Williams v Fraser

[2021] NSWSC 416

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Williams v Fraser [2021] NSWSC 416

Hearing dates:

15-18, 22, 24-26, 29 June, 1 July and 22 September 2020

Date of orders:

20 May 2021

Decision date:

20 May 2021

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

(1)    Judgment for the defendants.

(2)    Costs reserved.

Catchwords:

MEDICAL NEGLIGENCE – 18 year old plaintiff with undiagnosed congenital pars defect – where radiologist failed to report on the existence of the defect in mid-2012 – where radiologist admitted breach of duty – where plaintiff alleges that she complained of symptoms to orthopaedic specialist that were indicative of her congenital condition – where orthopaedic surgeon denies any such complaint – where plaintiff not thereafter treated conservatively – where plaintiff subsequently required spinal surgery in mid-2013 – whether plaintiff’s loss and damage caused by radiologist’s breach – whether conservative management of the condition during intervening 12 months would have avoided deterioration of her condition or the need for surgery with severe consequences or whether the outcome was unavoidable even if correctly treated and managed – standard of proof – whether plaintiff established loss and damage on balance of probabilities or merely a statistical chance that her condition could have been successfully managed without surgery if diagnosed earlier

Legislation Cited:

Civil Liability Act 2002 (NSW), Part 1A, ss 5B, 5D, 5I, 5O

Cases Cited:

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542

Bergman v Haertsch [2000] NSWSC 528

Bolitho v City and Hackney Health Authority [1998] AC 232; [1997] UKHL 464

Browne v Dunn (1893) 6 R 67

Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55

Connor v Blacktown District Hospital [1971] 1 NSWLR 713

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

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Morris v Hanley (2003) 173 FLR 83; [2003] NSWSC 42

Najdovski v Crnojlovic [2008] NSWCA 175

Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403

Oneflare Pty Ltd v Chernih [2017] NSWCA 195

Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311

Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12

Category:

Principal judgment

Parties:

Hailee Williams (Plaintiff)
John Fraser (First Defendant)
Michael Stening (Second Defendant)

Representation:

Counsel:
J Morris SC with P D'Arcy-King (Plaintiff)
J Downing (First and Second Defendants)

Solicitors:
Gordon Legal (Plaintiff)
HWL Ebsworth (First and Second Defendants)

File Number(s):

2015/153227

Publication restriction:

Nil

Judgment

1. HIS HONOUR: Hailee Williams was born in March 1994. By June 2009, when she was 15, Ms Williams had developed pain in her left hip. She consulted her general practitioner about this who referred her in November that year to Dr Michael Stening. Dr Stening reported on 21 November 2009 that Ms Williams suffered from “iliac apophysitis left anterior superior iliac spine”. Between June 2010 and May 2012, Ms Williams continued to experience, and to complain to her general practitioner of, pain in her hip and lumbo-sacral region. She was referred to Dr John Fraser for a pelvis and hip X-ray and an ultrasound of both hips. In his reports upon the X-ray dated 24 May 2012 and the ultrasound dated 31 May 2012, Dr Fraser indicated that there was no, or no significant, evidence of abnormality. Dr Fraser’s reports were provided to Dr Stening when he examined Ms Williams again on 20 June 2012. On that day, Dr Stening reported to the general practitioner that Ms Williams had tenderness over her anterior superior iliac spine with discomfort on hyperextension of the hip. He expressed the view that Ms Williams had developed a reccurrence of her iliac apophysitis and recommended cortisone injections, three weeks of rest and abstinence from sports. Ms Williams was given an injection by Dr Stening shortly thereafter.

2. Ms Williams alleges in these proceedings that her condition was not thereafter clinically managed appropriately or indeed at all. After 20 June 2012, Ms Williams’ condition became progressively worse. She alleges that Dr Fraser had been given a history of lower lumbar pain in addition to hip pain but failed to inform her general practitioner about this. Despite his original response to the second further amended statement of claim, Dr Fraser has now admitted that he breached his duty of care to Ms Williams in that he failed to report the existence of her pars defect in the X-ray report on 24 May 2012. Ms Williams alleges further that Dr Fraser should have reported upon her complaints of back pain which would have alerted Dr Stening. Ms Williams maintains that if Dr Stening had been aware of the existence of her pars defect, in combination with her complaints of pre-existing back pain, she would have been treated conservatively, or in a way that would have avoided a deterioration of her condition and what became the need for later surgery. In short, Ms Williams alleges that Dr Stening’s reliance upon Dr Fraser’s deficient X-ray report meant that she was in a vulnerable position with undiagnosed spondylosis or spondylolisthesis that exposed her to a risk of harm if left untreated. She contends that Dr Stening negligently failed in such circumstances to arrange for or to offer her appropriate conservative, non-operative clinical management and that the operation to which she ultimately came would and should have been entirely avoided.

3. More particularly, Ms Williams’ case is that if non-operative management had been instituted, she would on the balance of probabilities never have proceeded to surgery and would accordingly never have been exposed to the risk of a severe, disabling and intractable neuropathic pain condition from which she now suffers as a consequence. Ms Williams maintains that had her pars defect been identified and reported by Dr Fraser, her condition would have been investigated further and she would have been sent for specialist physiotherapy and to a paediatric spinal specialist. Ms Williams alleges that she would have been advised to cease work immediately or at least any work that required bending, lifting or twisting and would have been given time for her ligaments to mature and tighten. She would have been told to strengthen her core muscles. Ms Williams says that she would in these ways have avoided doing any further damage through inappropriate work or engaging in what to her were potentially dangerous work practices. It is Ms Williams’ case that she would have been diverted from surgery and would not have suffered her current pain condition.

4. There is a secondary issue with respect to Dr Fraser. Ms Williams maintains that he was given a history by the general practitioner that she was suffering from bilateral hip pain as well as from lower back pain. There remains a debate about the state of his reports in that he did not set out the presenting clinical condition upon which he was commenting. In other words, in terms of the X-ray report, he did not include any history at all and in terms of the ultrasound report he only included bilateral hip pain but did not include lower back pain.

5. The claim against Dr Stening largely relates to his history taking, examination, diagnoses and clinical management on two primary occasions, 20 June 2012 and 3 December 2012. Ms Williams attended each of those consultations with her mother, but there is a dispute as to whether Ms Williams or her mother ever made a complaint of back pain to Dr Stening. Ms Williams and her mother say that they did: Dr Stening denies it and in so doing relies substantially on his letter recording the consultation sent to the general practitioner. Dr Stening says that if he had been given a report of back pain, he would have instituted the non-operative treatment program described earlier. The essence of Ms Williams’ claim is that Dr Stening’s failure to heed her complaints of back pain or to take a proper history affected his diagnostic assessment and the instigation of appropriate restrictions and conservative non-operative management. In the events that occurred, Ms Williams underwent a lumbo-sacral spinal fusion in June 2013. Her post-operative pain syndrome dates from then.

6. This case is far more complicated than that summary suggests, and to the extent that it attempts efficiently to encapsulate the essence of Ms Williams’ contentions, it is potentially misleading. As the parties have acknowledged, there are significant and contentious factual disputes touching the questions of the defendants’ alleged breaches of duty and whether any breach that is admitted or proved is causally related to damage that may have been sustained, that require resolution before Ms Williams’ allegations and the associated respective liabilities of Dr Fraser and Dr Stening can be understood and determined. It is to those factual matters that attention must be directed.

7. In that setting, it is instructive to record in general terms the historical framework or summary which Hailee Williams maintains informs the allegations of breach of duty which she asserts in these proceedings. As will later emerge, this history is not completely uncontentious.

Hailee Williams’ historical summary

8. Hailee Williams was born with congenital or dysplastic spondylolysis (pars defect). She was regularly involved in sport during her schooling and teen years including dancing and gymnastics. Later, she started running regularly and did kickboxing. Her medical history includes asthma and she suffered recurrent urinary tract infections. She had an episode of pyelonephritis. She also underwent a tonsillectomy.

9. In November 2009, Hailee Williams started experiencing left hip pain for which her general practitioner Dr Amin Mutasim referred her for pelvic X-rays. She was referred to Dr Michael Stening, an orthopaedic surgeon. He saw her first on 21 December 2009 and diagnosed a left anterior superior iliac spine apophysitis. He noted a six-month history of symptoms and advised conservative management.

10. Ms Williams first reported right-sided lower back pain to her general practitioner in November 2011. About that time, she took a job in a Chinese restaurant as a waitress, which involved clearing tables, taking orders and carrying plates. She did not have any difficulties with these tasks. During this time, she would also attend a gymnasium several times per week and engaged in kickboxing style exercise. She was not involved in the combat style of this sport.

11. In about March 2012, Ms Williams commenced work in a childcare centre. Initially, she did not find this work difficult, but after one month or so she developed pain in the left hip area. At the time she was 18 years old. Her work in childcare required repetitive lifting from the ground to waist level. There was also a lot of twisting of her lower back.

12. Between December 2011 and May 2012, Ms Williams reported episodic neck, back and right hip pain according to the clinical records of Hawkesbury Family Practice.

13. On 21 May 2012, she attended the Richmond Market Place Medical Centre and reported bilateral hip pain and tenderness over the left anterior superior iliac spine and L4/5 region. Her general practitioner referred her for X-rays of the right hip, left hip and pelvis, an ultrasound of both hips and sent her for an orthopaedic review.

14. The referral notes for X-ray mentioned lumbar spine discomfort. However, there was no formal request for an X-ray of the lumbar spine.

15. On 24 May 2012, X-rays of the hip and pelvis were undertaken, and a report prepared by Dr John Fraser, radiologist. Dr Fraser reported in summary that the hip joints were normal and that there was no evidence of arthropathy or other bony abnormalities. The ultrasound of the hip undertaken at Castlereagh Imaging on 31 May 2012 was reported as normal, again by Dr Fraser. In the report of the X-ray, there was no disclosure of a pars defect.

16. Ms Williams attended Dr Stening on 20 June 2012. She brought X-rays of her hips and pelvis to that appointment. Dr Stening did not identify a pars defect on the X-rays or the films. On that occasion, Dr Stening recorded the history of recurrent pain around the anterior aspect of both hips and tenderness over the anterior superior iliac spine. Dr Stening made a diagnosis of left and right ASIS apophysitis. He ordered conservative cortisone treatment as well as rest. Despite that, the symptoms continued. Dr Stening gave Ms Williams a medical certificate restricting her from lifting while squatting for three months. He advised her that she should not do any contact sport and that the symptoms would resolve as her growth plates developed.

17. In early December 2012, Ms Williams reattended Dr Stening as her pain had not resolved. She stated that at the time she was suffering from back and hip pain. Dr Stening ordered an MRI and ultrasound of her left hip. According to his notes, he did not order any examination of the spine because he was not given any history of the back pain.

18. The MRI and ultrasound of the left hip were reported as normal. Treatment continued to be conservative and Dr Stening referred Ms Williams to a physiotherapist (O’Neil Physiotherapy). The referral letter from Dr Stening stated ‘Bilateral ASIS tendonitis for strengthening programs’. There was no reference to back pain in the referral.

19. On 10 January 2013, Ms Williams attended the O’Neil Physiotherapy Practice and saw Mr Craig Seabury, physiotherapist. He recorded history of worsening bilateral hip pain for more than one year. He also noted lumbar discomfort.

20. Physiotherapy continued without any success. Mr Seabury reported back to Dr Stening on one occasion in a letter erroneously dated 28 June 2013.

