Jeffrey v Witherow - [2007] WADC 20

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JEFFREY -v- WITHEROW & ANOR [2007] WADC 20

CORAM: COMMISSIONER ARCHER

HEARD: 11 - 15 DECEMBER 2006

DELIVERED : 9 MARCH 2007

FILE NO/S: CIV 2750 of 2002

BETWEEN: JENNIFER ROSE JEFFREY
Plaintiff
AND
GREG WITHEROW
First Defendant
GEORGE CARTER
Second Defendant

Catchwords:

Medical negligence - Failure to warn - Failure to correct "hallux valgus"

Legislation:

Nil

Result:

Judgment for the defendants

Representation:

Counsel:

Plaintiff:     Mr K J Bradford
First Defendant              :     Mr D R Clyne
Second Defendant         :     Mr P D Quinlan

Solicitors:

Plaintiff:     Bradford & Co
First Defendant              :     Jarman McKenna
Second Defendant         :     Clayton Utz

Case(s) referred to in judgment(s):

Chappel v Hart (1998) 195 CLR 232
CSR Ltd v Eddy (2005) 80 ALJR 59
Elbourne v Gibbs [2006] NSWCA 127
Johnson v Biggs [2000] NSWCA 338
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Newman v Nugent (1992) 12 WAR 119
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434

Case(s) also cited:

Bennett v Minister for Community Welfare (1992) 176 CLR 408
Betts v Whittingslowe (1945) 71 CLR 637
Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121
Breen v Williams (1996) 186 CLR 71
The Board of Management of Royal Perth Hospital v Frost, unreported; FCt SCt of WA; Library No 970069; 26 February 1997
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Brown v Churchill (2006) 31 WAR 246
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
EM Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434
F v R (1983) 33 SASR 189
Gover v South Australia & Perriam (1985) 39 SASR 543
H v The Royal Alexandra Hospital for Children (1990) Aust Torts Rep 81000
Hoffman v Commonwealth [2000] WASC 9
Hopp v Lepp (1980) 112 DLR (3d) 67
Hoyts Pty Ltd v Burns (2003) 201 ALR 470
Karpati v Spira, unreported; NSWSC; No 15853/921; 6 June 1995
Kavanagh v Akhtar (1998) 45 NSWLR 588
Lyskowicz v Colin Earnshaw Homes Pty Ltd & Anor [2002] WASCA 205
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Naxakis v Western General Hospital (1999) 197 CLR 269
Percival v Rosenberg [1999] WASCA 31
Purkess v Crittenden (1965) 114 CLR 164
R v Bateman (1925) 94 LJKB 791
Rawlings v Lindsey (1982) 20 CCLT 301
Reible v Hughes (1980) 114 DLR (3d) 1
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Rufo v Hosking (2004) 61 NSWLR 678
Seney v Crooks (1996) 30 CCLT (2d) 66
Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871
Shorey v PT Limited (2003) 197 ALR 410
Tai v Saxon, unreported; FCt SCt of WA; Library No 960113; 8 February 1996
Videto v Kennedy (1981) 125 DLR (3d) 127
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson [1990] WAR 248
Wilsher v Essex Area Health Authority [1988] AC 1074

COMMISSIONER ARCHER:

Background:

The plaintiff claimed damages from both defendants in respect of medical treatment in relation to her feet. By consent, her claim against the second defendant was dismissed before the trial began.
The plaintiff is a 58 year old woman who was diagnosed with rheumatoid arthritis when she was around 30 years of age. The arthritis began in her wrists but progressed to affect all of her joints.
Initially, the plaintiff sought natural treatment, but then went to a rheumatologist, Dr Black. She later transferred to another rheumatologist, Dr Zilko, who she has been seeing for about ten years.
The arthritis was primarily treated with medication. In addition, she had surgery on her left knee and right wrist in an attempt to relieve some of the symptoms. She also had some chiropractic treatment, for what appears to be unrelated back problems.
On 11 October 1996, Dr Zilko referred the plaintiff to the first defendant to see if anything could be done about the pain in her feet. The plaintiff described a burning pain in the cushiony part of the balls of her feet. She said she had had it for "quite a while" by that time. She said that the pain in her feet was really bad and was a different type of pain to the pain that she was experiencing in her joints, which she described as an aching pain. She had no other pain in her feet at that time. She conceded that there was a significant angle in her big toes, but said she did not notice any deformity.
The first defendant performed two operations on the plaintiff's feet. The surgery aimed to fuse the first metatarsophalangeal joint of each great toe and to resect the metatarsal heads of her lesser toes.
Fusion aims to reduce pain in the joint and reduce the risk that the great toe will put pressure on the lesser toes, causing them to drift.
Metatarsal heads are removed in order to reduce the pain, spread the load of the foot, and allow the foot to be more easily shod. Removing the swollen inflamed lining of the joints removes the pressure caused by the edges of the bones pressing on each other. It also creates floppiness in the joints. Rheumatoid arthritis can cause the toes to claw, which makes them rub against footwear. If the joints are floppy, the toes won't rub, and the load of the foot will be spread over the sole.
This sort of surgery is done when the joints are defunctioned, damaged and dislocated. The experts refer to it as "salvage surgery".
The plaintiff contends that those operations did not fix her feet and indeed made them worse. She further contends that the first defendant gave inadequate warnings to her, and inadequate post‑operative care.
She subsequently received further surgery and treatment from other doctors, culminating in the removal of the fourth toe on each foot.

Factual disputes

There are a number of factual disputes in this case.
Most importantly, there is a dispute as to what Dr Witherow told the plaintiff prior to the operations.
The next area of dispute is what advice the plaintiff was given in relation to orthopaedic inserts and the extent to which she followed that advice.
Aligned with that issue is the advice the plaintiff received in relation to post‑operative care and the extent to which she followed that advice.
Of particular importance is the issue of the cause of the plaintiff's present pain in her feet – namely whether it is pain that was caused by either or both of the first and second operation or whether it is simply a result of the natural progression of her rheumatoid arthritis.

The plaintiff's evidence

Prior to her marriage the plaintiff had worked as a cleaner and as a nursing assistant. After her children moved out of home, she was considering going back to part‑time work in a nursing home in order to have some company. She said that, after her first surgery with Dr Witherow, she tried to return to work and worked one shift as a nursing assistant. She completed the shift, but it was too painful and she did not return.

Rheumatoid Arthritis

The plaintiff said that over the last 10 years or so there had not been any change in her rheumatoid arthritis condition. She said it was controlled with medication, although the pain was always there.
The plaintiff agreed she had had two operations on her wrist by Mr Hales. She said the first was about 15 years ago and agreed she had problems with that. She later had further surgery to fuse her wrist, and she said it was alright now.
The plaintiff agreed she had had surgery to both knees. The surgery to the right knee was related to her rheumatoid arthritis.
She also said she had neck and back problems as part of her rheumatoid arthritis. She said her arthritis was in all of her joints. She agreed that it made her do things more slowly. She agreed it meant she could not lift heavy things, although she later said she could not lift heavy things due to the pain in her feet.
The plaintiff said she had always followed medical advice to the letter.

