant.
63․The primary judge turned his mind to the conflict in the evidence between Dr Stephens and Mr Fuller about the shape of the spinal needle upon removal and concluded that Dr Stephens was more reliable. His Honour based this finding on two factors. Firstly, the nature and extent of their opportunity to observe the spinal needle, and secondly, the influence of the stressful nature of the situation. The primary judge had regard to the environment of the operating theatre being familiar to Dr Stephens and her close observation of the procedure being performed by Dr McDowell, as well as the effect upon Mr Fuller of supporting his wife in circumstances where she was in a “very high state of anxiety, if not terror”.
64․Mr Fuller said in evidence that the broken part of the spinal needle “was like a banana, but you know, I think I may have said it looked like a fish hook. So it was just like a curved - - -”. Mr Fuller did not get to finish his answer as he was cut off by a question from the primary judge and did not return to finishing his description. He did go onto say:
So the easiest way I could explain it is if you get some soft gauge wire and push it at a wall, like at a flat surface, and it starts to bend up, and then you take the pressure off, that’s what it looked like.
65․Dr Stephens, when describing the broken portion of the spinal needle as “straight”, did say that looking at the spinal needle very closely, she could observe that the spinal needle was “just a little bit bent” at the end where it had broken off. She was not subject to any cross-examination on this issue. We do not consider this description necessarily at odds with Mr Fuller’s initial response that it looked like a “banana” or later when he said it resembled some soft bent wire, as extracted above at [18]. It is not entirely clear what the “fish hook” description was intended to convey or, indeed, whether Mr Fuller was intending to adopt that initial description at the time of giving his evidence as an accurate reflection of what he observed. Mr Fuller was not subject to any cross-examination on this issue.
66․The difference between the two descriptions was not stark. It was ultimately common ground that the needle was at least “a little bit bent”.
67․The appellant takes issue with the characterisation of the failure to call Dr McDowell as an “oversight”, submitting there was no evidence to support such a finding. During the course of closing submissions before the primary judge, the respondent at first instance identified that the basis upon which Dr McDowell was not called arose from how the appellant had pleaded her case, namely that the appearance of the broken spinal needle on its removal was not material to the claim. Counsel for the respondent submitted that it was only after evidence from Mr Fuller, and after the expert conclave indicated that they had not considered the significance of the broken spinal needle appearing bent after it was removed prior to giving evidence, that the appearance of the broken spinal needle emerged as a matter of significant factual contention. A review of the amended statement of claim reveals no pleading with respect to the appearance of the broken spinal needle upon its removal from the appellant’s back. Counsel for the appellant did not argue to the contrary before the primary judge, though did observe that Mr Fuller’s description of the broken spinal needle was known to the respondent by way of discovery.
68․During the course of making closing submissions, counsel for the respondent, after the primary judge indicated the appearance of the spinal needle could be an important matter, sought an adjournment to “locate Dr McDowell and bring him on as a witness of fact”. Counsel for the appellant objected to that course and after further submissions, which included a reference to the appellant not having challenged Dr Stephens’ description of the spinal needle after it was removed in cross-examination, counsel for the respondent withdrew the application to adjourn proceedings in order to locate Dr McDowell, submitting, “I’m content to rely on my submissions and leave the matter for your Honour’s determination in terms of, I’ve made my submissions about why we say Dr Stephens would be preferred over Mr Fuller and we are content to continue on that basis”. Neither the appellant nor the respondent sought on the appeal to make anything of this exchange during closing submissions and we say nothing more about that.
69․In the circumstances, we are not persuaded that the primary judge was in error when his Honour declined to draw an adverse inference based on the absence of Dr McDowell from the respondent’s case. In any event, as will become clear, this view, while favourable to the respondent, does not ultimately deprive the appellant of success on the appeal.
70․While we do not consider that the factual findings were attended to by error for the reasons contended by the appellant, in our view, the finding on negligence did not, among other things, take account of the concession made by Dr Stephens that Dr Abeygunasekara could have moved the spinal needle inside the introducer while performing the procedure without her observing as much. That unchallenged concession provides a basis to conclude that, in addition to the three occasions where Dr Abeygunasekara moved the spinal needle while attempting the procedure by pushing and pulling it through the introducer, there could have been other undetected movement of the spinal needle where it was subject to resistance. Dr MacPherson’s unchallenged evidence was that movement of the spinal needle during the course of the procedure could influence the integrity of the spinal needle structure.
71․The failure by the primary judge to take account of that concession in the factual findings, among other matters, resulted in an incomplete assessment of the circumstances in which the decision was made not to replace the spinal needle. Based on that incomplete assessment, the primary judge determined that the respondent was not negligent. In our view, the finding on negligence, for the reasons that follow, was erroneous.

(b) Should Dr Stephens have replaced the spinal needle before her own attempt to perform the spinal anaesthetic?

(c) Did the trial judge erroneously apply s 5O of the Civil Liability Act 2002 (NSW)?

72․These issues can be conveniently dealt with together, the outcome of which is that the appellant has established error in the primary judge’s consideration of negligence.
73․It is useful to set out ss 42-43 of the Civil Law (Wrongs) Act 2002 (ACT) (the ‘Wrongs Act’), to which the primary judge correctly referred:
42 Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43Precautions against risk—general principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) the probability that the harm would happen if precautions were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity creating the risk of harm.