21. Hailee Williams was prescribed some home exercises. During this period of performing exercises, her problems became worse and she was struggling at work. Sometime around February 2013, she found it difficult to climb stairs. Physiotherapy continued until approximately 20 May 2013.

22. On 3 May 2013, Ms Williams was seen by an osteopath, Dr Thomas Samels. She was reviewed three times by him, and he recorded findings of low back pain and hip pain. Sometime in May 2013, Ms Williams started experiencing urinary incontinence.

23. On 5 June 2013, Dr Samels ordered a lumbar spine X-ray. In June 2013, Hailee Williams consulted her general practitioner seeking a referral to Associate Professor William Walter, an orthopaedic surgeon, for a second opinion. On 11 June 2013, she had an X-ray of her lumbar spine which demonstrated a 1.7cm anterior slip of L5 on S1 due to bilateral pars defects amounting to a grade II spondylolisthesis. The next day Ms Williams saw Dr Walter. He recorded a history of 18 months of pain which was initially a stabbing pain in the groin, but which had moved to the lower back and buttocks bilaterally.

24. Dr Walter reported that Hailee Williams was suffering from paraesthesia on the dorsum of the right foot, along with urinary incontinence with urgency. He performed a neurological examination and reviewed some of her prior radiology, nothing that an X-ray of her lumbar spine showed 50% spondylolisthesis at L5 on S1. He then referred Ms Williams to Dr Andrew Cree, orthopaedic surgeon, for urgent review.

25. On 12 June 2013, she was admitted urgently to the Mater Hospital.

26. On 13 June 2013, Hailee Williams underwent a further MRI scan of her lumbosacral spine which was reported with Grade III spondylolisthesis and severe L5 foraminal compression. She was seen on 13 June 2013 by Dr Cree who recorded bilateral L5 radiculopathy and partial cauda equina syndrome. Dr Cree was concerned about urinary incontinence worsening over the previous three months. In neurological examinations, he found a minimal weakness of extensor hallucis longus bilaterally, although the rest of the examination was normal. Dr Cree also noted some slight hypo-anaesthesia about the dorsum of the right foot and that the straight leg raise test was positive bilaterally.

27. On 13 June 2013, Ms Williams underwent an L5/S1 spinal decompression and fusion. On 14 July 2013, Dr Cree considered that Ms Williams was developing secondary pain syndrome and referred her to a pain management specialist. On 27 November 2017, Ms Williams was reviewed by Dr Cree who noted that she continued to have ongoing discomfort in her lower back with pain intensity ranging from 6/10 to 10/10 and that she had syncopal episodes as a result of severe pain. He also noted her to have pain in both legs, the left being worse than the right. Dr Cree suggested that enlargement of lumbar foraminal dimensions may alleviate her legs symptoms.

28. On 19 February 2018, Ms Williams was reviewed by Dr Cree and he suggested a further surgical decompression to enlarge the narrowed foramina at L5/S1 for that purpose.

29. On 13 March 2018, Hailee Williams was admitted to Westmead Private Hospital and underwent removal of lumbar L5 instrumentation and resection of the inferior pedicle walls to create more room for L5 nerve roots. However, she continued to experience low back and bilateral leg pain.

Breach of duty

30. In this context it therefore becomes necessary first to examine and determine the issue of precisely what complaints Hailee Williams made to her medical practitioners and when.

Hailee Williams

31. Ms Williams gave evidence in the form of statements dated 1 August 2019 and 19 May 2020, upon which she was extensively cross-examined. Ms Williams acknowledged that she recalled some things very clearly but that she had only a vague recollection of others. For the purpose of making her statements, Ms Williams had been shown the clinical records of hospitals in which she had been treated in order to refresh her memory about the dates and times of various consultations with doctors. Ms Williams stated in terms that her statement is based on her memory of what happened at each of her appointments or admissions or presentations to hospital but that there are many matters that she cannot now recall.

32. Ms Williams recalled her first appointment with Dr Stening on 20 June 2012. She was at that time taking daily Voltaren and Panadol for her back and hip pain. Her mother attended the consultation and she communicated with Dr Stening unless he spoke directly to Ms Williams. Her statement contained the following paragraphs:

“87. I have a picture in my mind of handing Dr Stening a large envelope from the radiologist. He took the envelope over to a light box. I recall him opening the envelope and taking out a sheet of paper. The large envelope had X-ray films in it and a sheet of paper which I believe was the X-ray report. I recall him looking at the sheet of paper and placing it back in the envelope and then returning to his desk. To the best of my recollection now, he did not look at the films on the light box. I have no picture in my head of Dr Stening taking any of the X-ray films out and looking at them on the light box on that appointment. He handed the envelope back to either me or my mother. I recall Dr Stening writing on a sheet of paper on his desk.

88. I do not recall whether I informed Dr Stening I was working as a childcare worker at that consultation or at subsequent consultations. I may have filled out this information on a form, or my mother may have told him.

89. I now know from reading his reports that Dr Stening was aware of my work, although I do not now recall how that information was conveyed to Dr Stening.

90. I do not precisely recall the words I used to describe my pain because I recall at that stage I had a lot of trouble trying to work out how to verbally describe the pain and where it was on my body, but I recall standing up from my chair and telling and showing him, using my hands, that it hurt in my hips (indicating a point inside the points of the hip) and then turning around and placing each hand either side of my spine across my lower back. I have been asked to recreate the demonstration I performed for Dr Stening and I attach two photographs of the hand movements I used on the day. These photographs are marked ‘A’ and are to be found at pages 53 to 54 of this statement.

91. To the best of my recollection, I recall he asked me to get up on an examination table and sit on the edge of it. I recall laying [sic, lying] down on my back and he was raising both legs up and down while they were straight. I do recall being able to have my legs raised and lowered without any discomfort. I cannot recall experiencing any pain during that procedure. I cannot now recall if there were any other specific assessments conducted on the examination table.

92. I do not have any picture in my mind of lying on my front and I do not recall Dr Stening visually examining my back. I do not have any recollection of Dr Stening asking me to perform heel to toe walk or to remove my shoes or clothes. I do not have any recollection of Dr Stening asking me to adjust my clothing so that he could examine me. At that time I was still body conscious and I was not used to people looking at my body or touching me. To the best of my recollection he did not do so.

93. I recall being told by Dr Stening words to the following ‘You are experiencing pain due to growth plates and that the pain should resolve over time. You will grow out of it and there is nothing else you can do. It is very common and nothing to worry about.’

94. I recall my mother discussing my treatment with Dr Stening. I do not recall the precise discussion however I recall there was mention ‘You could try a cortisone injection that may relieve the pain, but there is no guarantee it will be effective.’

95. I do not precisely recall when, perhaps a couple days later, my mother took me back to the rooms of Dr Stening for a cortisone injection for my pain. My mother was present throughout that consultation. He gave me a cortisone injection into my left hip.

96. On this occasion, I observed Dr Stening going into open room on the side of his office where there was another examination bed with a curtain. Upon his return I was instructed to lay [sic, lie] on the examination table and I was asked to adjust my clothing by pulling my top up and my pants down to about my crotch so that my undies were showing. Once I was settled, he gave me an injection into my left hip on the front of my body. I did not get any injection on the right-hand side and I did not get any injection my back.

97. I recall again hearing a discussion between my mother and Dr Stening regarding the injections and possible follow up reviews. I have no specific recollection of exactly what was said but I recall we were told: ‘It will take a few weeks to know if you will get a lot of benefit from the injection. It is not guaranteed to stop your pain and you will have to take it easy at work and home and you should not play sport for a few weeks’.”

33. Ms Williams later described her second consultation with Dr Stening later that year as follows:

“116. I do not precisely recall when, but I recall my mother taking me back to the rooms of Dr Stening in late 2012. My mother was present throughout the consultation and I heard her discussing my condition with Dr Stening, although I do not recall all of the details of what was said.

117. To my recollection, I barely spoke during that consultation and I let my mother speak on my behalf. I do recall, however, telling Dr Stening words to the effect of, ‘My pain has not gone away, it’s in the same places as before and it’s much worse.’

118. To the best of my recollection, at the time I saw Dr Stening on this occasion, I did not have any numbness or any weakness or cramping in either leg. I did not have any urinary difficulties. These things came on in 2013. If I had been asked about numbness or weakness in my legs, I would have told Dr Stening I did not have these symptoms at this stage. I was still flexible.

119. To the best of my recollection, I was not asked any questions by Dr Stening about any pain I felt in my back. I may have demonstrated to him where the pain was using my hands.

120. I specifically recall remaining seated next to my mother in front of Dr Stening’s desk throughout that consultation. I do not have any picture in my head of being asked to sit on the examination table. I do not recall Dr Stening looking at my back or touching my back.

121. I do not have an image in my mind of lying face down or face up on a bed at Dr Stening’s rooms in December 2012. I do not have any memory of getting undressed at Dr Stening’s rooms. I was not used to getting undressed in front of strangers and I was still very body conscious at that stage. I think if he had asked me to undress or adjust my clothes, I think I would have remembered this.

122. I vaguely recall Dr Stening saying words to the following effect:

(a) One solution is to try another cortisone injection. However, I doubt it will do any good as the last one did not have any lasting effect; and

(b) What is going on is a problem with the growth plates in your hip. It is a reasonably common condition and you will grow out of it as your body matures; and

(c) I will refer you for an MRI to make sure there is nothing else wrong.”

34. Ms Williams said that she was never given advice by any doctor or physiotherapist from June 2012 to June 2013 that she had spondylosis or spondylolisthesis. Ms Williams did not refer in her statements to her original consultation with Dr Stening on 21 November 2009.

Cross-examination of Hailee Williams

35. Hailee Williams agreed, somewhat uncontroversially, that she did not have a perfect recollection of what was said or done at consultations back in 2011 and 2012. She agreed that in the period leading up to her surgery on 13 June 2013 that where there was an issue with her back at the time that was concerning her, she would have reported it to medical practitioners. She did not agree that in the period from March until June 2012 her hip pain was the more constant and serious problem for her or that back pain was only an occasional problem. She said, “I thought it was a constant problem”. However, Ms Williams went on to say this:

“A. During the time from March, I do know that my left hip pain was worse, was a lot worse and very constant; and then when my right hip and back started to hurt, they were not as bad as my hip pain - as my left hip from March/April. And I'd say, yeah, that that's my answer.

Q. So, just dealing with that answer. So, in the period March to June 2012, left hip pain was worse?

A. Yes.

Q. And it was constant?

A. Yes.

Q. Do you say that during that period you also had right hip pain?

A. Towards more towards the middle of the year, yes.

Q. So, closer to around June 2012?

A. Yes.

Q. When do you say the back pain began?

A. My left hip started in June or the one before June; in the end of May.”

36. After she started at Kindalin, Ms Williams said that her back pain was not intermittent but constant and “showed up constantly after activity”. She said “it wasn’t constant but would be flared up with my work”. Certain activities caused it to be worse. Ms Williams said this about what she told Dr Mutasim:

“Q.  I understand that and I don't in any way challenge you on that.  But what I'm asking about is what you told Dr Mutasim on 21 May 2012.  Can you recall the detail of that now or now?

A.  I believe I said this before, when I said I was having pain from work; it was making it worse; and my hips and back were bothering me.  But I do not recall the exact words that I used, or I don't think I can give you much more on that appointment.”

37. She was then asked about her meeting with Dr Stening:

“Q. What I’m suggesting is that you did not, neither you nor your mother said anything about back pain when Dr Stening asked that initial question and one of you, either you or your mother volunteered information about what your problem was?