Dr Witherow's surgeries

She said by the time she saw Dr Witherow, she had tried everything to relieve the pain in her feet. She said "I tried the shoes; I tried the insoles; I tried everything". She said that nothing had helped her.
She said the burning pain was so bad, before the surgeries, that she could not stand in a checkout for half an hour.
The plaintiff said that Dr Witherow told her he was going to straighten the big toe and put a pin in it and open up her foot from the top and scrape down the toes. She said he told her that would relieve the pain under her foot. She said Dr Witherow said "he was going to fix the pain, remove the pain underneath my feet and I will have no more pain. I was very happy". She understood she would have to stay in hospital for three to four days and would be in plaster after that. Dr Witherow told her that the plasters would later be taken off and she would be x‑rayed.
She was adamant that Dr Witherow had not told her there was a risk that the surgery would be unsuccessful or a risk that she would be left with increased pain. She said he never suggested that she have one foot done at a time.
She said the initial consultation was about 15 to 20 minutes. When it was over, she arranged the surgery with his secretary. The next time she saw Dr Witherow was in the operating theatre.
After the operation, her feet were originally bandaged up with plaster slabs under each foot. She returned to see Dr Witherow about a week later and he changed the slabs to back slabs. Her feet were swollen, and she had a new pain in her big toes and in the top of her feet. She described the pain in her big toes as a constant stabbing pain. And she still had the pre‑operation burning pain. She said the angle of the big toe was worse. She said she was not able to wear footwear.
The first operation did not succeed in fusing the great toes.
About six months after the first operation she saw Dr Witherow again. He did not make any recommendations about the pain. The plaintiff agreed that pressing on the place where the fusion had been attempted did not increase the pain. She agreed that she had the pain not only when she was walking but also when she was lying down. She said it was there all the time. She said at that time she was not able to do much at home and could only drive short distances.
She eventually went back to Dr Witherow, who gave her two options. She asked him to do whatever he thought was best. Again, she said Dr Witherow did not warn her of any risks of the surgery or that she might be worse off. She said he did not discuss with her the possibility of operating on one foot at a time.
After the second operation, she had plaster on her feet. The plaster broke up because she was walking while the plaster was on. Dr Witherow then put fibreglass plasters on. She said that those plasters pushed into her shin bones and she could not stand up. She said she had to have help to sit down and had to "fall down on the toilet". She said she had to go to a wedding in a wheelchair. She said she was in excruciating pain. She said that, a week after the fibreglass plasters had been put on, she rang Dr Witherow's office, but was told he was on holidays and they could not do anything. She rang her family doctor and subsequently her husband cut the fibreglass plasters off. She denied telling Dr Witherow that she had only had the fibreglass plasters on for a day. She said she had them on for over a week.
She agreed that Dr Witherow had told her to see a podiatrist to have splints made because the fusions were not solid. She said she had them made and wore them for "as long as I could". She said it could have been for a few weeks. She agreed she did not have them on by Christmas and said it was because they were not working.
After the second operation, the plaintiff said her pain was worse. She said the shape in her big toe had not changed at all and her little toes had all fallen to the side.
She agreed she was supposed to return to Dr Witherow about four to six weeks later, but she did not. She said by then she had lost all confidence in him.
The plaintiff later had an operation performed by a Dr Carter, who was the second defendant. She said this operation did nothing, other than give her short term pain relief in her small toes.
At around this time, the plaintiff said that her small toes pushed her fourth toe up on top of her foot so that it sat above the level of her other toes. That caused very painful pressure when she was wearing shoes. Dr Carter refused to amputate the fourth toe, saying it was a cosmetic operation.
Subsequently, a Mr Anderson amputated the fourth toes. The plaintiff said that eliminated the pressure on her foot and other toes, but she still had the pain on the top of her toes and in her big toe (and the burning pain).

Knowledge of risk – no guarantees

The plaintiff admitted that her first wrist surgery had not been successful. However, she denied that she knew there was always a risk that the foot surgery might not succeed. She said that was because Dr Witherow had told her she was going to be pain free. She did not think there was any risk that that would not happen.
When she was asked why she had had the second wrist surgery with Mr Hales, she replied "he said there is a new procedure out where they can put a cap on the end of the joint to stop it scraping, but he says there is no guarantee, so I didn't do it". That was not a responsive answer, and even her counsel conceded its meaning was unclear. She was then asked whether she had had the other surgery because she still had ongoing problems in her wrist. She agreed that was so.
She said after her knee surgery she did not have any pain in that knee, although did admit she might get a bit of swelling there. Some outpatient notes were put to her of 16 March 1998 which read "Arthritis; still problems in right shoulder, right knee, feet". She said "yes, that's part of the rheumatoid. It's always there". She agreed the surgery had not cured her, saying rheumatoid arthritis does not go away and it is there forever. She denied complaining of pain to Dr Zilko in her knee and said it was simply that when he did an examination and put pressure on her knee it hurt.
She said she did not complain of ongoing pain in her joints. It was put to her that on 25 March 1997 a complaint was recorded as "still getting pain: neck, shoulders, back, doesn't feel the Cyclosporine is working". She said that was "a long time – a few years ago".
Dr Witherow told the plaintiff before the first surgery that she would need to return after six weeks to have the plasters off and to be x-rayed. I do not accept her evidence that, despite that, she had no doubt that the surgery would be a complete success. In my view, that answer is simply not credible in the circumstances.
The following exchange occurred:
I think you also agree that he explained you would need to be in plaster for a while?---Plaster slabs.
Yes?---Yes.
And that after about six weeks they would come off?---Yes.
At that stage you would be re x-rayed?---Yes.
It's the case, isn't it, that you then understood that you would be re x-rayed to see if the fusion had taken or not?
---Yes.
Obviously if it hadn't taken you would have an ongoing problem, wouldn't you?---Yes.
So you knew before you went into surgery that there was the potential you would have ongoing problems in your feet?
---No, no, I didn't.
Well, you have been re x-rayed. If it hadn't taken you were still going to be in trouble, weren't you?---Yes.
Well, that was a potential problem that was out there?
---Yes, well, he was going - he said he was going to do something else to help it.
What was that?---The second operation.
Another operation?---Yes.
So you knew before the first operation there was the potential for a second operation?---Yes, well, because he guaranteed that - and how he was going to fix it was to do what he was going to do to the toe.
So you knew that the first operation might not work?---No, I didn't; no.
I thought that's what you just said, that there might be a second operation necessary?---No. I said what he was going to say - when I had the second operation, that's what he said, but the first operation, no, definitely not.
You knew, I thought you just said - and let's just go through it again ‑ ‑ ‑?---Well, you misunderstood me.
I must have - that after six weeks you would be re x-rayed?
---Yes.
The reason for that was to see whether or not the fusion had taken?---That's when we went back. After the sixth week he told me he would do an x‑ray to see if it had healed.
Yes, to see if the fusion had taken. You knew that, didn't you?---Not before, I didn't; not until I went back the six weeks ‑ ‑ ‑
I was asking you about what he told you prior to surgery?
---He didn't say that.
You knew you were going to have to wear plaster slab for a while?---He told me what he was going to do to the surgery.
Yes, and then when he took it off, you would be x‑rayed?
---Yes.
And the purpose of that ‑ ‑ ‑?---Come back in six weeks' time and we will do the x‑ray.
Yes, and the x‑ray was being done to see whether the fusion had worked?---Yes.
…
I want you to simply focus on the conference, the first meeting you had with Mr Witherow before you had any surgery, the very first time when surgery was discussed. Correct?---Right.
At that time he told you the operation would take a length of time; you would be in general anaesthetic; you would be in hospital three or four days; you would be in plaster afterwards. Correct?---He told me - no, no, not the plaster - I had the plaster slabs put on through surgery, but he said I'd come back in six weeks' time.
No, we're talking ‑ ‑ ‑?---Not to see if the fusion was there.
He said you would come back in six weeks' time ‑ ‑ ‑?---To take the slabs off.
- - - and be x‑rayed?---Yes.
Why were you being x‑rayed?---To see if the operation would work.
That's right. So there was a chance that it had not worked?
---No, no. Well, because after the operation you have an x‑ray.
Because? To see if it's worked?---Yes, but he didn't tell me it wasn't going to work ‑ ‑ ‑
Well, they have to check to see if it has. Surely that's implicit in why you are having the x‑ray?---No, I'm just going on by what he told me before I had the surgery, how ‑ what procedure he was going to do, and that procedure was to take away all the pain and then I would be able to go back to comfortable shoes.
Did he have you back six weeks after surgery to see if the procedure had worked? Correct?---Not in that meeting. When he went back he said, "We will have an x‑ray to see that it worked."
I have asked you three times now to simply tell me what was said on the very first meeting?---I told you.
And you agreed with me when I was asking you those questions that he said he would have you back in six weeks to take off the plaster and to have you x‑rayed?---No.
That's what he told you, wasn't it ‑ ‑ ‑?---No.
‑ ‑ ‑ in that first meeting?---No.
What were you coming back in six weeks for?---For a visit.
For what reason?---To take the stitches out.
Yes, and to take the plaster off?---And to have it x‑rayed.
And to have it x‑rayed?---Yes, they had the x‑ray. Yes, only natural; yes.
That's what he told you on the first ‑ ‑ ‑?---I'm telling you what he told me what was going to happen.
That's what he told you on the first occasion. I don't want to know what he said on any other occasion; I want you to tell me what was said on the first occasion. On the first occasion he said he would have you back in six weeks to take the plaster off. Correct?---Yes.
And to have you x‑rayed?---Yes, but nothing about seeing if anything was aligned or in line or whatever, because he told me the procedure works.
Why did you think ‑ ‑ ‑?---That's why I went ahead with it.
Why did you think you were going to be x‑rayed?---Well, I just thought it was a natural thing you have done.
Why?---I don't know why. It's just that that's what doctors do.
Check to see if it's working. It's the only reasonable explanation, isn't it?---Well, that's what - that's what he does.
To check to see if his work ‑ ‑ ‑?---But he did not tell me. He told me ‑ ‑ ‑
Are you telling me ‑ ‑ ‑?---He told me it was going to work if I had the surgery.
But you were having an x‑ray to see if it had worked. Correct?---Yes".