74․The respondent conceded that the appellant was owed a duty of care. The primary judge determined that the risk of the spinal needle breaking during the course of the procedure, while “very rare”, was foreseeable and that the risk was not insignificant: Fuller at [59], [72]. The primary judge identified that the precaution to be taken to guard against the risk was for Dr Stephens to discard the spinal needle used by Dr Abeygunasekara and attempt the procedure with a fresh spinal needle. A fresh spinal needle was conveniently available and did not amount to a “material financial cost”: Fuller at [60]. The primary judge found that Dr Stephens ought to have been aware of the possibility that a spinal needle may break or deform when it is subject to resistance. The question for the primary judge, having made the findings of fact as his Honour did, was whether the duty owed to the appellant had been discharged by the exercise of reasonable care, as required by s 42 of the Wrongs Act. The primary judge determined that it had. In our view, error attended his Honour’s findings, and the appellant has established negligence.
75․By reference to the considerations contained in ss 42-44 of the Wrongs Act, the facts as his Honour found them, and the evidence adduced in the expert conclave, the primary judge determined that the plaintiff failed to establish that the duty owed to her in the circumstances of the case had been breached. In Fuller at [80]-[81], his Honour said:
80. In my view the plaintiff has failed to prove that the duty owed to her in the circumstances of this case has been breached. I have approached the matter by looking prospectively to what a reasonable anaesthetist in Dr Stephen’s position, (possessing and exercising the ordinary skill required in that profession) and who was in possession of all the information that Dr Stephens either had or ought to reasonably to have had, would have done at the time the harm arose.
81. In my evaluation, I have placed emphasis on the fact that the risk to be avoided was rare or very rare and, that notwithstanding my finding that Dr Stephens ought to have been aware of the possibility that a spinal needle may break or deform when subjected to resistance, that Dr Stephens acted in the manner accepted as competent professionals practice at the time. I have also taken into account those other matters referred to by me above and which are necessary to consider in the framework of sections 42 to 44 of the Civil Law (Wrongs) Act 2002 (ACT).
76․In our view, and as contended by the appellant, the primary judge fell into error when his Honour considered s 43(1)(c) and the factors at s 43(2) of the Wrongs Act in the circumstances of this matter, attaching significance to the expert evidence that did not account for the nuance of that evidence.
77․The expert evidence in the conclave from Dr MacPherson and Dr Liyanagama established that while incidents of spinal needles breaking were very rare, such an event was known to occur. Dr Abeygunasekara also gave evidence that he was aware at the time of administering the spinal anaesthetic to the appellant that spinal needles could break. Dr Stephens gave evidence that, as of 14 February 2020, she had “never” heard of a spinal needle breaking.
78․The primary judge found that Dr Stephens ought to have known that there was a possibility that the spinal needle could break and determined that the risk of the harm, being the spinal needle breaking during the administration of a spinal anaesthetic, was foreseeable and not insignificant. Accordingly, the primary judge was satisfied as to those matters contained in s 43(1)(a)-(b) of the Wrongs Act.
79․The primary judge rejected the appellant’s submission that “if standard anaesthetic guidelines are followed, the fracture of spinal needles should not occur”, and went on to find that there was no evidence that either Dr Abeygunasekara or Dr Stephens withdrew the spinal needle and introducer in anything other than a proper manner: Fuller at [69]. The primary judge relied on the rarity of the risk, and on the expert evidence, as having effectively endorsed the decision of Dr Stephens not to use a fresh spinal needle to find that the standard of care had not been breached. A review of the expert evidence demonstrates that the effect of it was not as straightforward as the primary judge reasoned. While the primary judge was entitled to take the expert evidence into account, his Honour was nonetheless required to perform his own assessment as to the reasonableness of the decision Dr Stephens made not to take the precaution of using a fresh spinal needle in the circumstances. In our view, the primary judge did not engage in his own assessment, deferring instead to a finding that the expert evidence established that Dr Stephens acted within the bounds of accepted competent professional practice.
80․The expert evidence as to when a fresh spinal needle should be used was imprecise.
81․The factual finding ultimately made by the primary judge, based on the evidence of Dr Stephens (one doctor making three attempts before another doctor taking over and using the same spinal needle), was, unhelpfully, not ever specifically suggested to the experts in the conclave for their comment (or opinion).
82․During the course of their evidence, the experts were invited to comment on standard practice. There was some exploration in the conclave of the role that the use of force or pressure might play in the decision to use a fresh spinal needle, with Dr MacPherson agreeing that it is hard to measure how much pressure any one attempt might place on the spinal needle. The following exchange occurred during the course of the conclave:
DR MACPHERSON: Your Honour, can I just clarify, are you asking me how many attempts with the one needle should be seen as a reasonable number?
HIS HONOUR: Yes. Well, firstly the one needle. I think we're going to focus on the one needle because that's what happened here.
DR MACPHERSON: Yes.
HIS HONOUR: And then of course there's even a further complication to this because obviously the amount of pressure you put on the needle against any given bone would vary in intensity so that a person who was delicately trying to thread this needle through the spine may have a lesser pressure than a person who was pushing it through with harder pressure. Now, what I have to come to and I have to make some decision about this is: what is the proper practice of that position? Now, it may not be just the sheer number of attempts, it may be a combination of the number and the pressure. Because I'm just thinking from a lay point of view with a bit of engineering and a bit of physics that you learn at high school.
…
HIS HONOUR: Is there a standard that I can work from that is the standard that would be used by highly skilled professionals doing an anaesthetic in accordance with good and proper practice on those questions?
DR MACPHERSON: Well, your Honour, I would say it's a difficult one to answer. To my understanding, there's nothing in the guidelines that specifically says you should only use the one needle for one attempt or two attempts or N attempts. I mean, they’re - I mean it sounds silly but let's say, you know, 10 attempts with the one needle would be beyond the pale. That would be, you know, excessive use but two or three attempts would not be; that's quite reasonable.

So somewhere in the middle is where a person would be thinking - especially if, you know, you have actually hit bone on a number of occasions and you pull - you know, you examine the needle and if there's no obvious cause of deformity then a lot of people would continue on for four or five attempts. Then there's - so there's a grey area in the middle. To do seven or eight or nine attempts with the one needle I don't think would be good practice but it's perfectly good practice to do one, two, three or four and then there's a grey area in the middle that's difficult to say.