A. No.

Q. You disagree?

A. Yes, I disagree.”

38. Her evidence continued:

“Q. I’m just asking now specifically about the back so I don’t need the full account of everything but what’s your best recollection, first of all, whether it was you or your mother, you say it was your mother speaking?

A. Yes, I have said that mum was speaking.

Q. And what do you recall her saying to Dr Stening at the beginning of this consultation about your back?

A. About the pain I was having in my hips and my back from working, she explained all of that.

Q. Try and use the words, rather than summarising that she explained all of that about the pain in your hips and back?

A. I do not know the words that she used.

Q. It’s possible, isn’t it, that what she described at the time, was that in your last six months that you’d begun working as a childcare worker you’d developed recurrent pain around both hips and it was worse on the left than the right and nothing more than that?

A. No.”

39. Hailee Williams agreed that on 20 June 2012 Dr Stening said something to the effect of getting up and down from a squatting position and lifting kids was likely to aggravate her problem and that for the time being she should try to avoid those activities. Her evidence continued:

“Q. What you said yesterday was that your pain was there from early 2012 but it got worse in March 2012 when you went to full time hours at Kindalin, do you recall telling us that?

A. Yes.

Q. And that you said in about May 2012 you had right hip pain and back pain starting, do you recall saying that?

A. Yes.

Q. Thinking about the second half of 2012 from about July to the end of the year, do you say that by then your back pain was constant?

A. Yes.

Q. Do you say that it had become much worse?

A. Yes.

Q. Do you say it was interfering with your activities, that is, in daily life and at work regularly?

A. Yes, it was.

Q. You indicated yesterday that your back pain, in the early part of 2012, was not constant, that is, it was worse with some activity but then was not so bad, do you recall giving that evidence?

A. Yes.

Q. So that do you say in the second half of 2012, that changed?

A. Yes.”

40. On 2 July 2012, Dr Stening gave Ms Williams a medical certificate placing restrictions upon her duties at work for three months. By October 2012, it had expired. However, by then her back pain was much worse, much more severe and much more constant. It became worse and worse in the second half of 2012.

41. Ms Williams saw Dr Stening for the second time on 3 December 2012. She said that she told Dr Stening that her bilateral hip pain and her back pain had got worse and was now constant and severe. She disagreed with the suggestion that neither she nor her mother said anything at all about back pain. She agreed that Dr Stening said words to the effect of “while I'm hoping you will grow out of your pain and it's due to apophysitis, I recommend you have an MRI scan of the left hip to see if there's something else going on to cause the pain”.

Meigan Williams

42. Meigan Williams is Hailee Williams’ mother. She gave evidence in the form of a statement dated 2 August 2019. Meigan Williams indicated that she had been shown the clinical records of the medical practitioners she has attended with her daughter about her hip and back pain and the clinical records of hospitals in which she has been treated in order to refresh her memory about dates and times of various relevant consultations.

43. Meigan Williams said that Hailee Williams started complaining of hip pain in 2009. She recalled taking her daughter to a general practitioner and being given a referral to Dr Stening. Meigan Williams said that she recalled Dr Stening “making a diagnosis” but does not remember what it was. She recalled that Dr Stening did not offer any treatments. Meigan Williams recalled that Hailee Williams complained to her of lower back ache towards the end of 2011 following her discharge from hospital for an unrelated condition. Sometime later she consulted Dr Mutasim who referred Hailee to Dr Stening for tenderness over her hip and the lumbar L4-5 region.

44. Hailee Williams was X-rayed at the Castlereagh Imaging at Penrith on 24 May 2012. They both attended Dr Stening’s rooms on 20 June 2012 and took the X-ray with them. Meigan Williams said this:

“68. Upon entering his rooms, I proceeded to describe why Hailee and I were there.

69. I did most of the talking. There was a conversation to the following effect:

‘Dr Stening: What seems to be the trouble?

Me: Hailee has had niggling hip and back pains off and on for a couple of years. You saw her a while back and said it was growth plates. I had her at a podiatrist and she wears orthotics. But she has started working in childcare and she was okay for a month or so but now her back and hip is getting worse.

Dr Stening: What seems to cause it?

Hailee:   I get more hip pain and back discomfort when lifting the children and buckets of water. It gets worse when lifting a lot.

Dr Stening: Where is the pain?’

70. I think he asked me about her job in childcare. I do not recall much about this topic.

71. I vaguely recall him saying something like ‘lifting the children wouldn’t be helping’. It is my recollection today that at no time during that consultation did Dr Stening physically examine Hailee. I have no image in my head of him doing so.

72. I recall observing Hailee standing up from a sitting position in front of his desk and turning slightly towards me as I was sitting in the chair to her left. I remember her placing her hands from her navel, around the right-hand side (as I looked at her) and back behind her towards her lumbar spine and saying, ‘it hurts here and here’. To my recollection now, Dr Stening did not come around from his desk to see where Hailee was pointing. He did walk around behind her to get to the light board.

73. I handed Dr Stening the envelope containing Hailee’s 24 May 2012 X-rays. I recall he put them onto the light box which was hanging on a wall. I recall him looking at each X-ray for a short time and moving on to the next one. I recall him pointing to one X-ray with his finger and saying something like, ‘She is having trouble here in the growth plate’. At this time, he was point at something on the right-hand side of the picture on the light box. He then pointed to something on the left-hand side of the picture on the light box and said, ‘If you compare both sides you can see where the difficulty is’. I could not work out the significance of what he was point at and I was sitting some distance away, but I took his word for it.

74. I do not have a recollection of seeing him reading an X-ray report, but he may have.

75. He also said:

‘Dr Stening: This is a very common thing for girls (or children – I cannot now recall which word he used) of Hailee’s age and it should right itself. It might take six months or so.

Meigan: What else can be done? Hailee’s in a lot of pain. Is there anything that can be done?

Dr Stening: We could try giving her a cortisone injection into her hip. This is a steroid and it can be effective in many cases, but we cannot guarantee that it will work.’

76. I recall asking Dr Stening many questions about this condition, the level of pain she was experiencing and the impact on her and what can be done. Dr Stening said ‘it should right itself and would take time, perhaps up to six months.

45. About a week later, Hailee Williams and her mother returned to Dr Stening for the cortisone injection into Hailee’s “front left hip”. They were told by Dr Stening to come back in six months if the pain persists.

46. Hailee Williams and her mother returned to see Dr Stening on 3 December 2012. Meigan Williams said this:

“97. I recall taking Hailee to the rooms of Dr Stening on 3 December 2012. I do not precisely recall the time of that appointment. I recall being present during that consultation and again I did most of the talking. I vaguely recall a discussion to the following effect:

‘Dr Stening: How have you been getting on?

Hailee:   The injection was okay and helped the hip pain for a couple of weeks. I have had trouble with the lifting at work.

Me: What options do we have?

Dr Stening: You could have another cortisone injection but as it did not provide lasting relief the first time, you are unlikely to get any benefit from a second treatment.

Me: If a cortisone injection was not a viable option, what can be done to help Hailee’s pain, as it was getting worse and it was affecting her life and work?

Dr Stening: The X-rays did not show any abnormalities and Hailee’s problems are likely to be her growth plates. This will resolve as she matures. Time will resolve the issue but in the interim Hailee should avoid, as much is possible, bending and lifting activities. Her job was not helping her.’

98. To the best of my recollection now, at no time, during that consultation did Dr Stening inspect and/or examine Hailee’s hips, pelvis or back. To my recollection, she was not directed onto the examination table. It is my strong recollection she remained seated, with me, in front of Dr Stening’s desk.

99. I recall again asking Dr Stening many questions about what else we could do for Hailee, what other options she had. I was looking for answers and asking a lot of questions. I felt I was not getting answers to my questions.

‘Dr Stening: Physiotherapy could help, and I will refer you. We will get an MRI done and see what that shows up just to be sure’.”

47. In about mid-December 2012, Meigan Williams contacted Dr Stening’s rooms regarding Hailee’s MRI results. Dr Stening called back later. She described the conversation as follows:

“107.   A conversation to the following effect (after exchanging pleasantries):

‘Dr Stening: I’ve looked at the MR scan and there are no abnormalities revealed. So there is nothing structurally wrong and Hailee just has to wait for symptoms to resolve as she matures.’

108. I recall being surprised at the news. I was sure he would have found something wrong that would explain Hailee’s symptoms. We went on:

‘Me: Are you really sure there’s nothing there? It doesn’t make sense. Hailee is in real pain and it seems to be getting worse.

Dr Stening: Yes. The MRI is normal. So is the X-ray. Her pain is likely caused by the growth plates, which is very common. It will sort itself out. Sometimes it takes longer than other times, but we’ll just have to wait’.”

48. Meigan Williams said that Dr Stening gave her no further advice about Hailee’s condition or signs of deterioration. Meigan Williams did not see Dr Stening again in December 2012 and had no further contact with him until February 2013.

49. Meigan Williams said that on 13 June 2013, Dr Cree told her that Hailee’s condition was “really a medical emergency” and that she could be rendered a paraplegic “within a matter of weeks” if she were not operated upon soon. Hailee was shortly thereafter taken to theatre for a lumbar spinal fusion and bone graft.

Cross-examination of Meigan Williams

50. Meigan Williams was asked about her daughter’s consultation with Dr Mutasim. She was not prepared to accept the possibility that when she saw him with Hailee initially and described why they were there that she mentioned only hip pain but not back pain. Nor was she prepared to accept the possibility that in that consultation on 21 May 2012, back pain only came up for discussion at the end of the consultation after the examination of Hailee had been performed. She had it firmly in her mind at that time that Hailee had problems in her hips as well as her back.

51. With reference to the consultation with Dr Stening on 20 June 2012, Meigan Williams disagreed with the proposition that she did not describe to Dr Stening that Hailee was having any back pain. She reaffirmed the version of what occurred as described by her in paragraph 69 of her statement. She also disagreed that Dr Stening said that it looked like her daughter had suffered a recurrence of the condition that she had back in 2009. Meigan Williams recalled discussion about a cortisone injection but “absolutely disagreed” with the suggestion that Dr Stening said that getting up and down from the squatting position and lifting kids was likely to aggravate Hailee’s problem or for the time being she should try to avoid those activities.

52. Meigan Williams also disagreed that during the second half of 2012 her daughter’s main problem was her hip. Her hip pain was a constant problem and her back pain was intermittent. She said, “Hailee had good and bad days during that period of time, with both her hip and her back pain.” She disagreed that Hailee’s back was not a significant problem for her in the second half of 2012.

50. Paragraph 64 of her statement is in the following terms:

“64. I recall on 24 May 2012 I took Hailee to Castlereagh Imaging in Penrith for her X-rays. I always read the X-ray referral and I have little doubt that I read it on this occasion. I gave the referral to the receptionist on arrival.”

54. Meigan Williams was taken to that paragraph in cross-examination. Her evidence was as follows:

“Q. Do you see in that you say in the second sentence, I always read the X-ray referral and I have little doubt that I read it on this occasion?