In an effort to remedy this, counsel for the plaintiff cross‑examined Dr Witherow about the paragraph in the defence that said he told the plaintiff that they would take an x-ray after six weeks and "depending on how the fusion was progressing" she may need to be in plaster for greater than six weeks. Dr Witherow confirmed that was what he would have said. However, whatever were the exact words used, I find that the plaintiff knew, before the first operation, that she would need to be x‑rayed, and that the purpose of the x‑ray was to see if the attempt to fuse the great toes had worked.

Assistance from others

The plaintiff said that her daughter helps her with household activities, for about day a week. Her husband also assists her on an "as required" basis. She said that prior to "the accident" (by which she presumably meant the surgeries), she did not get any help with the housework from her husband or daughter. She said she just put up with the burning underneath her feet but that she now had additional pains.
She said that prior to seeing Dr Witherow she did not have any restrictions on her driving abilities. Now she can not drive long distances, and her husband has to drive.
The plaintiff was adamant that she needed much more help with housework after Dr Witherow's surgeries than before. She said that prior to the operations she only required help with heavy work. She denied that her right wrist pain stopped her from doing household chores. She said that, if a job put pressure on her wrist, she would use her left hand. She said she could still iron with her right hand although conceded not very much. She said she could peel vegetables, vacuum and make beds.
The plaintiff said her wrist did not restrict her from household activities at the moment. She agreed that she needed help with heavy lifting, but said that was because of the pain in her feet. However, she agreed that when she lifted something heavy she felt pain in all of her joints.
The plaintiff admitted that, before seeing Dr Witherow, she was getting continuing pain in her feet that was not being helped by orthotics. She admitted it was severely impacting on her lifestyle and that at that time she was on a near optimal dose of her medication.

Appearance of feet

The plaintiff was asked -
"Was that an important consideration for you, being able to wear normal shoes rather than orthopaedic, orthotic type shoes?--- Well I'm only a young person, yes: I wanted to wear nice shoes".
It appears that the plaintiff wanted her fourth toes amputated because she could not comfortably wear shoes or sandals. She agreed that the toes themselves did not hurt. After Dr Carter had refused to amputate her toes, she wrote him a letter, saying her feet looked awful. She was asked about the letter in cross‑examination. With some emotion, she said:
"When I wrote that letter I had just got back from seeing him and I cried all the way home and I just sat down on my – I can still see myself sitting out on my veranda and I put my feet up on the chair and I looked at my feet--- and I wrote that letter then."
It is apparent that the appearance of her feet understandably causes the plaintiff significant distress.

Orthoses

The plaintiff was cross‑examined about her use of orthoses. The plaintiff's evidence in relation to this topic was extremely difficult to follow. That may have been partly due to the fact that she seemed unable or unwilling to distinguish between prescribed made‑to‑measure orthoses and insoles purchased "off‑the‑shelf" at chemists. She also appeared not to distinguish between custom‑made podiatric shoes and wearing insoles in sneakers. One example illustrates this:
"Were you ever prescribed special shoes because you had rheumatoid arthritis?--- Yes.
What sort of shoes?--- You had to have enclosed shoes---I had all the support shoes.
You had them?---
When did you have them?--- I always had them. I used to get them from the chemist.
They are the support shoe?--- Yes, I've always worn them.
Since when?--- Since the last few years since I've started getting pain in my feet.
You had pain in your feet, it seems, for three years before 1996. Before you saw Dr Witherow were you wearing these special shoes?--- No, not that I can remember."
It was later put to the plaintiff that she did not follow advice about wearing special shoes. She said "I definitely did. I followed all advice." The following exchanges then occurred:
"You wore them in your sneakers but you would go out sometimes in sandals and you wouldn't wear them?--- No, I never said that.
What did you say?--- I said you could only wear them in sneakers and if I had sandals on at home, I couldn't put them on. I didn't have sneakers on in the summer time around home; too hot.
…
Did you wear sneakers all the time after you were prescribed orthotics before you saw Dr Witherow?--- No.
Why not?--- Because I can't have my feet enclosed in shoes all the time with the pressure. If I had my feet in sneakers all the time, there's just the build of pressure.
…
Was that relieved by wearing these orthotics?--- No.
So how regularly did you wear these orthotics and sneakers?--- If I had to go out and watch my husband in horse events I would put them on and just sit down – when I had to walk from A to B.
…
And at home when you were doing your housework, what did you wear on your feet?--- I had big slippers and socks on.
Why didn't you wear the sneakers and orthotics?--- Inside my home?
To stop the pain in your feet?--- I had them inside my slippers.
You had your orthotics inside your slippers?--- Yes, but I didn't wear them walking around outside on the veranda---
What did you wear there?--- ---- Because I'd be sitting down.
What did you wear there?--- I'd wear my big sneakers but not when I'm walking around – like going to the shops and things like that.
So what you wear to the shops?--- I'd wear a very soft sandal.
Without orthotics?--- Yes, because you couldn't put them in the sandal.
And you wouldn't wear your sneakers to the shops?--- If it was in the winter time, but I couldn't stand the build up of the pressure underneath my feet with sneakers on all the time."
Later, the plaintiff was again asked about surgical shoes, and she said she had had them a few years ago. She said they were not prescribed, she had just bought them from the chemist. She said this was before the surgery with Dr Witherow. The following exchange occurred:
"Did they help?---Yes, but you can't wear surgical shoes all the time.
Why? If they help, why not?---Because it doesn't go with - when you go out, if you go out, like, of an evening, you're not going to - you don't want surgical shoes, so I used to wear my sneakers if I went out through the day and I'd put the inner soles in.
Is it that you would rather put up with the pain, or was it the position that you would rather put up with the pain than wear non-fashionable shoes?---Yes, well, I didn't go out a lot. I had proper shoes to wear.
You had proper shoes to wear. Did you wear them out at all?---Yes.
Where to?---Wherever I was going.
Did you wear them shopping?---Yes. I didn't wear them when I went out to dinner. I'd just wear a soft sandal.
Even though that would cause your feet more pain?---Yes, because I'd be sitting down."
Later, however, the plaintiff explained that she did not continue wearing surgical shoes nor did she think of wearing them with the prescribed orthotics because she believed that they did not work.
The plaintiff said that she had obtained and worn prescribed custom‑made inserts on two occasions. The first time was through Dr Zilko's clinic in mid 1996, just prior to the first operation by Dr Witherow. She said that the second time was through Mr Stovell, on the recommendation of either Dr Witherow or Dr Carter (although these were in fact splints prescribed by Dr Witherow to replace the fibreglass plasters). She said on each occasion she wore the custom‑made inserts until they wore out. She said that took a couple of months. She said during that period of time she wore them all the time. She agreed she did not get more than one lot made on each occasion.
The plaintiff agreed that Dr Zilko had recommended orthotics to her in May of 1997. She said she was reluctant to wear them because she tried them "that many times" and they just were not working.
The plaintiff agreed that, after Mr Carter's surgery, he had recommended she wear orthotics. The evidence showed that this was in 1998. She denied that when he saw her six weeks later she was not wearing them. She said that she went back to him and told him she was not wearing them any more, that she had tried them but the pain did not go away.
She said that Mr Carter had refused to operate on the fourth toes that were sticking up and had told her to get some shoes instead. This was in 2000. She said "I just got up and I just walked out, I didn't do it."
She ultimately agreed that the only time she actually tried custom‑made orthotics was just before she had seen Dr Witherow on the advice of Dr Zilko's clinic.
The plaintiff made it clear that she had now given up and was not going to try anything anymore.
The plaintiff said that no one had told her how orthotics worked other than just telling her she needed them. She said no one had explained that there could be some long term success from wearing them, despite pain. She said she was not warned against not wearing orthotics and was not told that, if she did not, an operation might fail.
Her evidence on this point was inconsistent with other evidence, in particular the evidence of Dr Carter. As will be discussed later, Dr Carter was adamant that he had a long conversation with the plaintiff about the need for proper orthosis and footwear, and discussed it with her on more than one occasion. He was also adamant that he had explained to her that, up to that point, she had not had optimum orthotic treatment.
I prefer Dr Carter's evidence to the plaintiff's. Not only do I find Dr Carter to be a reliable witness, and the plaintiff not a reliable witness, Dr Carter's evidence was supported by the documents he created at the time. In particular, in a letter to Dr Zilko dated 31 July 1998, Dr Carter wrote:
"She is not wearing her soft orthosis and is complaining of some pain as a result. I have impressed on her the need to keep wearing the soft orthosis until the post‑operative period is fully complete."
In a letter to Dr Ng dated 18 May 2000, Dr Carter wrote:
"She did not get any footwear advice, nor was she fitted satisfactorily with orthoses… With her inappropriate footwear, she has been unable to get comfortable so I have referred her to Fremantle Orthotic Services to get a soft conforming insole and extra depth and extra width footwear."
Interestingly, one of the expert witnesses, Mr Hardisty, said that the biggest factor in patients being "unable" to tolerate podiatric measures was fashion. In my view, the plaintiff's reluctance to follow the advice of her doctors in relation to orthotics stemmed from her dislike of the appearance of custom‑made podiatric shoes. She may well have believed that they did not work in the sense that they did not cure the damage caused by her rheumatoid arthritis. However, it is likely that they would have given her substantial pain relief, and obviated the need for her to have her fourth toes amputated. The plaintiff herself admitted that she may have obtained more pain relief over the last six years if she had taken advice and worn the orthotics that her doctors wanted her to wear.