HIS HONOUR: Let me ask your colleague.
Do you agree with that or do you have any - - -
DR LIYANAGAMA: I think that's a very elegant answer, your Honour, I can't improve on. I can't add anything to that.
HIS HONOUR: You can't improve on it?
DR LIYANAGAMA: No
HIS HONOUR: That's very good. Now, of course the subjective factor of exactly how much pressure that any given attempt is going to have behind it is another factor which you obviously ought to have some concern about but it's very hard to measure, as it were. Have I accurately described it, Dr MacPherson, that it's hard to know?
DR MACPHERSON: Yes.
HIS HONOUR: For instance, you know - - -
DR MACPHERSON: Yes, certainly.
HIS HONOUR: The logic of six attempts would be different if it was a gentle or soft means versus a pretty significant attempt to press through the - - -
DR MACPHERSON: Correct, correct.
83․The question of when to replace a needle after unsuccessful attempts was further addressed by the experts in the conclave in the following way:
MR RICHARDS: So if you - and I’ll start with you, Dr MacPherson, and tell me if I’ve got this wrong. If you say you wouldn’t do 10 attempts - - -
DR MACPHERSON: No.
MR RICHARDS: - - - without changing a needle, but in this particular case if you accept Dr Abeygunasekara’s evidence he could have done up to eight - so there could be a total of up to eight, three or four at each level, isn’t the complicating factor in this case is because Dr Stephens who took over took over after somebody else attempted six to eight attempts where Dr Stephens could not – and this is what I want to ask you and tell me if you agree or disagree – Dr Stephens could not have known what pressure Dr Abeygunasekara had applied in his six to eight attempts. Do you agree with that, Dr MacPherson?
DR MACPHERSON: I do, I agree completely.
MR RICHARDS: And do you agree with that?
DR LIYANAGAMA: I agree also.
MR RICHARDS: And in those circumstances, Dr MacPherson wouldn’t you expect a reasonable anaesthetist in those circumstances, and particularly with the added fact - I’ll just throw this in - that the trainee anaesthetist, this was his 10^th attempts? He had been admitted in January and 10 February, 14 February - - -
HIS HONOUR: Well, that’s not quite the evidence but he did say something like 10 times he had been doing this.
MR RICHARDS: In total, yes.
With that added fact, Dr MacPherson, wouldn’t you expect a reasonably competent anaesthetist, because she’s seen him hitting bone, not to take that risk and simply use a new needle?
DR MACPHERSON: Look, I have to say if it were me in that situation, sort of starting all over again with a new needle is the - because this information is new to me and slightly differs from other reports. So if the people had had six or seven or eight attempts and then I was called in as a consultant to try and rescue the situation, the first thing I would be doing is asking for a new needle.
MR RICHARDS: Do you agree with that, Dr Liyanagama?
DR LIYANAGAMA: In the event it was a large number, changing the needle, changing the position, all these things are useful things to do.
MR RICHARDS: Yes.
84․In relation to the number of attempts, his Honour stated in Fuller at [77]:
Although there was no precise consensus on this between the two doctors in the conclave, it was clear enough that as the number of attempts rose to about seven or more and the degree of pressure exerted was not known with precision, both doctors would regard changing the spinal needle at that time as being consistent with good practice of a specialist anaesthetist. This factual scenario was relevant to the narrative given by Dr Abeygunasekara.
85․There was some further evidence in the conclave seeking to clarify what was being referred to as “an attempt” in the context of the unsuccessful spinal anaesthetic procedure. Dr Liyanagama explained that he thought of a ‘redirection’ as “pulling the needles out and sticking them back in again. That was my interpretation of that”. Dr MacPherson went on to explain:
[Y]es, when we talk about a certain number of attempts at a certain number of levels, it does apply bringing the needle back close to the surface, doing a major redirection and then inserting it again, which is what Keith said and I agree with that.
86․The inquiry demanded by s 43 of the Wrongs Act (and similar corresponding provisions in interstate legislation) is a prospective one: see Austen v Tran [2023] ACTCA 44 (Austen) at [67]; Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at 71 [48] (per French CJ, Gummow, Hayne, Crennan and Bell JJ). In this instance, the prospective inquiry required an assessment of what a reasonable anaesthetist in Dr Stephens’ circumstances, in possession of all the information Dr Stephens ought reasonably to have had, would have done, if anything, by way of response to the foreseeable risk of harm to the appellant.
87․The primary judge correctly identified that Cornwallv Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233 (Cornwall) endorsed s 43 of the Wrongs Act as encapsulating the considerations identified in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 (Shirt).
88․The Court in Cornwall confirmed at 244 [28] that the obvious similarities between s 43 and Shirt considerations “demonstrates the continuing relevance of pre-Wrongs Act principles and authority to the determination of liability in claims for damages in negligence to which the Wrongs Act applies”. Determination of a breach of a duty of care by failing to take precautions against a foreseeable risk of harm requires consideration of multiple matters and attribution of weight to each of those matters. This Court is obliged to determine for itself, in conducting a “real review”, the weight to be given to particular matters: Cornwall at 246 [35].
89․The reasons of the primary judge do not reflect a considered synthesis of all the relevant considerations such that the strands of evidence were weaved together when considering and assessing for himself the question of whether negligence had been established. Rather, the primary judge treated the expert evidence as determinative of accepted competent professional practice, and additionally, determinative of the question as to whether the plaintiff had established negligence.
90․An assessment of what constitutes reasonable care can include a consideration of evidence in relation to standards accepted to be competent medical practice, but is ultimately a question for the judge. While the standard of care is that of the ordinary skilled person exercising the special skill in question, “that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade”: Rogers v Whitaker [1992] HCA 58; 175 CLR 479 (Rogers) at 483. While we do not consider that the primary judge applied s 5O of the Civil Liability Act as the appellant asserted, in that it is apparent from the reasons that the primary judge identified ss 42-44 of the Wrongs Act as the applicable provisions, we do consider that the primary judge approached the expert evidence as determinative of the assessment that his Honour was required to perform for himself.
91․It may be accepted that, in the field of treatment as opposed to a case of failure to warn, “the appropriate standard of care is a question in the resolution of which responsible professional opinion will have influential, often a decisive, role to play”: Rogers at 489. But where, as here, the case involves the weighing of risks and benefits, the trial judge must undertake that evaluation. In such a case, it is not enough to rely on expert opinion unless it is clear that the experts have undertaken that process: cf Queensland v Masson [2020] HCA 28; 94 ALJR 785 at 598 [133].
92․The primary judge was entitled to consider competent professional practice as part of his overall consideration of what reasonable care required. In our view though, the approach adopted, reflected in the reasons of the primary judge, saw that factor applied in a general manner devoid of analysis as to the nuance of the opinions expressed therein as they applied to the facts as his Honour found them. Specifically, the primary judge did not properly consider s 43(2)(b)-(c) of the Wrongs Act in his Honour’s analysis of whether Dr Stephens should have replaced the spinal needle prior to her attempt at the procedure.
93․Firstly, in our view, the primary judge did not determine, as required by s 43(2)(b) of the Wrongs Act, the likely seriousness of the harm: Fuller at [78]-[79]. Possible “consequences” were canvassed by summarising some of the evidence of Dr MacPherson before the primary judge observed that “the expression ‘likely seriousness’ invites a comparative analysis of likely harm”: Fuller at [79].
94․The primary judge did not go on to express his own view as to the likely seriousness of the harm. This is a case where the rarity of the risk did not correlate to the likely seriousness of the harm being low. Indeed, on the contrary, the likely seriousness of harm should a spinal needle break off in a patient’s spine is significant. That swift intervention might occur if available and reduce the seriousness of that harm does not undermine that proposition. The primary judge assessed the likely seriousness of harm through the prism of swift removal of the broken portion of the spinal needle because “fortunately, in most cases”, as in the appellant’s case, the broken spinal needle is noticed “at once”. A proper assessment required regard to be had to the range of possible outcomes should a spinal needle break off in a patient’s spine, which included grave injury causing significant disability with lifelong effect. While the primary judge canvassed some of those possibilities, his Honour did not definitively determine his view as to this factor.
95․Secondly, though the reasons in Fuller record at [60] that “it was common ground that the use of a fresh spinal needle would not amount to a material financial cost and that fresh spinal needles were conveniently available”, the primary judge did not reference that fact as part of the analysis his Honour engaged in when determining whether there was a breach of the duty of care by the failure of Dr Stephens to replace the spinal needle when she took over the procedure.
96․The ease with which the precaution could have been taken in circumstances where the risk was not insignificant and the likely seriousness of the harm was significant, was not encompassed by the analysis the primary judge engaged in for the purposes of assessing the circumstances, including the factor at s 43(2)(c) of the Wrongs Act, as his Honour was obliged to do.
97․Further to this factor is a matter not considered as part of the primary judge’s assessment, and that is the circumstances of the administration of the procedure. The evidence established that the spinal anaesthetic was being administered to the appellant as part of a planned caesarean section on 14 February 2020. This was not a procedure attended to by any urgency, such as might occur for an unplanned, emergency caesarean section. There was no evidence upon which it could be suggested that Dr Stephens was under any pressure or time constraints within which to perform the procedure. There was opportunity for Dr Stephens to easily take the convenient precaution of a fresh spinal needle in order to avoid the “not insignificant” risk. This factor did not feature at all in the primary judge’s consideration of the burden of taking precautions to avoid the risk. In all of the circumstances established on the evidence, the ‘burden’ of taking the precaution was de minimis.
98․We do not consider that the primary judge expressly stating at [81], “I have also taken into account those other matters referred to by me above and which are necessary to consider in the framework of ss 42-44 of the Civil Law (Wrongs) Act 2002 (ACT)”, reveals a proper consideration of s 43(2)(b)-(c) of the Wrongs Act.
99․Thirdly, the primary judge applied a broad-brush approach when considering the effect of the expert evidence on the facts as his Honour found them. The expert evidence was nuanced and considered. Both Dr MacPherson and Dr Liyanagama were careful to express some of the difficulties that made unequivocal opinion about the use of a fresh spinal needle problematic. While there was consensus that once an anaesthetist reached the use of the same spinal needle for the seventh occasion or more, a fresh needle was the appropriate action to take, there nonetheless remained a “grey area” when the entirety of the expert evidence was considered. Dr MacPherson expressed this view, with which Dr Liyanagama agreed:
DR MACPHERSON: […] I mean, they’re - I mean it sounds silly but let's say, you know, 10 attempts with the one needle would be beyond the pale. That would be, you know, excessive use but two or three attempts would not be; that's quite reasonable.
So somewhere in the middle is where a person would be thinking - especially if, you know, you have actually hit bone on a number of occasions and you pull - you know, you examine the needle and if there's no obvious cause of deformity then a lot of people would continue on for four or five attempts. Then there's - so there's a grey area in the middle. To do seven or eight or nine attempts with the one needle I don't think would be good practice but it's perfectly good practice to do one, two, three or four and then there's a grey area in the middle that's difficult to say.
100․This opinion was expressed in the context of one practitioner using the same spinal needle for “two, three or four” attempts. The primary judge extracted this portion of the evidence and used it as a basis for his Honour’s finding that once a practitioner reached seven attempts with the one spinal needle, in circumstances where the degree of pressure was unknown, “good practice” would see the use of a fresh spinal needle. The primary judge considered this scenario was relevant to the “narrative given by Dr Abeygunasekara”. The primary judge had rejected this narrative. The primary judge did not go on to apply the expert evidence to the narrative, that is, the evidence of Dr Stephens that he accepted, whereby her attempt was the fourth use of the same spinal needle, in circumstances where:
(a)Dr Stephens knew Dr Abeygunasekara had struck bone on three occasions and that it was possible for other movement to have occurred without her detecting it;
(b)Dr Stephens did not know the force that Dr Abeygunasekara had applied; and
(c)the appellant’s BMI elevated the risk of striking bone or hard ligamentous material.