A. Yes.

Q. That's a reference to the X-ray that Hailee was sent for in May 2012 by Dr Mutasim?

A. Yes.

Q. In the same way, did you read the referral when she was sent for the MRI in December 2012?

A. I don't recall doing that.

Q. It's your practice to do it isn't it?

A. It is my practice to read the reports that are put in the MRIs and in the X- rays, that is my definite practice.

Q. Paragraph 64 doesn't refer to X-ray or radiology reports, it refers to referrals, do you agree with that?

A. Yes.

Q. If that's correct what's stated there, or did you intend in paragraph 64 to refer to the X-ray reports?

A. I was referring to the X-ray reports.

Q. We should correct the reference to referral to indicate that you meant X-ray reports?

A. Yes.

Q. You don't have a practice of reading referrals for imaging?

A. No.

Q. In this case though, had you, by the time you spoke to Dr Stening in December, had you actually received the report or not?

A. Which report are you referring to?

Q. Sorry, that was unclear. The report I'm referring is the MRI scan report for Hailee?

A. The MRI report from my recollection was around 17 December when I had a phone call with Dr Stening.

Q. By the time you had the discussion with him where he told you about the results, did you actually have the report?

A. No, I don't believe I had the report.

HIS HONOUR: Could I just interrupt?

Q. At paragraph 64 of your first statement in the second sentence, you say I always read the X-ray referral and you go onto say, I gave the referral to the receptionist on arrival. Do I understand that following some questions from a few moments ago, that in the second sentence you want to change that to I always read the X-ray report?

A. May I just clarify that paragraph 64 refers to 24 May 2012? I thought we were discussing December 2012.

Q. All I wanted to know was, at paragraph 64, I agree you've isolated it in time in May 2012, I may have misunderstood but I thought from questions from Mr Downing you wanted to change the word referral in the second sentence to report? Did I understand that correctly?

A. Yes.

Q. Perhaps not a matter for me at this stage, but that doesn't seem to make any sense because you were on your way to the Castle Ray Imaging and would not at that stage have had a report, but merely a referral would you not?

A. Yes, in that context that's correct.

Q. When you say in that context, the change of the word referral to report, I have to indicate to the parties at paragraph 64 has led me to be confused, but I'm not running the evidence in this case and I'll simply note that that has confused me.”

55. The fact that the referral dealt with Hailee Williams’ hips and not her back was then further explored:

“Q. You understood that was an MRI had been done confined to the left hip, correct?

A. Yes.

Q. Your concern at that point was that Hailee had significant problems not just in her left hip, but in her back?

A. Yes.

Q. That's your evidence isn't it?

A. Yes.

Q. Having been told now that the imaging that had been done of the left hip was clear, would you not have raised with Dr Stening your concern at the imaging of the back?

A. I relied on Dr Stening of his expertise and his direction in Hailee's medical treatment and he assured us that it was the growth plates and that it would heal in time.

Q. Do you think it's possible that in fact there was no discussion between you, Hailee and Dr Stening in December 2012 about the back?

A. No.”

56. Finally, on this topic, Meigan Williams gave this evidence:

“Q. According to what Hailee was telling you, by December 2012, was the back pain as big a problem as the hip pain?

A. Yes.

Q. Surely, if that were the case, that is, if the back pain had been there for some time, that it was getting more constant, more severe, and it was as big a problem as the hip pain, you would have raised with Dr Stening at this point, your desire that there be some investigation of the back.

A. As I said, I relied on Dr Stening to direct Hailee's medical treatment. When we raised the back pain with Dr Stening, we were told it was referred pain and that it was the hips and the growth plates. And that over time, they would heal.

Q. What I'm suggesting to you is that it was only in the early months of 2013 that the back pain became a significant problem for Hailee, do you agree or disagree with that?

A. I disagree with that.”

Dr Fraser

57. At the commencement of the hearing, Dr Fraser made certain admissions. These were described in detail in Mr Downing’s opening remarks. Some of what he said was to the following effect.

58. Even though the X-rays that Dr Fraser was asked to interpret and report on were not X-rays of Hailee Williams’ lumbosacral spine, but were X-rays of her hips and pelvis, he accepts serendipitously that they revealed a right sided pars defect that he failed to see or to report upon. Dr Fraser accepts that that amounts to a breach of duty: it should have been identified at the time and further X-rays of the lumbosacral spine should have been recommended. Dr Mutasim took a history from Hailee Williams on 21 May 2012 of hip pain as well as back pain but in his referral letter to Dr Fraser did not seek imaging of her lumbosacral spine. His request was limited to her hips and pelvis. Dr Fraser’s report to Dr Mutasim dated 24 May 2012 was as follows:

“PELVIS AND HIPS

Findings: No abnormality was seen in the bony pelvis. The geometry of both hip joints is normal with no evidence of an arthropathy or other bony abnormality. There is no periarticular calcification. The appearance of the symphysis is normal and the sacroiliac joints normal.”

59. Nor did Dr Mutasim make any reference at all to back pain in the letter that was sent to Dr Stening. There is no agreement about Hailee Williams’ precise presentation to Dr Mutasim or whether it was limited to her hips.

60. Dr Fraser also accepts, consistently with his admission, that if further specific X-ray imaging of the lumbosacral spine had been done, it would have led, in either June or December 2012, to a diagnosis of spondylolisthesis. There is considerable disagreement among the experts as to the precise grade of that spondylolisthesis, in part because there was no lumbosacral X-ray, CT scan or MRI performed at the time.

61. Dr Fraser’s concession was appropriately in line with his evidentiary statement dated 5 August 2019, portion of which was as follows:

“25 I am aware that in this matter, the plaintiff has served expert reports from Dr John Earwaker, radiologist, in which he reviewed the 24 May 2012 x-ray images of the pelvis and hips and reported on them. I am aware that Dr Earwaker identified a right-sided pars defect in the oblique projection of his right hip) and a hypoplastic bifid neural arch of what he took to be the fifth lumbar segment. Further, I am aware that Dr Earwaker has indicated his opinion that I departed from competent practice as expected by peer professionals in 2012 in not identifying and reporting the right-sided pars defect and the hypoplastic bifid neural arch.

26 As I have stated above, it is correct that when I reviewed the 24 May 2012 x-ray images, I did not identify the right-sided pars defect (which can be seen on the edge of the lateral/oblique projection of the right hip). As per my usual practice, if I had identified it, I would have mentioned it in my report.

27 While I can’t now recall my precise thought process in reviewing the images and preparing my report, as per my usual practice, I would have been aware of the clinical history of pain in both hips and the lower lumbar region. However, as I have stated above, I would also have been aware that notwithstanding that history, the referring GB, Dr Mutasim, sought imaging with ultrasound and x-rays of the hips and pelvis only, not of the lumbar spine. It seems likely to me that because Dr Mutasim only wanted imaging done of the hips and pelvis, that was my primary focus in assessing the x-ray films (with the process of assessing the films being two-staged, as I have described above.

28 If I had identified the right-sided pars defect on 24 May 2012 then, as per my usual practice, I would have made a recommendation for further x-ray imaging of the lumbar spine and possibly, a CT scan of the lumbar spine.”

62. It was in these circumstances that Dr Fraser’s cross-examination was limited to the matters that are now considered.

Cross-examination of Dr Fraser

63. Dr Fraser gave the following evidence:

“Q. Is it fair to say that you made a decision, although there'd been a clinical history of pain in the lower lumbar, you made a decision not to X-ray that part of the body?

A. There was no request to X-ray the lumbar spine.

Q. That might be so, but can you say today whether you turned your mind to the clinical history of pain in the lumbar spine?

A. I did not, as the request was for X-ray and ultrasound of the hips, that's what was done. The lower lumbar is second line and certainly would have been very much the second or third raised point to attend to. If I may say, had Dr Mutasim wanted the lumbar spine X-ray, he would have asked for it, he didn't

Q. Did you in your position as a radiologist have a view given as there was a history of pain in the lumbar spine, that it might be desirable to take an X-ray of the lumbar spine?

A. No, lumbar pain is a very common issue, it was not requested, it was not done.”

64. The cross-examination of Dr Fraser was necessarily limited having regard to his admission of breach of duty and his associated acceptance that if further specific X-ray imaging of the lumbosacral spine had been done, it would have led, in either June or December 2012, to a diagnosis of spondylolisthesis.

Conclusions concerning Dr Fraser’s liability

65. Dr Fraser’s failure to report the existence of a pars defect in his 24 May 2012 report misled Dr Stening. His evidence about this, effectively mirrored in interrogatories administered by Hailee Williams and answered by Dr Stening on 31 October 2016, is set forth at paragraph 139 of his evidentiary statement as follows:

“139. If any of the imaging of Ms Williams’ lumbo-sacral spine identified a grade I-III spondylolisthesis, then as per my usual practice, I would have taken the following steps:

(i) told Ms Williams that she would need to return for further review and clinical assessment in 3 months’ time and then at 3 monthly intervals;

(ii) told Ms Williams that she would need to have serial X-rays at 3 monthly intervals to look for evidence of any progression;

(iii) told Ms Williams that she should not engage in any high impact sports or activities;

(iv) told Ms Williams that she should return sooner than 3 monthly if she developed symptoms in the lower limbs like weakness, numbness, tingling or altered sensation, including urinary or faecal incontinence. Further, that it was extremely important that she come back as soon as possible in those circumstances because she might need urgent treatment;

(v) told Ms Williams that she needed to see a paediatric spinal sub-specialist for opinion and further management and provided her with a referral to a paediatric spinal sub-specialist.”

66. In this respect, Hailee Williams relies upon Dr Stening’s evidence in support of her case against Dr Fraser to establish that Dr Fraser’s admitted breach caused her loss as the result of the way that it misled her then treating orthopaedic specialist. Dr Stening was understandably not cross-examined to suggest that his evidence in this regard was subject to challenge. Indeed, as Hailee Williams’ submissions emphasise, Dr Stening went further in his evidence to indicate that he would also have recommended core strengthening exercises, a suggestion that accords with other expert evidence in these proceedings.

67. Dr Stening relied on the X-ray report from Dr Fraser and, although Dr Stening subsequently provided Hailee Williams with a medical certificate for restricted work duties, he did not immediately proceed to arrange for or offer alternative conservative, non-operative clinical management in the way that the experts agree would have been appropriate in mid-2012. Hailee Williams was thereafter left in a vulnerable position with an undiagnosed spondylosis or spondylolisthesis that exposed her to a risk of harm if left untreated. Her case against Dr Fraser is that if he had identified and reported on the pars defect in June 2012, that would have led to further inquiries which, in turn, would have revealed the state of Hailee Williams’ spondylolisthesis.

68. Dr Fraser denied that his alleged negligence was a necessary condition of the occurrence of Hailee Williams’ harm so that nothing he did or failed to do caused her loss as a matter of fact: s 5D(1)(a) of the Civil Liability Act 2002. Moreover, he denied pursuant to s 5D(1)(b) of the Act that it is appropriate for the scope of his liability to extend to the harm which Hailee Williams alleges she suffered.

69. Breach of duty having been admitted by Dr Fraser, it is convenient to defer consideration of the s 5D issues that relate to him, and the question of damages, if relevant, to later in these reasons.

Dr Stening

70. A significant contest between Hailee Williams and Dr Stening is the question of whether Dr Stening was ever provided with a history from Ms Williams’ general practitioner Dr Mutasim that included a reference to low back pain. An associated, and even more significant, contest concerns whether Hailee Williams or her mother ever complained of back pain to him or otherwise drew it to his attention during any consultations with him.

71. Dr Mutasim referred Hailee Williams to Dr Stening on 3 June 2012. His letter of that date to Dr Stening relevantly says this:

“Thank you for seeing Miss Hailee Williams aged 18 yrs for opinion and continuing management.

Presenting Problem: Pain in the left ASIS for last 2 months.