Reliability

In her answers, the plaintiff contradicted herself as to whether she wore sandals to the shops or not. She also appeared to contradict earlier evidence about her level of capacity prior to seeing Dr Witherow. Her answer that she did not wear orthotics walking around outside on the veranda "because she'd be sitting down" was unusual. Further, the plaintiff's answers in relation to the need for an x‑ray were inconsistent, and I do not think that was due to confusion as to what was being asked.
Taken as a whole, the plaintiff's evidence did not give me confidence in her reliability as a witness, and I do not accept it where it conflicts with other evidence.
In addition, the plaintiff's demeanour caused me to doubt her reliability. At times she was hostile and indignant, particularly under cross‑examination. Some of her answers appeared to have been given in order to defeat what she perceived to be the purpose of the cross‑examiner, rather than to answer the question as accurately and honestly as she could.
The plaintiff, at 58 years of age, sees herself as a young woman. Being able to wear fashionable shoes is obviously important to her, but she is unable to do so. She is also distressed by her significant foot deformities. Her rheumatoid arthritis has caused her to suffer significant and disabling pain throughout her body for most of her adult life, and it is incurable. She is understandably bitter. It may be that her bitterness affected the way she gave her evidence. However, while her bitterness may be entirely understandable, her demeanour in the witness box did add to my overall assessment that I am unable to rely on her evidence.

Trevor Jeffrey

The plaintiff's husband gave evidence for the plaintiff. He confirmed that prior to her foot surgery she needed some help with lifting heavy things, but otherwise was able to do most things at her own pace. He said since the operations he had had to do a lot more.

Dr Zilko

Dr Zilko gave evidence for the plaintiff. He is a rheumatologist and immunologist with considerable expertise, and has treated the plaintiff for about 10 years.
He explained that rheumatoid arthritis is caused by inflammation of the lining of the joint and, if it's unchecked, it eventually causes joint damage.
Dr Zilko explained that rheumatoid arthritis pain is caused in two ways. The first way is where there is inflammation of the joint which leads to swelling and stiffness, which causes pain either when that joint is moved or when there is pressure on the joint. The second way is by causing mechanical deformities due to chronic damage.
Dr Zilko explained that, if treated early, the disease can be stopped before it causes joint damage. However, by the time the plaintiff first saw Dr Zilko, she had already had the disease for some years and it had been poorly controlled. It had already caused erosion.
Dr Zilko said the plaintiff was in the more severe group of rheumatoid arthritis patients. She had suffered symptoms in many areas, including ongoing pains in her left elbow. Dr Zilko said:
"It's pretty unusual to get significant elbow involvement. I think it indicates the degree of rheumatoid disease that she'd had and the length of time she'd had it and the disease that has been caused by it."
He said that clinically her disease was now reasonably well controlled and, if anything, it had got mildly better over the years. However, it would require ongoing suppression. Further, while the drugs control the pain, they do not control the disease. Rather, the drugs are used to "turn off the inflammation". An expert orthopaedic surgeon, Mr Hardisty, confirmed that the drugs cannot reverse damage done by the arthritis.
Dr Zilko said that the plaintiff's neck, shoulder and back complaints were unlikely to be caused by rheumatoid arthritis. Nor was her apparent hip pain. He believed that those pains were due to fibromyalgia, a nervous system dysfunction which is due to factors such as stress, not exercising or not sleeping well.
Dr Zilko explained why podiatric measures can assist rheumatoid patients. He said that a rheumatoid patient will have inflammation and often subluxation of the metatarsophalangeal joint. He explained that subluxation meant a partial dislocation, so instead of the joint being directly opposed, it moves up and out. The consequence is that the patients are often walking on the bones of the metatarsals rather than the pad that sits underneath them. He said podiatric measures are used to attempt to correct that. He said in the majority of cases such measures seem to work, but sometimes they do not. He said that, in Mrs Jeffrey's case, she said they did not help her and he accepted her word.
He said that, as far as he was aware, she had always been a compliant patient. However, in a letter of 14 June 1996, Dr Zilko noted that the plaintiff had taken herself off Prednisolone contrary to his advice. He explained that that drug causes side effects such as weight gain and round face, easy bruising and hair on the body. As a result of ceasing the drug, the plaintiff's symptoms increased. She apparently had active synovitis of her ankles and other joints.
Dr Zilko agreed he would have told the plaintiff that there were no guarantees with surgery. He said:
"I always say to patients that surgery doesn't always fix problems and that there are always some risks involved with surgery. I have always been cautious about foot surgery because sometimes it doesn't always go as we hope it will. So I don't think I would have just said "go off and have your feet fixed and there is 100% guarantee that it will always be right" so I would have expressed some reservations about whether it would work but I think we had reached the stage where it had to be considered."
Dr Zilko confirmed that surgical treatment was the last resort.
Dr Zilko said that, between the two operations by Dr Witherow, they were trying to treat the pain in her forefoot. He said it was not helped by the mechanical measures that they were instituting so it seemed more likely to have been caused by a mechanical factor rather than inflammation of the joint. So the only suggestion he could make was to try another variation of an insole.
Dr Zilko said that most patients with rheumatoid arthritis are able to do at least part‑time work, but said it depended a lot on what joints were involved. He said he could not say anything more than that the majority of patients with rheumatoid disease these days are not so disabled they cannot work. He did not express an opinion as to whether Mrs Jeffrey was capable of part‑time work, whether with or without her foot complaints.

Mr Anderson

Mr Anderson is the orthopaedic surgeon who amputated the fourth toes of the plaintiff. He was called by the plaintiff. He said that that surgery was not cosmetic, but had been done because the toe had displaced dorsally and was rubbing on footwear.