101․Early on in the conclave, the experts were asked to consider the situation based to some extent on the evidence of Dr Stephens, though not precisely the factual finding the primary judge made:
MS MCCARTHY: If we move on from that scenario, and accept Dr Stephens’ evidence which is that she was supervising Dr Abeygunasekara by standing 1 metre away from him and that she observed him to make what I’d describe as two passes. And within each of those two passes multiple – several redirections. And then she has – that Dr Abeygunasekara has experienced resistance. He’s then looked at her to indicate that he’s had resistance. He’s completely withdrawn the needle and the introducer and placed it down on the anaesthetic tray. And then she has picked up the needle and introducer. I’d like you to accept, so Dr Stephens’ evidence is that she then examined the needle and the introducer by withdrawing the needle from the introducer. And then has performed a pass herself. Can I ask you Dr MacPherson, in those circumstances do you consider that it’s acceptable practice for Dr Stephens to have used that needle to make the pass?
DR MACPHERSON: Okay, so that is a complicated question and because as Keith and I intimated in the last series of questions there’s going to be a grey area. For me personally, if I’d seen a trainee have seven or eight attempts or passes despite the fact that physically the needle might look AOK, for me personally, I would use a fresh needle and start again. However, others may not. You may be able to get another anaesthetist to say, ‘No, no if it looks okay, we can use it for another go’.
HIS HONOUR: Just translating that last bit. Is that not everyone would take the view you have Dr MacPherson on that issue. And that there would be other views on that issue? Is that a correct summary?
DR MACPHERSON: No, I agree. Yes, sir. Yes, your Honour.
HIS HONOUR: And I wonder if you could ask the other doctor about that too?
MS MCCARTHY: Yes.
HIS HONOUR: I don’t want to be seen to be interfering too much.
DR LIYANAGAMA: I think that would – I think it would be as – I think has been – it would be reasonable to change the needle or not change the needle depending upon your individual preference in that circumstance.
MS MCCARTHY: And if Dr MacPherson we reduced the number of attempts to two or three, as opposed to – sorry, if I may just have one second. Dr MacPherson, if from what you just said you were working on the assumption that there were seven or eight passes, if we reduce the number of attempts or redirections to two or three would that change your opinion?
DR MACPHERSON: Yes. I think that it's quite reasonable to use a - the same needle for two or three attempts, yes.
MS MCCARTHY: And Dr Liyanagama?
DR LIYANAGAMA: I agree.
102․Dr MacPherson went on to observe in response to a suggestion that Dr Stephens had observed Dr Abeygunasekara hitting bone or hard tissue:
DR MACPHERSON: […] I mean I can see the point you're making and, you know, if you feel that the trainee has had repeated attempts where they've obviously - you know, if they've hit bone they normally - they turn around to you and say, 'I've hit bone, so I'm just going to redirect,' you know. So you've got a good idea what they've done. So I mean I suppose it would be practicable if you think that the - that particular spinal needle had had a rough trot in its two or three passes that you might change it earlier.
103․Without it being specifically suggested to him, Dr MacPherson, by inference, encapsulated the factual finding that the primary judge ultimately made in his answer. That is, Dr Stephens was unequivocal that Dr Abeygunasekara had hit bone on three occasions before she intervened – precisely, we think, the kind of “rough trot” Dr MacPherson was describing. The primary judge did not refer to this evidence as part of his Honour’s consideration.
104․Further demonstrating some of the difficulty in identifying with precision the boundaries within which the procedure could be conducted with the same spinal needle over multiple attempts was the expert evidence contemplating the ‘trainee’ status of Dr Abeygunasekara:
MR RICHARDS: And just following on from the issue with the trainee, both of your evidence is about seven or eight times you - attempts you would change the needle. That's how I understand your evidence. If it was a trainee and you didn't know how much pressure was being applied in those attempts, wouldn’t it be a lesser number than seven or eight that you change the needle, Dr MacPherson?