Has had similar pain in 2009.”

72. Following his consultation with Hailee Williams on 20 June 2012, Dr Stening wrote to Dr Mutasim as follows:

“Thank you for your referral. Hailee’s 18 years of age now. The last 6 months she has started working as a childcare worker and this has corresponded to developing recurrent pain around the anterior aspect of both hips, left worse than right.

Several years ago she consulted with me and had similar symptoms and a diagnosis of iliac apophysitis.

On examination she had pinpoint tenderness over the anterior superior iliac spine, left greater than right. There was also discomfort on hyperextension of the hip and on Ely test.

IMPRESSION

It looks as though she’s developed recurrence of this iliac apophysitis. I’ve recommended that she have injections of cortisone into the area and then a period of rest for at least 3 weeks afterwards, abstaining from sports etc. It also would be wise for her to move from her current duties to one where she doesn’t need to repetitively lift children as this may have contributed to the onset of her symptoms.

I’ll keep you informed of further developments as they transpire.”

73. The terms of that letter significantly framed Dr Stening’s evidence-in-chief. However, his cross-examination was largely informed by a different version of the facts upon which Hailee Williams relies.

74. Dr Stening administered a cortisone injection two days later. He reported to Dr Mutasim by letter dated 22 June 2012 as follows:

“I injected Hailee’s anterior superior iliac spine region with two ampules of Celestone Chronodose and local anaesthetic under sterile technique today.

Hopefully this will alleviate her symptoms satisfactorily over the next week or so.

I’ll see her to inject the other side if she gets a good response from this injection today.”

75. Dr Stening’s statements of evidence are dated 15 August 2019 and 29 July 2019. It becomes necessary, despite its length, to reproduce a large portion of his first statement, relevantly as follows:

“2009

14 Hailee Williams was first referred to me by her general practitioner, Dr Amin Mutasim, via a letter dated 21 November 2009. That letter is located at page 45 of my patient records for Hailee Williams.

15 I first saw Hailee Williams on 21 December 2009. I can’t now recall if she attended alone or with her mother. At that time, as per the usual practice in my rooms, my receptionist would have given Hailee Williams and/or her mother a Patient Information Sheet to complete. A copy of the Patient Information Sheet for Hailee Williams is located at page 44 of my patient records for her.

16 As per my usual practice when seeing a new patient, when Hailee Williams first attended on me on 21 December 2009, I would have read the referral letter I had received from Dr Mutasim, taken a history from Ms Williams, conducted a physical examination and reviewed any imaging that was available to me. I may also have obtained some history from her mother if she was present. I would also, as per my usual practice, have concluded the consultation by discussing with Ms Williams (and her mother, if she was present) my views as to her diagnosis and my recommendations as to management and treatment.

17 My letter to Dr Mutasim dated 21 December 2009 (which is located at page 43 of my patient records for Hailee Williams) contains a summary of my interpretation of Dr Mutasim’s referral letter, the history I obtained in respect of Hailee Williams, the physical examination I conducted, my review of Hailee Williams’ imaging (which I assume she brought with her on 21 December 2009) and my views as to diagnosis and management/treatment.

18. Ms Williams’ presentation on 21 December 2009 was with pain in the left anterior superior iliac spine (ASIS), though it is evident from my letter of 21 December 2009 that the history I got on that day was that while the symptoms had developed about 6 months’ ago, just before Ms Williams ran in the City to Surf, they had completely resolved while Ms Williams was resting over the last 6 to 8 weeks.

19 In layman’s terms, the ASIS is the anterior superior iliac spine that is located at the anterior or front aspect of the hip.

20 Where a teenage patient presents with ASIS pain, I have a usual practice in terms of the examination I perform. I have no doubt that during the 21 December 2009 consultation with Ms Williams, I examined her as per my usual practice.

21 First, I would have observed Ms Williams walking informally, as she came into the consultation room, to see if I could identify any abnormality. On occasions, if I don’t think I get enough information through that informal observation, I ask the patient to walk around the room for me, so that I can formally observe the patient’s gait. I can’t now recall whether I requested that Ms Williams walk for me so that I could observe her gait during the 21 December 2009 consultation.

22 Secondly, where the presentation is of a teenage patient with ASIS pain, I initially have the patient lie supine on the examination bench and I palpate the pelvis by pressing over the iliac crests. That was where I understood Ms Williams had pain.

23 I then spring the pelvis, pressing down on the iliac crests and feel over the greater trochanters (where female teenage patients often have symptoms with hip pain).

24 I next move the hips around, flexing up and rotating in to look for any discomfort. I hold one leg up and then flop it out to the side while pressing down on the other leg in order to stress the sacroiliac joint.

25 Thirdly, I then turn the patient over prone in order to stretch out the front of the hips and see whether it might aggravate the patient’s pain or discomfort coming from the iliac crest. I do that by hyperextending the hip. I next perform an Ely test by flexing the knee while the patient is lying prone. The Ely test assesses for rectus femoris spasticity/tightness. In layman’s terms, the idea is to stretch the muscles arising from the anterior superior/inferior iliac spine.

26 During the Ely test, if a patient’s bottom goes up while the knee is being bent, it indicates a tight rectus femoris muscle. It can also indicate that there is irritation at the origin of the inferior iliac spine, which can be a source of apophysitis.

27 It is evident from my letter of 21 December 2009 that I found nothing abnormal on examination, with no specific pain response. Further, it is evident from my letter of 21 December 2009 that I concluded that Ms Williams was suffering from a traction-type apophysitis of the ilio-tibial band/sartorius origin.

28 As per the letter of 21 December 2009, and my usual practice, I would have explained to Ms Williams, and her mother if present, my diagnosis in layman’s terms. While I can’t now recall the precise words I used, I would have said words to the following effect: -

‘Hailee has pain arising from where the muscles arise from the anterior superior iliac spine, that is the bony prominence at the front of the hip. At her age there is a growth plate in this area that can become irritable. We call this apophysitis. Children generally grow out of this as the growth plate fuses.’

29 I did not arrange any follow up with Ms Williams after 21 December 2009.

20 June 2012

30 By a letter dated 3 June 2012, Dr Mutasim referred Ms Williams back to me for further opinion and management. A copy of Dr Mutasim’s 3 June 2012 letter is located at page 40-41 of my patient records for Ms Williams.

31 Following on from the 3 June 2012 referral by Dr Mutasim, I first saw Ms Williams on 20 June 2012. A copy of my letter back to Dr Mutasim of that date, which stands as my clinical record of the consultation, is located at page 38 of my patient records for Ms Williams.

32 I can’t now recall whether Ms Williams attended alone or whether her mother attended with her on 20 June 2012. Ms Williams was 18 years of age by that time and many patients of that age still attend with their parents or guardians.

33 By 20 June 2012, it was roughly 2½ years since I had last seen Ms Williams. Given the time period involved and the fact that it was a new referral, I would have treated the 20 June 2012 appointment as an initial review and thus allocated 20 minutes for it. I can’t now recall precisely how long the appointment ran for.

34 As per my usual practice, when I saw Ms Williams on 20 June 2012, I would have read the referral letter of 3 June 2012 from Dr Mutasim. I would have seen from it that he described her presenting problem as pain in the left ASIS for the last 2 months and that it was similar pain to what she had presented within 2009.

35 On seeing that reference to Ms Williams’ 2009 presentation, as per my usual practice, I would have read through my letter of 21 December 2009, in order to refresh my memory as to the nature of Ms Williams’ presentation at that time.

36 As per my usual practice, I would have taken a history from Ms Williams on 20 June 2012. That is, having seen that the referral from Dr Mutasim was for pain in the left ASIS for the last 2 months, I would have asked her questions to the effect of the following:

‘What symptoms do you have? Is the pain radiating anywhere? What relieves it and what aggravates it?’

37 The history I obtained is as set out in the first paragraph of my letter of 20 June 2012. I can’t now recall whether that came from Ms Williams or her mother, if she was present.

38 Specifically, the history I obtained was that over the last 6 months, after Ms Williams had begun working as a child care worker, she had developed recurrent pain around the front of both hips, with the pain on the left worse than the right.

39 I am aware that in her statement, Ms Williams says certain things about what occurred at the 20 June 2012 consultation. At paragraphs 84-85 of Ms Williams’ statement, she says that her mother was present on 20 June 2012 and that her mother did most of the talking to me. Ms Williams says that she recalls not speaking a lot to me.

40 As I have stated above, I can’t now recall whether Ms Williams’ mother was present on 20 June 2012. She may well have been. I also can’t now recall how much Ms Williams’ mother provided the history to me, as opposed to it coming from Ms Williams directly.

41 On 20 June 2012, because Ms Williams was presenting with pain at the front of the hips (bilateral ASIS pain) I would have examined her, as per my usual practice, as I have described it at paragraphs 20-26 above.

42 As per my 20 June 2012 letter, when I examined Ms Williams in 2012, I found that she had pinpoint tenderness over the bilateral ASIS, with the tenderness greater on the left than the right. That indicates that when I palpated over the ASIS, she reported pain on both sides, though the pain was worse on the left than the right.

43 Further, my 20 June 2012 letter indicates that when I examined Ms Williams prone, she described discomfort both when I hyperextended her hip and when I performed the Ely test. That discomfort is suggestive that the sartorious or quadriceps muscle is being stretched (and thus seemed to be the cause of Ms Williams’ pain).

44 I am aware that in her statement, Ms Williams says certain things about the examination I performed on 20 June 2012. In paragraph 91, Ms Williams describes me examining her while she was lying supine. As I have indicated above, I would have examined her lying supine as part of my usual practice. However, Ms Williams further states that she recalls lying on her back and me raising her legs up and down while they were straight.

45 I don’t now recall the fine details of the examination I performed on 20 June 2012, but doing straight leg raising is not part of my usual practice when it comes to examining a teenage patient presenting with ASIS pain. However, it is possible I had Ms Williams, while lying supine, lift her legs up while I pushed down against them. I sometimes do that with patients presenting with ASIS pain when I am concerned about hip pathology. If there is pain on straight leg raising while I push down, it can indicate that the pain is emanating from the hip joint or anterior to it.

46 I am also aware that in paragraph 92, Ms Williams says she has no picture in her mind of lying on her front (prone) during the appointment. As I have indicated above, it is my usual practice to examine the patient lying prone where a teenage patient presents with ASIS pain and my 20 June 2012 letter to Dr Mutasim confirms that I did so with Ms Williams, in that I describe hyperextension of the hip and performing the Ely test.

47 Ms Williams also says in paragraph 92 of her statement that she doesn’t have any recollection of me asking her to adjust her clothes or of removing her clothes or shoes. Ms Williams was a female patient of 18 years of age as at 20 June 2012. With such patients, I try to be conscious of their sensitivities about disrobing and I often don’t ask them to totally disrobe or even partially disrobe, unless I feel it is necessary.

48 Where I examine a patient as I have described examining Ms Williams above, I would not need to see the skin, so I may well not have asked her to remove her clothes or adjust her clothes.

49 I am aware that Ms Williams’ mother Meigan Williams says in her statement, at paragraph 71, that her recollection is that I did not perform a physical examination of Hailee on 20 June 2012. That is incorrect. I examined Ms Williams as I have described above and I referred to that examination in my letter to Dr Mutasim of 20 June 2012.