Dr Witherow

The first defendant, Dr Witherow, is an orthopaedic surgeon. He completed his original degree in 1981 and obtained his fellowship at the end of 1989. He solely does adult orthopaedics in the lower limbs. Rheumatoid arthritis patients make up a portion of his foot and ankle practice. He said that there is not a large incidence of rheumatoid arthritis in Australia.

Warnings

Success

Dr Witherow said that with this type of surgery, it would be uncommon for a patient to end up worse but agreed it must be possible.
Dr Witherow said he would not have told Mrs Jeffrey that she would be pain free. He said he did not think he had ever told an orthopaedic patient that he could make them pain free, not even with operations which have a high degree of success. He said with a person who had a chronic progressive condition which involved multiple joints, tendons, blood vessels and nerves, it is not something that you could say. He said you would be aiming to get rid of the problem.
Dr Witherow has a clear recollection of discussing with the plaintiff, during the first consultation, Mr Hales' surgery on her wrist. He recalls that the plaintiff had made a throw‑away comment to the effect "I know about orthopaedic surgery. I have had it and it did not work." He said that that comment led into a conversation about Mr Hales. The plaintiff told Dr Witherow that she was returning to see Mr Hales to discuss the possibility of having further surgery, as her wrist was still giving her problems. Dr Witherow said that he and the plaintiff discussed the fact that he felt Mr Hales was an excellent orthopaedic surgeon and it was the nature of orthopaedic surgery that not everything went the way you wanted it to go initially and that, if it was his wrist, he would return to see Mr Hales to further discuss it.

It is true that the pleadings did not allege the plaintiff had made such a comment. It was first raised in the cross‑examination of the plaintiff. It is also true that the limited records kept by Dr Witherow hampers the assessment of the accuracy of his recollections. However, it was my view that Dr Witherow was endeavouring to tell the truth in all respects. He was adamant that he had a clear recollection of that conversation, and his explanation of its contents was credible. Under cross‑examination it was put to him:
"You now say that you are implying that you would have told her, but I am asking you about your recollection, if you don't mind, and you are on oath?"
He replied:
"I understand I am on oath which is why I am trying to not say categorically I can, word for word, tell you what I said. That is my belief. We had a discussion and that was my – the tone of the discussion was for me to reassure her that seeing Mr Hales was the right thing for her to do."
He later said:
"There are some certain points of it that aren't vague. The statement that she made initially is not a vague recollection. I remember that quite vividly. As to what transpired subsequently and the wording of such becomes more vague."
Dr Witherow said he saw the plaintiff eight times in his office but only had recollections of three of those occasions, including this one.
I am satisfied that the conversation occurred along the lines that Dr Witherow recalls. I accept that the plaintiff does not recall saying that to Dr Witherow and I do not think she was deliberately concealing it.
Dr Witherow did not specifically recall what he had told the plaintiff about the surgery. However, he said that his routine practice would have included explaining to the plaintiff that at some point in the pre‑operative follow ups there would be an x-ray to see what had happened in relation to the arthrodesis.
In relation to what he told her about the prospects of success, he said:
"I would have indicated to her that I was hopeful that she would not have the pain under her forefoot from the heads of the metatarsals which I believe clinically was the cause of her pain."
He repeated that they had discussed the need to occasionally re‑operate on people because surgeries were unsuccessful. He said he would never have said categorically "you will have no pain". He said he thought that he would have expressed confidence that he could remove the pain, and that he was aiming to do so. However, that was in the context where they had discussed the fact that orthopaedic surgery is not always successful.
In addition, as noted earlier, Dr Zilko said that he would have told the plaintiff that there were no guarantees in surgery. While Dr Zilko's warning did not reduce Dr Witherow's duty to warn the plaintiff in those terms, it is additional evidence from which it can be inferred that the plaintiff knew that there was no guarantee the surgery would be successful.

Expertise

While Dr Witherow was questioned about his experience, counsel for the plaintiff agreed Dr Witherow was not obliged to tell the plaintiff about it.

One foot at a time

Dr Witherow was clear that, at some point, he and the plaintiff had discussed whether the second operation should be on both feet or only one foot at a time. The plaintiff wanted to get it all done in a single surgery. He later said that, by the time they had decided on doing fusions, he did not have a clear recollection of discussing whether it should be one or two feet.

After the first surgery

Dr Witherow said that, after the first surgery, he was happy with the position of the big toe. However, they did not fuse. This was an unfortunate outcome, but there was no evidence that this was caused by negligence.
The plaintiff still described a burning pain which she said could even be worse than it was before the surgery. He said that she said that she got as much pain when she lay down as she did when she was moving around. Accordingly, he said it was not a mechanical pain, and it appeared it was not due to the heads of the metatarsals.
Dr Witherow explained that non-mechanical pain can be made worse by being on your feet. However, unlike mechanical pain, non‑mechanical pain will not necessarily stop once you stop weight‑bearing. He said non-mechanical pain can be caused by rheumatoid arthritis, infection, nerves, or something else that medicine does not yet understand.
Dr Witherow offered the plaintiff two options. One was to simply take the screws out and leave the great toes unfused. In his evidence, he could not remember what her complaints of pain were. However, as he had suggested taking the screws out, he concluded that she must have been getting pain. He said the option of leaving the toes unfused was open because the movement of the joint was not causing her pain. However, even though the joints were not painful, fusion could still be of benefit in reducing the risk of the drift of the lesser toes. The plaintiff chose the option of having the toes fused. Dr Witherow also found a lump under the third metatarsal shaft that he felt was causing her pain when she put weight on it. Accordingly, he intended to further trim the metatarsal shafts. He explained that, even after the excision of the heads, bone could regrow. The plaintiff's expert, Mr Williams, agreed that this was an "acceptable" outcome.
Dr Witherow also said the plaintiff wasn't happy with the hallux valgus. "Hallux valgus" is the angle of the great toe, measured by aligning the mid‑point of the metatarsal bone (the long bone) with the mid‑point of the toe. However, he was adamant that he did not believe that the angle was "extremely inappropriate", or he would not have suggested to her that they just remove the screws. He said that he would have told the plaintiff that they could address the angle at the time of her surgery.
When cross‑examined about the reasons for performing the second surgery, Dr Witherow was not able to independently recall what pain the plaintiff was complaining of at that time. He had not made any note about her pain in his letter. He accepted that her burning pain was still there.
It was later put to him that, after the first surgery, the plaintiff had a stabbing pain in her big toe and pain on the top of her feet, in addition to the burning pain underneath her feet. Dr Witherow then said he felt that the stabbing pain she was getting may well be caused by the screw or because her arthrodeses had not healed properly. He said he felt the pains on the top of her feet were certainly "early on" because she was still healing from the resection of the metatarsal heads.
In my view, Dr Witherow's answers were due to his limited independent recollection. Initially when he was being cross‑examined, he was relying on the letter he had written to Dr Zilko to conclude what pain the plaintiff was complaining about. When he was reminded of what pain she claims to have had at that time, he then gave evidence as to what he had felt was the cause of that pain. It was not put to him that he had not formed those views at the time or that the plaintiff had not complained of that pain. Indeed, it would have been surprising if the plaintiff had asserted that she did not tell Dr Witherow what her pain was at that time. I do not understand that to have been the plaintiff's case. In all the circumstances, therefore, I do not find these answers concerning.
After the second surgery, there was some problems with the plaintiff's post-operative plasters, but the great toes did fuse.

Compliance

Dr Witherow said that post‑operatively he expected the plaintiff to be minimising her walking. It appears she did not, and the plasters were "destroyed". He said he had discussed with the plaintiff after the operation how careful they had to be. His evidence in that respect was confirmed by a discharge document from the hospital that appeared to have been signed by the plaintiff. However, Dr Witherow was of the view that her post operative behaviour had "remarkably" done no damage. He did not suggest that her great toes had moved from the position they were in when he last saw them.
Dr Witherow said he had not referred the plaintiff for orthotics, as she had said they did not work for her. He said he had referred to have some splints made to assist in her post‑operative care, as she had not managed, or complied with, the plasters.