DR MACPHERSON: It's a very difficult question to answer. I'm not sure. I'm not sure what I would answer to that. I can't automatically assume that - I mean sometimes they may miss simply because they've missed the target completely and they haven't hit anything at all. So I would have to say in all honesty that just because the person who'd had a previous attempt was a trainee, I wouldn’t necessarily choose a lower number of attempts before swapping needles.
MR RICHARDS: Thank you for your evidence.
And Dr Liyanagama, do you agree?
DR LIYANAGAMA: I would agree with Dr MacPherson, yes.
105․This evidence extracted above was as close as the expert conclave got to a consideration of the ‘narrative’ that the primary judge accepted on the basis of the evidence of Dr Stephens. The primary judge approached the expert evidence as having definitively settled the circumstances within which a fresh spinal needle ought to be used. That was not the effect of the expert evidence when considered in its entirety. The expert evidence established the existence of a “grey area” when less than seven attempts may have occurred. The boundaries of that grey area were not fixed, such that a number of factors were capable of influencing whether the use of a fresh spinal needle was a reasonable or expected step. The expert evidence revealed a number of considerations capable of influencing the decision about whether or not to use a fresh spinal needle, including the force used, the striking of bone or hard ligamentous material over multiple attempts, whether the multiple attempts are made by one doctor, whether soft, gentle force was used and, in this instance, the effect of the appellant’s BMI. The experts agreed that even without excessive force, a spinal needle could break upon impact with bone or resistance due to ligamentous material.
106․Respectfully, the primary judge approached the expert evidence as if it was entirely conclusive in relation to the number of attempts that could be ‘safely’ made before a fresh spinal needle would be required. Having accepted Dr Stephens’ evidence and determined that the risk was rare, the primary judge ‘applied’ the expert evidence as if it answered the question of whether Dr Stephens ought to have used a fresh spinal needle. Having determined that the risk was rare and that the decision not to use a fresh spinal needle came within the scope of “accepted competent professional practice”, the primary judge reasoned the appellant failed to establish negligence. This was an error. Undoubtedly, the expert evidence was influential. It did not relieve the primary judge of the obligation to assess all of the evidence, including the circumstances particular to the administration of the spinal anaesthetic to the appellant, and determine for himself whether there had been a breach of the duty. As was observed in Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at 439 [7], citing Rogers at 486-7:
In many cases, professional practice and opinion will be the primary, and in some cases it may be the only, basis upon which a court may reasonably act. But, in an action brought by a patient, the responsibility for deciding the content of the doctor's duty of care rests with the court, not with his or her professional colleagues.
107․Both expert doctors were unequivocal that the one precaution that could be taken to avoid the risk of the spinal needle breaking would be to “simply change the needle”. There was no evidence in the expert conclave that explained why Dr Stephens would not have simply taken this step in the circumstances in which she found herself.
108․The approach of the primary judge did not account for the nuance of the expert evidence as to the “grey area” in the particular circumstances of the case in light of the factual findings. This fed directly into the assessment made of the circumstances in which the decision not to take the precaution to replace the spinal needle was made. In our view, the primary judge approached the expert evidence on the basis that it provided a hard floor and ceiling within which the “grey area” existed. This was not, in our view, the effect of the evidence.
109․The appellant succeeds with respect to establishing error in the primary judge’s approach to negligence.

Breach of the standard of care: has the plaintiff established negligence?