50 On the basis of my review of Dr Mutasim’s 3 June 2012 referral letter, my review of my earlier 21 December 2009 letter to Dr Mutasim about Ms Williams, the history I obtained from Ms Williams or about her on 20 June 2012 and my examination of her, my working diagnosis on 20 June 2012 was a recurrence of Ms Williams’ iliac apophysitis. In accordance with my usual practice, my next step on 20 June 2012 was to review Ms Williams’ imaging.

51 I can’t now recall specifying reviewing Ms Williams’ imaging on 20 June 2012. Further, my letter of 20 June 2012 does not specifically refer to the imaging. However, I am aware that Ms Williams (at paragraph 87 of her statement) says that she has a mental picture of handing me a large envelope from the radiologist, which contained x-ray films and what she understood to be an x-ray report. While I don’t have a specific recollection of Ms Williams handing me the imaging, patients do normally bring their imaging to consultations with me.

52 I am also aware that contained within my patient records for Ms Williams are copies of Dr Fraser’s report on the x-ray of the pelvis and hips dated 24 May 2012 (at page 42 of my patient records for Ms Williams) and a version of Dr Mutasim’s referral letter of 3 June 2012 which includes as part of it Dr Fraser’s report on the x-ray of the pelvis and hips of 24 May 2012 and his report on the ultrasound of both hips of 31 May 2012 (located at pages 40-41 of the patient records for Ms Williams).

53 That version of the referral letter from Dr Mutasim, containing Dr Fraser’s reports, has a fax header indicating that it was faxed from the Richmond Marketplace Medical Centre at 12.26pm on 20 June 2012. While I can’t now recall the specific circumstances of the fax coming in, it seems very likely that I had the imaging reports from Dr Fraser when I saw Ms Williams on 20 June 2012. As per my usual practice, I think it likely I reviewed the x-ray images of Ms Williams’ 24 May 2012 x-rays of the pelvis and hips and also read the report from Dr Fraser in respect of those x-rays and also the 31 May 2012 ultrasound of the hips.

54 I would not, as per my usual practice, have reviewed the ultrasound films of Ms Williams’ hips. My practice has always been that I don’t look at ultrasound imaging, and instead rely on the radiologist’s report, because my view is that to be clinically meaningful, you need to review the ultrasound in real time, rather than looking at static images.

55 While I can’t now recall my specific thought process on reviewing the x-ray films and Dr Fraser’s report on the x-ray films and ultrasound films, it is evident from my 20 June 2012 letter that I did not see anything that altered my working diagnosis of bilateral iliac apophysitis. If I had seen some particular abnormality on the x-ray images, particularly something that suggested a different diagnosis, I would have referred to it in my letter to Dr Mutasim of 20 June 2012.

56 More particularly, I did not identify a pars defect or any other defect of the spine on my review of the x-ray images.

57 I cannot now recall whether I identified a spina bifida occulta on reviewing the x-ray films on 20 June 2012. While my letter to Dr Mutasim of 20 June 2012 does not refer to a spina bifida occulta, it is unlikely I would have referred to the spina bifida occulta in the letter even if I saw it on my review of the x-rays. That is because my usual practice at the time, in reporting to a referring doctor regarding a patient presenting as Ms Williams did, was to regard a spina bifida occulta as an incidental finding.

58 I am aware that Ms Williams (at paragraph 87 of her statement) says that she has a recollection of me reviewing what she understood to be the x-ray report on 20 June 2012, though she has no recollection of me looking at the x-ray films on a light box. On the other hand, Meigan Williams, say that she recalls me looking at the x-rays on a light box (at paragraph 73 of her statement).

59 I have a light box in each of my consultation rooms. My usual practice is that wherever x-ray films are available, I review them on the light box. Consequently, on the assumption that Ms Williams on the assumption that Ms Williams or her mother gave me the x-ray images on 20 June 2012, I would, as per my usual practice, have reviewed them. That would have meant putting them on a light box and looking at them. I cannot think of any reason why I would not have looked at the x-ray images in Ms Williams’ case.

60 I am also aware that Ms Williams says she recalls me writing on a sheet of paper on my desk during the 20 June 2012 consultation (paragraph 87 of her statement). I refer to paragraphs 11-12 above where I have described my usual practice when it comes to dictating letters to referring doctors. I can’t now recall whether I wrote some brief handwritten notes on a blank piece of paper during the 20 June 2012 consultation. It is possible, though most often, I don’t make any handwritten notes as I dictate the letter to the referring doctor as soon as I finish the consultation. If I did make some brief handwritten notes, I would have used them as a memory aid when I dictated the letter to Dr Mutasim later on 20 June 2012 or on the following day and I would have disposed of the notes immediately after dictating the letter.

61 As per my letter of 20 June 2012, my conclusion on 20 June 2012 was that Ms Williams had developed a recurrence of iliac apophysitis, with it being bilateral in June 2012, whereas it had been left sided only in December 2009. Further, by June 2012, the iliac apophysitis was worse on the left than on the right.

62 Also, as per my 20 June 2012 letter to Dr Mutasim, I recommended to Ms Williams on that day that she undergo treatment in the form of injections of cortisone into the ASIS, followed by a period of at least 3 weeks’ rest.

63 I can’t now recall the precise words I used in discussing my diagnosis and recommendations as to treatment and management on 20 June 2012. Based on my usual practice in terms of how I speak to patients about pain related to iliac apophysitis and the contents of my letter, I would have said words to the following effect:

‘It looks like you’ve suffered a recurrence of the condition you had back in 2009. That is, you are getting pain around the area of the pelvis where the muscles arise. I think we should try some cortisone injections and we’ll start with the left hip, where you have more pain, and see how you go after that. After the injection, you’ll need to have a minimum 3 weeks of rest, where you don’t do any strenuous activities like sports. I am hopeful that the pain will settle over time. If the pain becomes more constant, if the type of pain changes or if you experience pain at night, you should come back and see me.’

64 I am aware of what Ms Williams says I advised her on 20 June 2012. In relation to what she asserts in paragraph 93 of her statement, while I can’t recall the precise words I used, I may possibly have said words to that effect.

65 In relation to what Ms Williams says I discussed with her mother about cortisone injections in paragraph 94 of her statement, I can’t now recall the precise words used, but I may well have said words to the effect of those attributed to me.

66 I am aware that in her statement (at paragraph 100) Ms Williams says that I definitely did not say anything to her in June 2012 about not going to work or being on specific restricted duties and limited lifting tolerances. More particularly, I am aware that Ms Williams says that she has recently seen my letter to Dr Mutasim of 20 June 2012 and denies that I gave her advice about avoiding work or changing jobs, as per the last paragraph of the letter.

67 Based on the contents of my letter of 20 June 2012, the diagnosis I had arrived at of iliac apophysitis, the recommendation I made of cortisone injections and my usual practice in terms of how I speak to patients about pain related to iliac apophysitis, I think it very likely I said to Ms Williams words to the following effect:

‘Getting up and down from the squatting position and lifting kids is likely to aggravate your problem. For the time being, you should try to avoid those activities.’

68 I can’t now recall whether I said anything further specifically about changing positions or her work duties long term. Because my diagnosis as at 20 June 2012 was iliac apophysitis and I remained hopeful that it would resolve over time, I think it more likely I would have said something about avoiding particular activities for the time being, rather than about a long term change in position or work duties.

69 I am aware that Ms Williams alleges that by June 2012, she was experiencing pain in her back as well as pain in her hips (paragraph 77 of her statement) and further, she alleges that by June 2012, she was taking daily Voltaren and Panadol tablets at work for her back and hip pain (paragraph 83 of her statement). Further, I am aware that Ms Williams alleges that she demonstrated to me that she had pain across her lower back when she saw me on 20 June 2012 (paragraph 90 of her statement) and she also appears to raise as a possibility that she described back pain to me with words on 20 June 2012 (paragraph 90 of her statement).

70 Further, I am aware that Meigan Williams claims in her statement (at paragraph 69) that she said to me on 20 June 2012 words to the effect that Hailee had been suffering niggling hip and back pains off and on for a couple of years and that the hip and back pain was getting worse after she started working in childcare. She also claims (at paragraph 72 of her statement) that Hailee demonstrated to me where her back pain was.

71 While I can’t now recall what words Hailee Williams or Meigan Williams used on 20 June 2012 to describe Hailee’s symptoms or whether Hailee may have demonstrated the areas where she had symptoms in some manner, I am able to say what I would have done had Ms Williams or her mother described back pain or had Hailee demonstrated back pain on 20 June 2012. I had a usual practice in terms of what I would do where a teenage patient with ASIS pain complained of or demonstrated back pain, or where a parent reported back pain for the patient, which I would have followed in Ms Williams’ case.

72 First, if back pain was described or demonstrated to me, I would have referred to it in my letter back to her GP, Dr Mutasim, as the referring doctor. That is because back pain was a symptom that had not been referred to in the referral letter to me and I would thus have treated it as a new symptom. Further and significantly, back pain is a fairly unusual complaint in a teenage patient, and it can be indicative of a range of conditions, some benign and some serious. I would regard back pain in a patient presenting as Ms Williams did on 20 June 2012 as a matter of some significance and I would therefore have referred to it in the letter back to the referring doctor.

73 Secondly, if I’d received a complaint or demonstration of back pain on 20 June 2012, I would have conducted a specific examination of the whole spine. More specifically, I would have had Ms Williams stand, I would have had her adjust her clothing so that her spine was exposed, and I would have had her extend, laterally flex and rotate the lower back. I would have specifically observed her lower back looking for any evidence of muscle spasm.

74 Further, as per my usual practice, I would have palpated the lower back to see if there was a step and I would have looked at the sagittal profile of the pelvis. I would also have examined the legs looking for any evidence of tight hamstrings.

75 Further, as per my usual practice, I would have done a neurological examination of Ms Williams, in order to test the power and sensation in the legs. Depending on the results, I may have moved to do a more specialised neurological examination, checking her reflexes, performing a Babinski test and checking straight leg raising for any evidence of radiculopathy.

76 Finally, as per my usual practice, I would, as part of my examination, have checked Ms Williams’ abdominal reflexes in order to see if they were symmetrical (as asymmetrical reflexes can be a sign of occult intra-spinal pathology such as a syrinx).

77 Had Ms Williams complained of or demonstrated back pain on 20 June 2012 or had her mother described it, I would have referred in my letter back to Dr Mutasim not only to the fact of the complaint or demonstration of back pain, but to the results of my examination of her back. Even if Ms Williams’ examination of the lumber and thoracic spine was normal, I would at least have referred to the fact of the complaint of or demonstration back pain and of my examination revealing no abnormality.

Conclusion

231. In these circumstances there should be judgment for Dr Fraser.

Damages

232. It remains nevertheless to consider the quantum of the damages to which Hailee Williams would, but for my conclusions, otherwise have become entitled.

Non-economic loss

233. Hailee Williams made the following submissions.

234. Hailee Williams is 27 years of age. At the time of the alleged negligence in 2012, she was approximately 18½ years of age.

235. She had successfully completed her higher school education and was enrolled in university to study Primary School Education. Her expectation was to become a primary school teacher and ultimately move into student counselling.

236. She deferred from university in 2012 and entered childcare so she could gain experience in managing children. Her rationale was to see whether she would enjoy working with children given her proposed career path. As a result of her medical condition, primary school teaching is no longer possible.

237. Hailee Williams is now significantly disabled by her pain condition. The defendants accept this. She has developed a chronic and entrenched pain syndrome which is a combination of nociceptive and neuropathic pain radiating from her lumbar spine to her lower limbs and feet. This has been of longstanding duration.