Reliability of Dr Witherow's evidence

Counsel for the plaintiff challenged the reliability of Dr Witherow's evidence for various reasons.
Firstly, he argued that Dr Witherow's records were inadequate. Dr Witherow explained that his note‑taking practice was to record the relevant information in a letter that he would dictate back to the referring doctor. Mr Hardisty had the same practice.
Dr Witherow agreed he was aware that it was important to record warnings. He said he did where he particularly thought it was relevant, but if the risks were of a general nature then he was less likely to record them. He agreed he had not recorded anything relating to warnings of risks in this case.
No doubt he now regrets the limited nature of his records in relation to the plaintiff. However, Mr Clyne pointed out we have also been deprived of the plaintiff's x‑rays. It appears that she threw them away. Accordingly, I am left in the position of having to assess the reliability of the plaintiff and Dr Witherow aided only by the limited records he kept and their independent recollections, and, to an extent, the evidence of the other witnesses.
I agree Dr Witherow's notes could have been more comprehensive, but nevertheless found his evidence to be reliable.
Secondly, counsel for the plaintiff argued that Dr Witherow was evasive about his experience. I do not agree. In my view, his answers indicated nothing more than a degree of defensiveness to a searching cross‑examination.
Next, counsel challenged Dr Witherow's apparent recollection of particular matters. In my view, Dr Witherow was an honest witness who attempted to be accurate about the limits of his independent recollection.
Next, counsel pointed out some discrepancies between Dr Witherow's evidence and the pleadings. However, it was not suggested that Dr Witherow had recently invented his answers on those points. Nor did he recall specifically instructing his solicitors about those matters. Further, the matters were matters of detail rather than core factual assertions. For instance, the discrepancies included whether or not the plaintiff had initially complained about the angle of her great toes, when it was common ground that there was a significant angle of which the plaintiff was aware. Another example was whether the plaintiff had complained about a bunion, when it was common ground that she had the bunion, and that bunions are painful when shoes are worn. Another example was that, when giving evidence, Dr Witherow could only recall discussing the option of doing one foot at a time with the plaintiff in relation to the second surgery. However, it was pleaded that he also discussed this with her in relation to the first surgery. None of those matters caused me to doubt Dr Witherow's overall reliability, and certainly not his honesty.

Dr Carter

Dr Carter is a consultant orthopaedic surgeon who sees mainly foot and ankle problems. He was, of course, originally the second defendant in these proceedings.
He first saw the plaintiff in 1998, after the two surgeries by Dr Witherow. With his practice nurse, he prepared a document showing the relevant features of the plaintiff's feet at that time.
Significantly, Dr Carter recorded his opinion at that first consultation that there was good position of the great toe and good toe correction. He said by "good position great toe", he meant that the position of the great toe was good in terms of dorsiflexion and hallux valgus to enable it to be put into a good shoe. By "good toe correction", he meant that the toes were lying fairly parallel.
The plaintiff said she was getting increasing pain. She had pain in the great toe medially, a tender nodule and metatarsal head pain on both feet.
Counsel for the plaintiff pointed out that Dr Carter's view was that the scarring, regrown bone and articular cartilage were probably the cause of the plaintiff's ongoing pain. However, that was an opinion that Dr Carter had prior to his surgery. The surgery aimed to correct those matters, but in fact did not impact upon the plaintiff's pain (apart from some short‑lived pain relief in the small toes).
Dr Carter said the plaintiff complained of very little pain in the left great toe. He said she told him that generally that foot was satisfactory and it was the right foot that was giving her significantly more problems.
Dr Carter got a further x-ray which showed that new bone had grown after the previous surgery.
Dr Carter gave the plaintiff three options. The first was conservative treatment using orthoses. This was what he recommended. The second was to simply excise the nodule that was causing her pain. The third option was to fix the nodule but also to revise the length and curve of the metatarsal heads.
Dr Carter said the plaintiff was insistent that she wanted all of the surgery (option three) and did not want to try any further conservative treatment.
After the surgery, he gave her a prescription to obtain orthoses and advice on their use. Dr Carter said he had had a long conversation with the plaintiff about the need for proper orthoses and footwear. He said he did not believe that she had had optimum treatment prior to that time on the basis of what she told him. When she returned six weeks later, she was not wearing the orthoses and told him that she had not had them made up. Dr Carter gave her a further prescription.
He next saw her 18 months later. At that time she was complaining of pain in the great toe of her right foot, and in the ball of the first metatarsal where she had developed quite a large rheumatoid bursa under the big toe. She also asked him to remove the fourth toe on that foot which was popping up in the air and which she felt "looked awful". She said it was not painful but she did not like the look of it and it caught when she put on shoes. Dr Carter explained to her that he only did surgery if there were symptoms. He told her that removing the toe would cause the toes to crowd together in shoes unless she wore toe separators. He pointed out to her that, as she would not wear ordinary insoles, she would not wear a toe separator. She again asked him to remove it because it looked awful and he said that was more properly the work of a plastic surgeon. He said she left the room crying and he has not seen her since.

Expert witnesses

In addition to those experts who had treated the plaintiff, a number of experts were called to give their opinions. The plaintiff called Mr Williams. The defence called Mr Hill and Mr Hardisty.

Mr Williams

Mr Williams is a qualified orthopaedic surgeon. His particular interest is in upper and lower limb arthritic surgery. He saw the plaintiff on three occasions in 2005 for the purposes of these proceedings.
Mr Williams set out some of the history given to him by the plaintiff. She apparently told him that her foot problems first started in 1996 and the presenting problem at that time was pain in the forefoot areas and balls of the feet and radiating into the toes. She said she could not walk freely and had difficulty wearing any type of shoes without pain. After the first surgery, she told Mr Williams that she was "taken from the hospital to her car by wheelchair and from the car to her home by wheelchair as she was not able to use crutches because she had problems related to her rheumatoid disease with shoulder and hand pain." She told Mr Williams that she kept the fibreglass cast on for 1.5 months. (Her evidence was that it had been about a week. Dr Witherow believed she had told him it was only a day.)
Much of this and the other history apparently given to Mr Williams was inconsistent with known facts or the plaintiff's own evidence. However, as it is not known whether the error was the plaintiff's or Mr Williams, and as neither of those witnesses were questioned about the history recorded by Mr Williams, I do not place any weight upon it.
Mr Williams agreed that he had not seen the plaintiff's feet prior to 2005 and he was giving his opinion about the feet as they now were.

Mr Hill

Mr Hill is a consultant orthopaedic surgeon who predominantly practices in the lower limbs. Mr Hill saw the plaintiff on 18 January 2006 for the purpose of these proceedings.

Mr Hardisty

Mr Hardisty is an orthopaedic surgeon. He is currently the head of the department of the orthopaedic surgery department at Sir Charles Gardener Hospital. Most of his practice is in knee, foot and ankle reconstructive surgery, with approximately 20 per cent of his practice being patients with rheumatoid arthritis.
Mr Hardisty agreed he had not actually clinically examined the plaintiff and agreed that that usually helps to form a final opinion.
Counsel for the plaintiff said that Mr Hardisty was known to have given evidence both for and against plaintiffs on a regular basis and in a completely unbiased fashion. He said Mr Hardisty was never known to have leaned towards the medical profession in order to protect them but rather gave an unbiased view.

Differences of opinion

There were some differences of opinion amongst the various experts. As I have previously indicated, counsel for the plaintiff conceded Mr Hardisty's independence. I found Mr Hardisty's evidence to be both reliable and credible. His explanations for his answers were compelling. I accept his evidence in its entirety.
I further accept the evidence of both Dr Witherow and Dr Carter. While both doctors, and particularly Dr Witherow, have an interest in the outcome, I am satisfied that both gave reliable and credible evidence.
Mr Hill's evidence was to a similar effect. No challenge was made to his independence and he was clearly a credible witness. However, he was not asked to elaborate on his opinions to the same extent as the other doctors mentioned. Accordingly, his evidence was a little harder to evaluate. For that reason, I have relied most heavily on Mr Hardisty's evidence.
Mr Williams was undoubtedly expressing his honestly held opinions. However, some of his opinions contradicted the evidence of the other experts, and I am satisfied that he was simply wrong in relation to a number of matters. In particular, for reasons discussed below, I believe he is wrong about the hallux valgus being unsatisfactory from a clinical point of view. I also found his explanations as to the cause of the lateral drift to be most unconvincing. As a result, where other aspects of his evidence conflicted with the evidence of other experts, I prefer the evidence of those other experts.