110․There was no complaint made as to the finding that the risk of harm was foreseeable and not insignificant. In our view, both findings were correct on the evidence. There was no dispute that the appellant was owed a duty of care and that the standard of the duty was that of a reasonable anaesthetist in Dr Stephens’ position, in possession of all the information that Dr Stephens either had or ought reasonably to have had at the time of the incident out of which the harm arose.
111․The evidence established that the probability that the harm would happen, if a fresh spinal needle was not used, was low, it being a “rare” or “very rare” occurrence for a spinal needle to break off entirely. The respondent advanced an argument in the primary proceedings that characterised the risk as so remote that a reasonable person in Dr Stephens’ position was not required to take precaution to guard against it, citing Waugh v Kippen [1986] HCA 12; 160 CLR 156, where the High Court held at 168 [17] that “a very slight degree of risk falls short of establishing a likelihood of risk of injury sufficient to activate the rule”. The primary judge rejected that argument, correctly in our view. The rarity of the risk in this instance did not translate to there being a very slight degree of risk. Though rare, the risk was nonetheless more than “slight”.
112․The likely seriousness of the harm to which we have already referred was significant, the evidence demonstrating the capacity for harm to be severe and life altering. This is further made clear by the urgency of the response upon the spinal needle breaking, which included an immediate instruction given to her by Dr Stephens to “hold really still” to guard against any movement from the appellant causing the broken spinal needle to migrate while it was lodged in her back. There is clearly strong social utility to the proper administration of spinal anaesthetic for the purposes of a caesarean section.
113․A compelling feature of the circumstances of this case is the minor burden involved in taking the precaution of using a fresh spinal needle. As we have already identified, this was a planned caesarean section and the evidence did not reveal any need dictated by time or emergency for Dr Stephens to use the same spinal needle as Dr Abeygunasekara. As the primary judge observed, fresh spinal needles were readily and conveniently available at insignificant cost.
114․The effect of the expert evidence in our view was to identify a “grey area” within which multiple factors influence the decision to use a fresh spinal needle. It is necessary when assessing whether the standard of care owed to the appellant was breached by the decision not to use a fresh spinal needle to carefully consider the factors established on the evidence. This is an assessment conducted not only by reference to what the expert evidence disclosed about the significance of any one factor and about acceptable standards of practice, but also by reference to the factors operating around the administration of the procedure relevant to the decision to use a fresh spinal needle. Practice accepted to be competent professional practice is not determinative of the question of whether there has been a breach of the standard of care required. Indeed, practice accepted to be competent professional practice may nonetheless be assessed to fall below the standard of care owed.
115․In our view, when considered alongside the careful views expressed by the experts and the circumstances in which the procedure was administered, including the nature and extent of the use of the spinal needle by Dr Abeygunasekara by the time Dr Stephens took over, the attempt at the procedure by Dr Stephens firmly occupied a “grey area”. Put another way, the decision by Dr Stephens not to use a fresh spinal needle when administering her own attempt must be assessed not only by reference to the expert evidence of when use of a fresh spinal needle might be expected, but must also include careful consideration of all the factors that made up the circumstances in which the precaution against the risk was not taken. The task then is not to measure the event only against accepted competent professional practice, but to carefully consider those factors set out in s 43 of the Wrongs Act and determine whether negligence has been established.
116․The actions of the reasonable anaesthetist need to be considered for the purposes of
ss 42-43 of the Wrongs Act prospectively in the particular circumstances of the event. The circumstances of relevance to the taking of the precaution established by the evidence were these:
(a)Dr Abeygunasekara had very limited experience at administering spinal anaesthetic and had been in training as a Registrar Anaesthetist for a matter of weeks at the time of the event with the appellant;
(b)Spinal needles can break when used properly and routinely, even without excessive force, if they strike bone or hard ligamentous material, or are otherwise subject to resistance.
(c)The appellant’s obese BMI was a known marker for potential difficulty when performing the procedure, including that there was a greater chance of hitting bone or ligamentous material.
(d)Dr Stephens was certain that Dr Abeygunasekara had hit bone on at least three occasions and additionally that it was possible for the spinal needle to be moved inside the introducer during the course of the procedure without her observing the movement.
(e)Dr Stephens did not know how much force or pressure Dr Abeygunasekara was applying when attempting the procedure.
(f)A spinal needle is a small, fine and fragile needle. The spinal needle is so fragile that it requires an introducer so that it does not deform “just going through the skin” and is “prone to deformation even under routine use”. Some force or pressure is required to deform or break a spinal needle.
(g)Repeated uses of a spinal needle, in particular where it hits bone or ligamentous material, can weaken the spinal needle and increase the chance of breakage. Common causes of spinal needle rupture or breakage are (even without the use of excessive force):
(i)repeated use of the spinal needle for multiple attempts when the spinal needle comes into contact with hard tissue such as bone, thus weakening the spinal needle;
(ii)removal of the spinal needle against a stationary introducer;
(iii)withdrawing and redirecting the spinal needle with the introducer still in place;
(iv)inserting the spinal needle with the stylet removed, thus weakening the spinal needle; and
(v)a bent spinal needle being withdrawn through the introducer.

(h)Spinal needles are known to break during use, though occasions of such are rare to very rare.
(i)The likely seriousness of the harm was significant, arising from the possibility of the broken spinal needle lodging near a nerve, or near or within the intrathecal space, or of spinal needle migration occurring.
(j)Replacement spinal needles were readily and conveniently available at low cost. The circumstances of Dr Stephens taking over from Dr Abeygunasekara provided the opportunity to use a fresh spinal needle. The appellant was booked in for a routine, planned caesarean section. Accordingly, there was nothing urgent about the administration of the procedure. There was time for the precaution necessary to avoid the risk to be taken.
(k)Inspection of the spinal needle would reveal an obvious deformity but not weakness in the integrity of the spinal needle.

117․Taking into account the rarity of the harm occurring if precautions were not taken, the likely seriousness of the harm as we assessed it to be, the minor burden of taking the precaution to avoid the risk of harm, together with the social utility of properly administering spinal anaesthetic for the purpose of a caesarean section, in our view, a reasonable anaesthetist in the position of Dr Stephens would have taken the precaution of using a fresh spinal needle. The failure to easily guard against the risk of significant harm by taking the precaution of using a fresh spinal needle, in our view, was a breach of the standard of care owed to the appellant.
118․Accordingly, the appellant succeeds in relation to this aspect of the appeal.

The Notice of Contention

119․The Notice of Contention asserts:
1. The appellant did not establish on the balance of probabilities that any alleged breach of duty caused the Plaintiff’s alleged nerve/neurological injury.

(d) Did the failed administration of the spinal anaesthetic by Dr Stephens cause the appellant to suffer a neurological injury, namely radiculopathy?