238. Ms Williams' chronic nociceptive and neuropathic pain syndrome has adversely affected her psychological state resulting in a chronic adjustment disorder with depressed and anxious mood within the context of chronic physical disabilities and pain disorder.

239. She suffered a severe emotional shock when she was told she required urgent surgery in order to avoid becoming a paraplegic. Following surgery, she has suffered ongoing pain. She has never been without pain.

240. The severity of Ms Williams' symptoms of anxiety and depression are predominantly driven by her intractable response to the pain complaint. Her psychiatric prognosis depends largely upon the resolution of her chronic pain syndrome and the severity of the physical symptoms.

241. The pain management experts consider her prognosis to be guarded. There are significant negative prognostic factors that may have an impact upon future treatment.

242. It is accepted that Ms Williams' nociceptive and neuropathic pain condition has affected her activities of daily living, mobility, mood, social functioning, and quality of life. Dr Fisher clearly pointed out her invidious cycle of pain and suffering.

243. She has functioned better during some periods than at other times. While she has attempted to maintain employment, which is to the defendants' benefit as it reduces her economic loss, her engagement in employment has been associated with pain and fatigue. She has worked despite her pain. She wanted to contribute to the family and enjoy a sense of meaning and contribution. Her inability to re-engage in the workforce will have a negative effect on her self-esteem and emotional wellbeing. If she can work in the future, she will be suffering pain.

244. Ms Williams always wanted to have children. Her ability to have a normal family life with children for whom she could care is substantially compromised and is essentially unavailable to her.

245. Andrew Rae provided unchallenged evidence as to the nature and extent of the care Ms Williams requires due to her significant pain syndrome and related issues. She has effectively lost her independence. Mr Rae describes her increased use of walking sticks or Canadian crutches when ambulating in and outside her home. He has witnessed her having "collapsing attacks". He does not know what causes these. He described, in detail, the progression of symptoms from numbness in her thigh which progresses to her dragging her foot before ultimately collapsing into an apparent state of unconsciousness.

246. Andrew Rae also described her difficulties with respect to domestic tasks, her pain issues and an array of problems he has witnessed including her difficulty sleeping, nightmares, pain management, activities of daily living, and social interaction. None of these observations was challenged.

247. He also detailed the plaintiff's worsening physical, emotional and psychiatric state. He described her living conditions and decreased mobility, the deterioration in her mental health and treatment, her financial, emotional and self-perception, her employment, and what he does to assist her activities of daily living. His evidence was not challenged.

248. Similarly, the evidence of Ronald Rae was unchallenged about what he observed and the care he provided to Ms Williams, including domestic and personal care.

249. It has been suggested that Ms Williams may respond to a targeted multidisciplinary and supportive pain management program that in conjunction with spinal cord stimulators. This would assist her to manage her pain but would not remove it completely. Notwithstanding her motivation to reduce her pain, there are significant negative prognostic factors, not the least of which is the fact that there have been seven years of post-surgery without adequate pain management or treatment.

250. The efficacy of a permanent spinal-cord stimulator can only be determined by her response to the 10-day temporary simulator trial. If she does not achieve a minimum pain reduction of at least 50 per cent, then the permanent stimulator will not be implanted. Moreover, there are inherent risks with spinal-cord stimulators: between 10 and 15 per cent of electrodes migrate and there is a requirement for repeat surgery to replace batteries. It is an invasive procedure and would need to be the subject of advice.

251. The defendants made the following submissions.

252. While there can be no guarantees of success and there are some negative prognostic factors, not the least of which is that almost eight years have passed since Hailee Williams’ initial surgery, there are nonetheless several fairly significant positive indications. Ms Williams is still young, clearly motivated to receive treatment and improve her level of function and has expressed a preparedness to commit to appropriate pain management. Provided her medication regime is modified, including weaning off opioids and medicinal marijuana, and providing a multi-disciplinary and supportive treatment plan, possibly utilising a spinal cord stimulator, the defendants submitted that there are good prospects of a fairly significant reduction in her pain and improvement in her level of function. The defendants emphasised Associate Professor Boesel’s opinion as to the evidence base for high frequency spinal cord stimulation and its efficacy in bringing about pain reduction.

253. While the evidence also indicates that Ms Williams suffers from an adjustment disorder, the defendants submitted that it seems primarily to be driven by her experience of pain. In addition, she had an entrenched adjustment disorder prior to the events in respect of which she sues. There is thus a likelihood on the evidence that even but for the alleged negligence, Ms Williams would have continued to experience at least some level of depressive symptoms as part of that disorder.

254. The defendants submitted that, in all the circumstances, after having regard to the objective seriousness of her injuries and disabilities and their subjective effect on her, the appropriate allowance for non-economic loss should be assessed as 55% of a most extreme case.

255. In my view, Hailee Williams is significantly and functionally debilitated and has effectively lost her independence in most facets of her life. The prospect of any successful resolution of her pain syndrome is small. Hailee Williams appeared to me to be destined for a life of significant incapacity, with her currently entrenched disabilities unlikely on one view to resolve at all and certainly unlikely to improve in the short term. It is difficult to see how even the best medical care and attention will produce a satisfactory resolution of her cycle of pain. She was also an active and energetic young woman, participating in regular sport and recreational activities which are now lost to her. It is difficult to imagine the level of frustration and distress that this loss will have caused.

256. I am not able to accept the defendants’ assessment of her condition as only 55% of a most extreme case. In my opinion, Hailee Williams is entitled to damages assessed upon the basis that she is 82% of a most extreme case.

Past out-of-pocket expenses

257. The parties have reached agreement on the following out of pocket expenses for the period 13 June 2013 to 15 June 2020:

Medicare	$21,507.40
HCF (Private Health)	$43,630.25
GAP Medical Expenses	$21,202.05
Medication Expenses	$13,250.00
Miscellaneous Expenses	$10,665.00
TOTAL	$110,254.70

258. Ms Williams has asked that any out of pocket expenses payable from 15 June 2020 to the date of judgment be reserved.

Future Out of Pocket Expenses

259. Hailee Williams made detailed submissions with respect to her likely future treatment requirements. Her submissions were as follows.

260. Dr Rutkowski and Dr Dalton held vastly different opinions about Hailee Williams’ future treatment expenses based on her estimated long-term appropriate pain management. Dr Rutkowski considered the future to be bleak having regard the chronicity of her nociceptive and neuropathic pain condition, psychiatric disorder, emotional and social regression and physical care requirements. In contrast, Dr Dalton considered the solution to her pain disorder and disabilities lay in the implementation of core strengthening techniques in combination with appropriate pain management treatment. Dr Dalton has not entertained the probability that pain management may be unsuccessful.

261. The pain management experts acknowledge that a program involving the insertion of a permanent spinal simulator does not remove pain but enhances capabilities. Ms Williams submitted that they are far more circumspect in their opinions than Dr Dalton and that their experience and expertise are superior. As such, Dr Dalton’s opinion on the likely response to further pain management should be given little or no weight.

262. The pain management experts conceded that Hailee Williams would require ongoing and regular multidisciplinary treatments for the remainder of her life, including further surgical procedures to replace things such as batteries and migrating electrodes. They conceded that even with that intervention, she would still require care and assistance. Moreover, there is a significant rate of relapse to opioid medications for the treatment of nociceptive and neuropathic pains following the successful completion of pain management programs.

263. Having regard to these qualifications, Hailee Williams maintained that provision should be made for the following:

Equipment expenses total	$67,546.00
Hi-Lo Bed, replacement every ten years	$2,000.00*
Canadian crutches, replacement every ten years	$95.00
Walker, replacement every ten years	$125.00
Provision of replacement of handrails every ten years
Over toilet seat, replacement every ten years	$150.00
Treadmill replacement, every ten years	$2,000.00*
Cross trainer replacement every ten years	$4,000.00*
Galileo vibration plate purchase, at the one-off cost of	$11,000.00*
Continence pads per year ($3.55 for 10)	$130.00
Mattress protectors, with replacement every year	$100.00
Wheelchair, from age 60 years to 80 years, with replacement every five years	$2,500.00
Jason recliner chair with lift option, replacement every ten years	$5,000.00*
Installation of side by side drawer dishwasher at waist height, including cabinetry costs, one-off	$5,000.00*
Replacement cost of drawer dishwasher, every ten years	$2,000.00*
Heat packs x 2, replacement every four years	$60.00
Shower chair, replacement every five years	$100.00
Medical treatments total	$220,065.00
Annual recurring:
GP level B – 4 times	$316.00
GP home visit annually	$136.00
GP script – 6 times	$71.00
GP multi-disciplinary care plan	$265.00
Rehabilitation physician consultations	$330.00
Sport and exercise medicine	$330.00
Pain management consultations	$555.00
Consultant psychiatry consultations	$750.00
Psychological consultations ($250 every 6 months)	$500.00
Physiotherapy consultations (6 per year)	$780.00
Hydrotherapy (monthly)	$780.00
OT review ($720 every 2 years)	$360.00
Multidisciplinary team review ($1,500 every 5 years)	$300.00
Spinal surgeon/orthopaedic review ($265 avg each 3 years)	$88.00
Respiratory physician consultations ($330 every 5 years)	$66.00
Physician case conference ($555 every 5 years)	$111.00
Specialist urologist ($267 every 4 years)	$66.75
ADAPT team reviews biannually ($700)	$1,400.00
Subtotal	$7,204.75
Average weekly amount	$138.55
One-off
ADAPT Intensive Pain Management Program and transport	$18,421.60
Spinal cord stimulation (including trial and placement) with a deferral for ten-year pending weaning from opioid medications (i.e. $61,400.00)	$100,000.00
Investigations total	$42,008.25
Blood tests, biochemical analysis and urine	$200.00*
Urinary tract ultrasound (every two years)	$197.50*
X-ray and MRI spine ($1,825 every three years)	$608.33*
CT spine ($765 every 5 years)	$765.00*
Neuromuscular electrodiagnosis ($555 every 5 years)	$111.00*
Chest or pelvic x-rays (av $122 every 6 years)	$20.30*
Shoulder ultrasound ($395 every 7.5 years)	$52.67*
CT abdomen ($1,525 every 7.5 years)	$203.30*
Subtotal	$2,158.10
Average weekly amount	$41.50
Medication costs total	$115,185.00
Lyrica	$513.00
Fluoxetine 20mg (20mg daily PBS $39.50 for 28 (13 treatments))	$513.00
Coloxyl (PBS $39.50 for 100 (1/2 treatment) for 12 months)	$20.00
Noroxin/Alprin/Keflex (not regular PBS for $39.50 for 14) (1 treatment)	$40.00
Panadol 500mg tds or Panadeine	$306.00
Microlax/microlet enemas	$20.00
Multivitamin	$237.00
Endone	$395.00
Nurofen	$500.00
Volataren cream	$158.00
Fish oil capsules	$200.00
Magnesium	$158.00
Temazepam	$158.00
Melatonin (Circadin)	$252.00
Cranberry	$221.00
Clexane injection PRN	$37.70
Norspan	$1,696.76
Palexia ($41.00 per 28 tablets 1 per day)	$492.00
Subtotal	$5,917.46
Average weekly amount	$113.80

264. Hailee Williams has provided evidence regarding the benefits she has received whilst undertaking the medical marijuana trial in which she has been participating since July 2019. The current cost of her medical marijuana, whilst on the government trial, is $224.00 per week. The cost thereafter on a private basis is $448.00 per week ongoing.