Pleadings

The amended statement of claim pleads that the first defendant breached his duty to the plaintiff in three ways:
"By failing to advise the plaintiff of a number of matters in relation to the surgery.
By failing to provide adequate advice and support to the plaintiff by way of regular post operative examination and review.
By failing in both surgeries to correct the hallux valgus adequately, sufficiently or at all."

Failure to advise

In relation to the failure to advise, there are five steps that must be undertaken in deciding whether the plaintiff is entitled to damages. Those steps are:
1.Determining what were the risks about which the first defendant failed to warn.
2.In relation to each of those risks, determining whether it was material.
3.In relation to each material risk, determining whether that risk materialised (Rosenberg v Percival (2001) 205 CLR 434, per Gummow at [61] and [83]);
4.If a material risk did materialise then prima facie the failure to warn caused it to do so. There is then an evidentiary onus on the defendant to point to other evidence suggesting that the plaintiff would have had the operation even if warned of that risk. Once the defendant points to such evidence, the onus lies on the plaintiff to prove that, in all the circumstances, a causal connection existed between the failure to warn and the injury suffered by the plaintiff (Chappel v Hart (1998) 195 CLR 232, per McHugh J at [34]);
5.If the plaintiff proves the causal connection, the plaintiff must then prove the extent of her damage caused by the materialisation of the risk.

Dr Witherow said the angle of the great toe itself would not have changed since his surgery, but the other toes had not been as far away from her great toe when he had last seen her. Accordingly, they must have drifted away after her surgeries.
He said that in order to determine the cause of her present pain, he would need to examine her, reinvestigate her, and do a bone scan.
Dr Witherow said there was no evidence that the plaintiff's function was affected by her hallux valgus. He said he had never had the opportunity to test her function as she failed to return to him for review.
He said the literature suggested the only difference caused by an increased angle is a visual one not a functional one.
Dr Witherow said that, if he had set the big toe at a 15 degree angle, that would have left a larger gap between her first and second toe.
Dr Witherow agreed that the operation would cause some scar tissue, which can sometimes cause pain. However, he explained that scar tissue was a desired outcome in this case, because it's the only thing that would prevent the ongoing drift of the toes.
Dr Witherow said he believed that the plaintiff did have pain. However, he said he did not know why she had pain. Dr Witherow said it was difficult to understand the cause of the plaintiff's pain, particularly as it was not mechanical. He said it was likely to be caused by inflammation. He said it was hard to imagine what could have happened during the surgery that would leave her with that sort of pain. None of the possible complications of surgery that could cause that sort of pain had happened in her surgeries.

Mr Hill's evidence

Mr Hill believed that the great toe pain was caused by arthritis in the interphalangeal joint. He said an x‑ray or a bone scan could provide evidence to show that was so. He said an alternative explanation may relate to the scar tissue.
Mr Hill did not think that the alteration of the hallux valgus would necessarily cause the patient to have a different gait and balance in the foot. He said it might potentially do so if the joint was mobile, and not fused and stable.
Mr Hill agreed that removing the metatarsal heads could involve a trade off. He said removing the heads could lessen the balance of the muscles in the foot, but did not see it as having any further consequences. Further, he pointed out that the plaintiff would already have had considerable impairment of the overall balance of her foot from the joints which had been affected or destroyed by the rheumatoid disease.
Mr Hill thought that her pre‑operative burning pain could have been caused by a combination of things, but was most likely the inflammation and loss of function and mechanics in the metatarsophalangeal joints.
Mr Hill thought her current burning pain was a combination of scar tissue from the surgery, the rheumatoid arthritis and the excision of the metatarsophalangeal joints.

Mr Hardisty's evidence

Mr Hardisty believed that the hallux valgus was not the cause of her sensations of pain and burning. He said he saw hundreds of people with that condition that did not have burning. He said the rheumatoid nodules she had on both feet were a very significant cause of burning. He explained how they cause pressure on the nerves which creates the burning pain. He also thought that the stabbing pain in the plaintiff's great toes could be caused by the large rheumatoid nodule under the big toe joint.
Mr Hardisty agreed that if the plaintiff was suffering a stabbing pain or burning pain when she had no nodules, it would stand to reason that it was not the nodules causing the pain. However, it was accepted by counsel for the plaintiff that there is a possibility that the burning pain has been caused by different things at different times. Given the clear evidence of the various experts that burning pain can be caused by nerve pressure or by a person walking on the bones of their feet, there is no reason in logic why the cause could not have changed over time.
Mr Hardisty said that it could take up to a year or more before patients settled down after surgery. In that time, the patient could continue to suffer from burning pain in the area of the metatarsal heads. He said if it was still there after a year and the swelling had come down and there was no prominences whatsoever, he then would be looking for other causes of burning rather than metatarsal heads. He said it was possible that scar tissue was causing the burning. However, he said that you would not expect a constant burning pain in that situation. If it was a constant burning pain, he would be looking for some problem with the neuropathy. He explained that rheumatoid arthritis could cause those sorts of problems. He agreed that it was possible that damage to the nerves during surgery could also contribute to ongoing burning.
Mr Hardisty agreed that the excision of metatarsal heads could cause additional pain to a patient due to scar tissue and the regrowth of bone. He said that was not common, but it was possible. Mr Hardisty said the metatarsal pain tended to be more on the plantar aspect (the bottom of the foot).
Mr Hardisty agreed that a nodule at the head of the screw is more likely to have been caused from the screw itself rather than the rheumatoid disease. He agreed that could cause a stabbing pain. He said he was rare for a loose screw to cause pain but that it could. However, Mr Hardisty believed that the stabbing pain experienced by the plaintiff was due to the shape of her foot and the effects of her rheumatoid arthritis.
Mr Hardisty agreed that the hallux valgus could affect the balance of a foot which in turn could cause pain in other parts of the foot.
Mr Hardisty said it was pretty hard to say what the plaintiff's present cause of pain was without the benefit of an examination. He said it could be caused by any one, or any combination, of the various factors put to him.
I accept Mr Hardisty's evidence that the causes of the plaintiff's existing pain could be due to a number of factors, or a combination of factors.
I further accept his opinion that the hallux valgus is not a cause of her pain.
I accept his opinion that it is possible that one of the causes of the burning pain is scar tissue or nerve damage due to the surgery. However, as it is a constant pain, it is likely to be caused by her rheumatoid arthritis.
I further accept Mr Hardisty's opinion that her stabbing pain is caused by the rheumatoid arthritis.
There was little evidence as to the cause of the pain at the top of her feet. However, as it too is a constant pain, it is likely to be caused by her arthritis.
It is significant that, shortly after Dr Witherow's surgeries, Dr Carter was of the view that the position of the great toes was good. The plaintiff also had little complaint about her left foot at that time. That emerged from the evidence of both Dr Carter and Dr Hill. Given that she now complains of severe pain in both feet, that further supports my finding that her existing pain is due to her rheumatoid arthritis condition.