120․In the primary proceedings, the respondent conceded liability if the plaintiff established negligence in relation to the psychological injury and the dissection injury, being the result of the surgery to remove the broken portion of the spinal needle. That position was maintained on the appeal. While the primary judge made “additional findings” that purported to deny a scope of liability that included neurological injury, being radiculopathy, the parties accepted that it was not entirely clear. The Notice of Contention was filed on that basis. The parties agreed in the hearing that this Court should determine whether the scope of liability included radiculopathy.
121․In her evidence, the appellant described experiencing pain in her low back, right leg, right foot and tingling in her right big toe. In Fuller at [86], the primary judge accepted the appellant’s evidence about her physical difficulties and that the “physical difficulties” as described were not present prior to the February 2020 spinal needle event:
The incident was traumatic and [the appellant] suffered physical and psychological injuries as a result of it. Included in these injuries is the additional operative procedure to her spine to extract the needle and its sequela. Her quality of life has been diminished and her plans to have a child by caesarean section, which were important to her, were frustrated. On the basis of the medical evidence, which I accept, it is likely that [the appellant] will make a good recovery. However, that is not assured and some amount for future medical and employment contingencies could be made on any assessment. [The appellant]’s past medical and employment related matters were proved.
122․Additionally, the primary judge accepted the diagnosis that the appellant was suffering from post-traumatic stress disorder was caused by the 14 February 2020 failed attempt at administering the spinal anaesthetic: Fuller at [94].
123․Though no direct finding was expressed on the scope of liability, by inference, the primary judge rejected the appellant’s claim for neurological injury, specifically radiculopathy. The respondent accepted that the primary judge, unusually, did not make any assessment of damages though seeks to preserve the finding, if one was made, with respect to nerve injury claimed by the appellant, in the event the appellant succeeds on appeal in relation to liability.
124․Evidence about the radiculopathy component of the appellant’s claim came primarily from Dr Patrick for the appellant and Dr Gorman for the respondent.
125․Dr Patrick determined that the appellant had suffered a nerve injury as a direct result of the unsuccessful administration of spinal anaesthetic. Dr Gorman did not share that opinion. Dr Patrick gave evidence in the primary proceedings, Dr Gorman did not.
126․Dr Patrick examined the appellant via telehealth consultation on 13 August 2021 during a COVID lockdown period. He prepared a report arising from that consultation and it was tendered in the proceedings. As part of the telehealth consultation, Dr Patrick had access to photographs of the appellant. Dr Patrick concluded:
It can be seen in the clinical photo prints (telehealth) that [the appellant’s] right lower extremity at the mid-calf level is significantyl [sic] thinner than the left (bearing in mind that her weight at the time of the telehealth consultation was 106kg – previously 90kg or so). Nevertheless, as well as the muscular wasting right lower extremity, she has real difficulty with attempting to elevate the right great toe, whereas standing erect she can elevate the left great toe without any problem at all. This indicates a likely L5 radiculopathy affecting right lower extremity. This is not inconsistent with the clinical findings of Dr Sherley.
I do believe that this right lower radiculopathy now is very consistent with the needle being inserted eventually at the lower level. [The appellant] is suffering ongoing problems which arise from a lower limb radiculopathy. Progress MRI will be indicated and does need to be reviewed by neurosurgical or orthopaedic spine surgeon.
127․When giving evidence during the proceedings, Dr Patrick agreed that an in-person examination of the appellant would have been preferable to his video-link assessment of the appellant. However, he maintained his view that the appellant was experiencing radiculopathy arising from the unsuccessful procedure. Dr Patrick did not agree that Dr Gorman’s report was likely to be more accurate because he had assessed the appellant in person. Dr Patrick asserted that the absence of dermatomal sensory change, as observed by Dr Gorman, did not exclude radiculopathy.
128․Dr Patrick was asked:
HIS HONOUR: If there was a dermatomal sensory change, that would indicate an injury to the spine?
DR PATRICK: Possibly, but not definitely. I’m not trying to be difficult but the dermatomal distributions vary somewhat and I believe that the way that [the appellant] could not elevate the great right toe more to me than what Dr Gorman describes here.
HIS HONOUR: Right, okay. Now just a couple of general propositions. The lower leg problems that you found can they only come from a damage to the nerve?
DR PATRICK: Not necessarily. If we look at [the appellant]’s right leg, below the knee, including the calf and going down into the foot it is clear that the right leg is thinner than the left. It’s true that we don’t really know for certain whether or not that pre-existed her situation. But on balance of probability if I see that and it really sticks out, you can notice it and you can measure it. It came to me that when she was unable to elevate the right great toe but she is able to easily elevate the left great toe and I’ve got the photographs here with me, this is without giving anything away I believe that that was a very, very strong sign that she has a radiculopathy in the lower distribution, L5 distribution.
129․Dr Patrick did not attribute significance to the absence of immediate parathesis in the appellant’s presentation at the time of the failed procedure, saying there is “often not immediate” parathesis where nerve damage occurs. This was an opinion that stood somewhat in contrast to the evidence of Dr Stephens that when contact is made with a nerve during the procedure, a patient will have an immediate reaction. Nonetheless, the opinion was not challenged.
130․Dr Patrick highlighted in particular that Dr Gorman did not ask the appellant to elevate the great toe on either foot and suggested that his assessment and opinion was limited by that fact. Further, Dr Patrick considered the wasting away of the right leg and the difficulty elevating the right toe (noting the same limitation was not evident in the left toe) to be more significant in terms of the presence of radiculopathy than the absence of dermatomal change. Dr Patrick also considered the appellant’s report of constant back pain since her release from hospital on 19 February 2020 and pins and needles in her right toe, under her foot and up her calf were also indicators consistent with the presence of radiculopathy.

131․Dr Gorman examined the appellant on the instructions of the respondent in person on 18 January 2022. In his report tendered in the primary proceedings, Dr Gorman found that the appellant:
[H]as ongoing symptoms in the right lumbar region and down the right leg. However, she does not have radiculopathy. The numbness in the great toe and the smaller calf circumference I do not believe indicate a radiculopathy in the absence of any dermatomal sensory change, no abnormality of motor power nor abnormality of reflexes. She does not have any dermatomal sensory loss, any loss of power nor any change in reflexes.
The psychological effects of the alleged negligence have been responsible for the focus on and perpetuation of her symptoms rather than any physical injury. I believe that her ongoing symptoms are relatively mild and are caused by – “somatic referral of pain to her buttocks and lower limbs from the surgical scarring with symptoms increased and perpetuated by her anxiety and depressed mood as well as her deconditioning, fear avoidance and hypervigilance to symptoms in the region”.
132․Dr Gorman identified that there was no pre-existing significance based on the observations made of the appellant in the immediate period after the spinal needle broke or while she was in recovery and an inpatient after her child was delivered. These observations included that the appellant did not experience pain or paraesthesia (recorded in the record of Dr Stephens made on 15 February 2020) and that the appellant was “ambulating and toileting” without any difficulty on 17 and 18 February 2020. Dr Gorman observed the emergence of bilateral symptoms with reference to a letter from physiotherapist Lara Weston, dated 17 March 2021, where such symptoms are described. Dr Gorman considered that the emergence of bilateral symptoms indicated “that it is even less likely that there was nerve damage – it would not be easily explainable to have bilateral symptoms from a single needle”.
133․Dr Gorman’s report concludes:
[The appellant] occasionally gets pins and needles and this can extend down to the great toe on the right via the calf. It can then radiate up to the right buttock. Discomfort is always on the right side.
134․Dr Gorman also recorded that he did not detect any weakness or dermatomal sensory change of the right lower extremity, though did go on to observe that “the only sensory abnormality in the lower limb was the sensation of pins and needles under the right great toe”. Dr Gorman further noted, “straight leg raising was only to 40 [degrees] on the right limited by pain over the right lumbar region. On the left leg straight leg raising was to 60 [degrees]”. He did not make any record in relation to the appellant’s ability to elevate either her great right or left toe.
135․Dr Gorman was unequivocal that there are no signs of radiculopathy and that the appellant’s prognosis is “excellent”, noting she is working full-time. Dr Gorman recorded that he considered the view expressed by Dr Patrick, suggesting that the appellant will have to retire early, to be an unusual one in the circumstances given her age, that she is working full-time, and that she has no definite neurological injury.
136․Dr Gorman was of the view that a progress MRI and consequential review by a neurosurgical or orthopaedic spine surgeon was unnecessary, noting the appellant “has already had an MRI which has not shown any related abnormality and there is no reason why there should be any progression”.
137․The explanation, according to Dr Gorman, for the pins and needles and limited straight leg raising because of pain over the right lumbar region experienced by the appellant, is somatic referral of pain from surgical scarring and exacerbation of those symptoms because of her psychological state, including anxiety and hypervigilance.
138․The primary judge concluded that the appellant had not established nerve injury on the basis that his Honour preferred the evidence of Dr Gorman, having formed the view that Dr Patrick was “an advocate for a cause”: Fuller at [92]. This view was expressed globally, as a general impression of Dr Patrick without specific reference to aspects of his evidence or his presentation that led the primary judge to form his view.
139․The respondent pointed to the evidence in support of Dr Gorman’s view, being the observations made by Dr Stephens as recorded in the hospital notes and in the evidence she gave in the proceedings, as consistent with the appellant not suffering any nerve interference or damage as a result of the unsuccessful administration of the spinal anaesthetic. Dr Stephens observed that the appellant “had no paraesthesia with any of the attempts”. There was no evidence from Dr Stephens about any reaction by the appellant upon the moment of the spinal needle breaking or observations made of the appellant between Dr Stephens’ realisation that the spinal needle had broken and the arrival of Dr McDowell to perform the retrieval surgery. Dr Abeygunasekara had no memory of any reaction or “feedback” from the appellant on the occasions he tried to perform the procedure.
140․The appellant, in her evidence, said that she had complained of back pain after the successful delivery of her baby. This is consistent with the hospital records, where they record that “[the appellant] had some concerns about her back hurting” and “mild ache in back” in the three days after the retrieval surgery was successfully performed.
141․Dr Patrick was not challenged when he expressed the view that parathesis would “often not” be immediately present at the time when nerve damage occurred. Upon a careful review of the evidence Dr Patrick gave in the proceedings, it is not immediately clear in what respect he was “advocating” for the appellant’s cause. He maintained the substance of his opinion, being that radiculopathy was present, and provided a basis for his disagreement with the opinion of Dr Gorman. Dr Patrick conceded his telehealth assessment was not ideal and was careful to identify the basis upon which he disagreed with the opinion of Dr Gorman. Significantly, while he conceded he did not specifically know the detail of the assessment conducted by Dr Gorman of the appellant’s physical capability, Dr Patrick identified the absence from Dr Gorman’s report of reference to the inability of the appellant to elevate her great right toe as a factor limiting the scope of Dr Gorman’s report. There being no specific examples cited by the primary judge as to why his Honour formed the view that he did of Dr Patrick, it is difficult to understand the basis for the adverse finding as to Dr Patrick’s investment in the appellant’s “cause”.
142․In addition, the primary judge did not grapple with the finer detail of the respective reports, nor the substance of the evidence given by Dr Patrick in the proceedings. Significantly, the primary judge, in ascribing significance to the fact that Dr Gorman physically examined the appellant and Dr Patrick had not, did not refer to the clinical photographs taken of the appellant by Dr Patrick, referred to both in Dr Patrick’s report and during the course of him giving evidence in the proceedings. Dr Patrick referred to the photos as compellingly demonstrating the inability of the appellant to elevate her great right toe, which he considered to be a “very, very strong sign of radiculopathy in the lower distribution of the L5 distribution”.
143․Two points should be noted. Firstly, the sensory abnormality under the appellant’s great right toe was detailed in Dr Gorman’s report and identified by Dr Patrick as consistent with radiculopathy. Secondly, the evidence from Dr Patrick about the potential for delayed presentation of radiculopathy was not challenged either when he gave evidence, or by the substance of the report from Dr Gorman. These were not factors that the primary judge grappled with in the additional findings that his Honour made despite his acceptance of the appellant’s “testimony as to her physical difficulties and the fact that those physical difficulties were not present prior to February 2020. The incident was traumatic and [the appellant] suffered physical and psychological injuries as a result of it”: Fuller at [86].
144․Medical records detailing some of the appellant’s engagement with health professionals in the time after the spinal needle event were in evidence. The records documented the appellant complaining of a “constant” ache in her low back and “pins and needles from the big toe to under the foot up the calf and then lateral thigh” in July 2021, “constant ache” in the low back with “radiating burning pain down her right leg” in August 2021, and tingling in her first and second toe of her right foot in October 2021.
145․In our view, the evidence established that the appellant was suffering radiculopathy as a result of the spinal needle event. The evidence from Dr Patrick as to the significance of the presentation of the appellant’s great right toe, as well as to the possibility of parathesis “often not” presenting immediately proximate to the nerve damage occurring, were factors directly relevant to the question of whether the scope of liability should include radiculopathy. Neither factor was directly addressed in the report of Dr Gorman.
146․As the primary judge did, we accept that the physical difficulties as described by the appellant in her evidence arose after the spinal needle event. There was no basis to reject the opinions expressed by Dr Patrick. We are satisfied that the appellant is suffering radiculopathy. In our view, the evidence does establish that the negligence we have found led to the appellant developing radiculopathy, and accordingly, the respondent’s liability should extend to that harm so caused.
147․The scope of liability includes radiculopathy.
148․The matter should be remitted for an assessment as to damages on the basis of the scope of liability that we have determined. That is, the appellant’s injuries arising from the negligence of the respondent include post-traumatic stress disorder, the dissection injury, and radiculopathy.

Orders

149․For the above reasons, the Court makes the following orders:
(1)The appeal is allowed.
(2)Set aside the orders made on 22 December 2022.
(3)In lieu thereof, order that judgment be entered for the appellant.
(4)Remit the proceedings to the Supreme Court for an assessment of damages on the basis that the scope of liability includes radiculopathy.

I certify that the preceding one-hundred and forty-nine [149] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 5 July 2024