Injuries

In par 24 of the amended statement of claim, the plaintiff sets out the pain, injury and permanent and residual disabilities she claims to have suffered due to the breach of duty by the first defendant (and by the second defendant).
I accept she has continuing severe pain in both of her feet. It is possible that one of the causes of that pain is the surgeries performed by Dr Witherow. However, I do not consider that there is more than a remote chance that that is so. In my view, her pain is likely due to her arthritis, and her failure to wear orthoses. In any event, even if the surgeries have contributed to her pain, that would not be due to any negligence by Dr Witherow. Rather, it would be due to not uncommon surgical sequelae, such as nerve damage, pain from screws, and potentially floppy lateral toes.
Even Mr Williams agreed that all of the surgery done by Dr Witherow was quite appropriate and quite justified. His only real criticism was the hallux valgus. Mr Williams said that there was "no right or wrong" in revision surgery in a very difficult foot. He said "you just try to do your best" to improve a situation and in this case it had not really succeeded for the patient. He agreed that that was because she had a difficult foot with severe rheumatoid arthritis.
I find that nothing the defendant did caused the plaintiff's ability to walk to be impaired, other than the inevitable impairment during her recovery from surgery.
I accept that the plaintiff has scarring on the toes of both feet, but again that was not caused by any negligence by the first defendant.
It is not clear where the allegation in 24.4 comes from. The plaintiff did not give evidence of such an inability. Mr Hill said the plaintiff was able to flex her lateral toes and the interphalangeal joint of the great toe. Obviously, the metatarsophalangeal of the great toe had been fused. He said, while there is some expected weakness of resisted flexion in the lateral toes, this is an entirely expected sequelae from a salvage excision arthroplasty. This issue was not explored in the evidence not was it pursued in the plaintiff's closing.
I accept that the plaintiff is unable to wear commercially produced shoes. However, that is very common with rheumatoid arthritis patients and there is nothing to suggest that anything done by the defendant contributed to this. Indeed, had the hallux valgus been of a lesser degree, she would have had even more difficulty in wearing shoes.
It was not pleaded that the removal of the metatarsal heads contributed to the lateral drift, due to the floppiness of the toes. Nor did the weight of the evidence support that. In any event, floppiness is a desired outcome of this sort of surgery. Indeed, Dr Carter felt that the plaintiff's toes were insufficiently floppy, and aimed to increase the floppiness in his operation.
It is also clear that the insufficient floppiness found by Dr Carter did not impact on the plaintiff wearing special shoes, as she would not have worn them anyway. Further, the insufficient floppiness was not damage caused by Dr Witherow's surgery. Rather, the surgery was not as successful in achieving floppiness as it might have been.
I accept the plaintiff does not like showing her feet, but again that has not been caused by the defendant. I further note that 10 years ago Dr Carter found that the plaintiff's toe correction was good. Since that time, the plaintiff has continued to suffer from rheumatoid arthritis and continues not to wear custom‑made shoes and orthoses. She also elected to have her fourth toes amputated, which further contributed to the lateral drift of her toes.
I do not accept that the hallux valgus caused pressure on the lateral toes which resulted in their drift. I find that the lateral toes drifted as a result of the plaintiff's rheumatoid arthritis. That in turn, caused her fourth toes to pop up.
The plaintiff has failed to establish that any of her present pain, injury and disabilities were contributed to by any breach of duty by the first defendant. Accordingly, the plaintiff's claim is dismissed.

Damages

If I am wrong about the defendant's liability, the question of damages would then arise. However, in this case, it is simply not practical to make a provisional assessment of damages, as the variables are too numerous. For example, if I am wrong that the plaintiff would have had the operations even had she been properly warned, it would then be necessary to determine whether she would have had the operations at a later time or not at all. The answer could impact upon the damages for the stabbing pain in her great toes, the pain on the top of her feet, the surgeries themselves, and the scarring. The assessment would also need to be done in light of the fact that, prior to Dr Witherow's surgeries, the plaintiff already had severe and disabling pain in her feet.
If I am wrong about the hallux valgus being satisfactory, and also wrong about the hallux valgus not causing any of the plaintiff's existing condition, it would be necessary to determine what aspects of her existing condition were caused by the hallux valgus and then assess damages in respect of those aspects. Those aspects could include the plaintiff's drifting lesser toes, the popping up of the fourth toes (and the amputation of those toes), the alleged loss of balance, the alleged change of gait (with the consequences that flowed from that, including possibly bunions and bursa), the burning pain, the stabbing pain in the toe, the pain on the top of her feet, the appearance of the feet, the impact on her quality of life, and any loss of chance of improvement. The award of general damages would depend on which of those matters, or which combination of those matters, were found to have been caused by the hallux valgus.
Further, if I am wrong about my finding that the plaintiff would have gone ahead with surgery on both feet at once, even if properly warned, a number of issues arise. It would be necessary to consider whether, if only one foot had been done, the other foot would not have been done. If it would not have been done, it would need to be determined whether it would be in any better condition than it is now. If so, it would need to be determined to what extent, and then what would be the appropriate assessment of damages for that.
The claim for general damages also includes the loss of a chance to work. I would not award any compensation for this. In light of the plaintiff's work history, her physical condition prior to the surgeries with Dr Witherow, and her rheumatoid arthritis, the chance that she may have returned to work was nothing more than speculative. Accordingly, it should not be taken into account (Malec v JC Hutton Pty Ltd (1990) 169 CLR 638).
In all of the circumstances, it is simply not possible to usefully assess damages.

Discounting factors

Even if an award of general damages could be assessed, it would be necessary to discount that award. The most significant discounting feature is likely to be the plaintiff's failure to mitigate.

Failure to mitigate

The plaintiff was aware of the need to wear orthoses and proper shoes. However, for fashion's sake, she sometimes chose not to do so when she was going out or going to the shops. While that choice may be understandable, in my view it is not reasonable to burden Dr Witherow with the consequences.
Further, it is not known to what extent the plaintiff's condition would have been improved had she accepted Dr Carter's recommendation for orthoses and a proper shoe, rather than proceeding with his surgery.
The plaintiff also failed to return to Dr Witherow for post‑operative care, after seeing him for the last time five weeks after surgery.
She also failed to follow Dr Carter's advice as to orthoses, given to her on two occasions after his surgery. After the second time she simply did not return to see him.
Some months later, on 16 March 1999, Dr Zilko again referred her to Dr Carter. The plaintiff did not act on that referral at all. On 31 March 2000, the plaintiff was again referred to Dr Carter, and saw him on 18 May 2000. He recommended insoles and proper shoes, noting she was wearing inappropriate shoes. She did not accept that advice, and went instead to Mr Anderson for amputation of her fourth toes.
In my view, the plaintiff's refusal to try custom‑made orthoses and prescribed shoes, in circumstances when she has actually only tried custom‑made orthoses on one occasion (shortly prior to the first surgery), was not reasonable. Furthermore, I find that it is likely that refusal has significantly contributed to her existing condition. It is regrettable that the plaintiff has reached the point where she has completely given up. It is to be hoped that one day she changes her mind.

Gratuitous services

The plaintiff's daughter helps her with household activities for about a day a week. Her husband assists her on an "as required" basis.
The basis for a claim for gratuitous services is the need of the claimant for the services provided (CSR Ltd v Eddy (2005) 80 ALJR 59, per Gleeson CJ Gummow and Heydon JJ at [20] and Newman v Nugent (1992) 12 WAR 119 per Ipp J, with whom Pidgeon J agreed, at 128). The damages are not to be assessed by reference to any services the claimant would otherwise have provided for other members of the family (CSR (supra), per Gleeson CJ, Gummow and Heydon JJ at [21] and Newman (supra), per Ipp J at 129). Account needs to be taken of the fact that a portion of the work done by the daughter and husband were for the benefit of the husband, not just the plaintiff (Newman, per Ipp J at 130). There was no evidence that any of the work done by either the daughter or the husband were solely for the benefit of the plaintiff. There was no evidence that she needed help to dress or wash. All of the help was rendered in respect of household work.
More significantly, account needs to be taken of the plaintiff's pre‑existing condition (Newman, per Ipp J at 130). The plaintiff suffered from severe rheumatoid arthritis. It was in all of her joints. The plaintiff's wrists clearly impacted on her ability to perform household tasks. Further, account must be taken of the possibility that the plaintiff's rheumatoid arthritis would have deteriorated to the point where she needed gratuitous services to the current extent in any event.
For future gratuitous services, I would have allowed four hours per week at $15 an hour, totalling $60 per week. I would have discounted this by 25 per cent. The calculation would therefore be $60 x 698.7 (the relevant multiplier) x 0.75 = $31,442.
For past gratuitous services, the calculation would be $60 x 520 (weeks) = $31,200. The plaintiff would be entitled to interest on the past gratuitous services at the rate of 3 per cent per annum, which would be 0.03 x 10 (years) x $31,200 = $9,360.