265. These costs are claimed on the basis the trial will remain ongoing for a further six months and that beyond that, Hailee Williams wishes to avail herself of ongoing medical marijuana private scripts indefinitely.

266. The total cost of this medication, as outlined in Hailee Williams’ schedule of damages, is $467,040.

267. The defendants drew attention to the fact that this is an area where there is a significant difference between the views of Dr Dalton and Dr Rutkowski. Hailee Williams claims the total sum of $1,195,764. The defendants have conceded that only some (as indicated) of the following amounts are reasonable:

1. Equipment expenses totalling $5,224.80, including a suitable bed at $2,000 with replacement every 15 years, heat packs at $50, with replacement every 4 years, a shower chair at $250, with replacement every 5 years and a recumbent bike or spin bike at $1,000, with replacement every 10 years.

2. Medical treatment totalling $139,133.43, including four GP visits per annum at $79 per visit, pain management at $18,421.60 initially and then two follow up visits per annum at $350 per visit, a spinal cord stimulator at $100,000, with deferral for 1 to 2 years pending weaning from medication (so that the deferred sum is $92,500), orthopaedic/spinal surgeon review every 3 years at $250 per visit and an additional psychiatric review once a year, at $350 per visit.

3. No medical investigation expenses.

4. No additional medical procedures, other than the spinal cord stimulator procedure, which has been allowed for separately.

5. No additional allied medical or adjunct therapies other than physiotherapy, which will be provided as part of the pain management program and has been allowed for separately.

6. Additional medication expenses of $4,472.66, including four years of Lyrica, Panadol or Panadeine and Duloxetine in the period during which weaning off medications will occur (which comes to $23.59 per week on the costings set out in the Statement of Particulars). Additionally, a buffer type allowance of a further $5,000 is made for occasional analgesics thereafter, in total amounting to $9,472.66.

268. I accept the defendants’ position with respect to medical investigation expenses. There is no suggestion that Hailee Williams’ orthopaedic condition will deteriorate other than at a rate commensurate with her age-related status as she matures. The need for the claimed suite of investigations does not appear to arise from the enduring pain state that is the main contributor to her current invalidity.

269. I consider that the cost of additional medical procedures, other than the spinal cord stimulator, are also not recoverable. Physiotherapy and the medical marijuana costs should be allowed upon the basis that they relieve the defendants of the consequences of what would be unrelieved or increased suffering if some amelioration of the enduring pain syndrome can be achieved in these ways.

270. The items marked with an asterisk in the preceding tables under this head of damage should not be allowed.

Past economic loss

271. The defendants accept that but for her injury, Hailee Williams would likely have pursued a career as a primary school teacher. She would have studied full-time for approximately three years between 2012 and 2014, subject to possible deferral for travel so that she would have suffered no loss in 2015. Since then, the defendants accept that Hailee Williams would have earned approximately $53,600 net per annum.

272. The parties reached agreement on past economic loss as follows:

Past Loss of Income	$174,459.00
Interest on Past Loss of Income	$7,252.62
Past Loss of Superannuation	$19,191.00
Interest on Past Loss of Superannuation	$796.43
TOTAL	$201,699.05

273. These agreed figures represent an acceptance of Ms Williams’ pleaded claim as outlined in her second further amended statement of particulars filed on 3 June 2020.

Future economic loss

274. Hailee Williams and the defendants have agreed on the following matters:

1. But for her injuries and disabilities, Ms Williams would have achieved an academic result that would have allowed her to work as a NSW primary school teacher.

2. The applicable award setting out remuneration for a NSW primary school teacher is the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2020.

3. Ms Williams would have worked to retirement at age 67 years.

4. A reduction for 15 percent for vicissitudes is required to be applied to Ms Williams’ future economic loss claim.

5. Ms Williams would have had a baby at age 31 and she would have taken one year of maternity leave (being paid 14 weeks full pay in accordance with the award) and returned thereafter to full time employment.

275. There is no further agreement with respect to future economic loss. Ms Williams made the following submissions.

276. Ms Williams was highly motivated and would have enjoyed the fruits of a full-time teachers’ salary to age 67 years. She has expressed an interest in returning to work provided her pain condition was under control. She could perform some administrative work.

275. Dr Rutkowski was pessimistic about Hailee Williams’ ability to return to any meaningful work for which she had been trained or had experience due to her chronic pain disorder. She expressed considerable doubt that she would return to employment notwithstanding completion of a pain management program. Her employment prospects were dependent upon her obtaining a sedentary position that allowed her to get up and move around periodically and a sympathetic employer who would allow her to modify her working environment and conditions. Dr Rutkowski expressed serious concerns having regard to Ms Williams’ significant physical and emotional condition since 2018. She restated her pessimism surrounding Ms Williams re-engaging in the open workforce, having passed the times where she could meaningfully re-educate vocationally due to her chronic pain syndrome.

276. Associate Professor Boesel stated that a pain management program with effective spinal cord stimulation would not resolve Ms Williams’ pain but would give her greater flexibility in work choices. However, he conceded there was no guarantee she would positively respond to temporary spinal cord stimulation and therefore a permanent spinal-cord stimulation would not be available. Accordingly, her nociceptive and neuropathic pain syndrome would persist.

277. Dr Girdler considered that her diminished functional hierarchy of self-care and other dysfunction would cause potential employers to look elsewhere rather than to employ someone with challenging attributes. Associate Professor Boesel, Dr Fisher and Dr Virgona agreed that Ms Williams would have difficulty in re-entering the labour market or retraining. The totality of the evidence, despite her desire to re-engage in employment, persuasively suggests that it is unlikely Ms Williams will return to full-time work even with successful pain management treatment.

278. Ms Williams therefore claims the loss of a primary school teacher’s wages (or in the alternative a school counsellor’s wage), and superannuation entitlements, until she turns 67. Based on the award, the present wage for a qualified primary school teacher or school counsellor is $112,163 gross per annum (being approximately $1,600 nett per week).

279. Ms Williams claims $1,600 net per week for 41 years based on the 5 per cent multiplier tables. This comes to $1,479,680. Applying a 15 percent discount for vicissitudes produces $1,257,728. Ms Williams also claims the loss of superannuation at 11 percent to the age of 67 years, in the sum of $138,350. Her total claim for future economic loss including superannuation is therefore $1,396,078.

280. Hailee Williams presented as an intelligent and resourceful woman. I can see no basis upon which to conclude that, but for her current disabling condition, she would not have embarked upon the posited career path or that her loss of income in the circumstances would not have been as she claims.

281. The defendants’ response was in the following terms.

282. Having accepted the premise that but for injury, Hailee Williams would have continued as a primary school teacher and progressed over time through various pay bands, a reasonable estimate for her likely earnings into the future is $70,000 net per annum ($1,346 net per week).

283. The defendants contend that the appropriate finding as to the future, based upon the assumption that Hailee Williams participates in a pain management program and probably has a spinal cord stimulator successfully implanted, is that while she will not earn anything for approximately the next two years, she will then be fit to return to roughly half the normal hours of work, either in an administrative position in the child care industry or possibly as a primary school teacher after retraining. Accordingly, the defendants allow $1,346 net per week as a loss for the next two years, then reduced to $673 net per week for the balance of her working life through to age 65.

284. The sum of $1,346 net per week over two years on the 5% table equates to $133,792. The sum of $673 net per week for 37 years, deferred for 2 years less 15% for vicissitudes equates to $463,644. Lost superannuation based on retirement in 37 years and consistently with the approach in Najdovski v Crnojlovic (2008) 72 NSWLR 728; [2008] NSWCA 175, amounts to $66,487, producing a total future economic loss, inclusive of superannuation, of $663,923.

285. In my opinion, the future loss of earnings claimed by Hailee Williams is reasonable having regard to the evidence of her current capacity and the prospect of improvement. It follows that her additional claim for an economic buffer should be disallowed, as the vicissitudes that are taken into account in discounting this part of her claim necessarily make allowance for a change in her circumstances.

Past gratuitous care

288. Meigan Williams, Andrew Rae and Ronald Rae have given unchallenged evidence about the amount of care they have provided to Hailee Williams over the last seven years.

289. There was some disagreement between Dr Rutkowski and Dr Dalton regarding whether such care was necessary. Dr Dalton’s opinion with respect to Ms Williams’ injuries and disabilities is at odds with that of the pain management experts who consider that she suffers from a genuine and severe pain syndrome affecting all aspects of her life including her activities of daily living, domestic functions, social interaction and mood. The defendants’ submissions appear to have acknowledged that discrepancy.

290. Hailee Williams has submitted that the evidence of Dr Rutkowski should be preferred over that of Dr Dalton: Dr Rutkowski is a spinal rehabilitation physician and her curriculum vitae outlines her significant experience with patients who have suffered spinal cord injuries. Hailee Williams’ neuropathic pain has been caused by a spinal injury and as such Dr Rutkowski is better placed to make a prescription for appropriate care and treatment. Her assessment and recommendations are consistent with the largely unchallenged lay evidence.

291. Dr Rutkowski also undertook a thorough assessment of Ms Williams and attended her home on two occasions to assess her needs and future requirements. Dr Dalton, a sports rehabilitation physician, did not do so.

292. Hailee Williams claims the sum of $162,786 as particularised.

293. This claim is reasonable, is supported by the evidence and should be allowed. It has not been suggested, nor in my view could it have been, that those who spoke of the assistance provided to Ms Williams were giving other than truthful evidence. Moreover, the nature of the assistance given draws support from the opinions expressed by Dr Rutkowski concerning Hailee Williams’ current difficulties.

Future gratuitous/paid care

294. Hailee Williams has given evidence that she can achieve very little by way of domestic tasks and often requires assistance with personal care. While she attempts some household tasks, the evidence suggests this is sporadic and her capacity to perform those tasks is unpredictable.

295. Ms Williams also provided evidence that if she were awarded damages, she intended to engage a paid care provider to assist with domestic tasks and personal care. In particular, she gave evidence that she desires to have a romantic relationship with her fiancé, rather than a carer/patient relationship.

296. Both Dr Fisher and Associate Professor Boesel gave evidence in joint session that her supportive relationship and close family were important prognostic factors. If those relationships unravel, she is at significant risk of psychological regression and consequent reduced capacity to adapt her life to pain.

297. Hailee Williams submitted that where she is not provided with commercial care and forced to rely on the ongoing assistance of her family members, unreasonable strain and pressure would be placed on her relationship with her fiancé and family. Given that these relationships are essential for her social and emotional wellbeing, and her capacity to cope with a significant pain condition, she submitted that she ought to be provided with commercial care.

298. Andrew Rae, Ronald Rae and Meigan Williams gave unchallenged evidence about the extent of the care which she requires as the result of her significant and severe nociceptive and neuropathic pain syndrome. That condition has adversely affected her activities of daily living, mobility, mood, social functioning, and quality of life.

299. Both Dr Rutkowski and Dr Dalton agreed that Hailee Williams currently requires assistance with activities of daily living including some aspects of meal preparation, cleaning, shopping, laundry, making the bed, gardening, handyman tasks and the like. The main difference of opinion is whether this is reasonable to be ongoing into the future and whether her care requirements would reduce if pain management strategies are introduced. This largely depends on whether such strategies are likely to be effective. Ms Williams has established a need for extensive care.

300. Hailee Williams submitted that on balance it is unlikely there will be a substantial or sustained positive response to pain management, spinal cord stimulation or any other technique. The efficacy of such treatment is speculative, and the defendants have failed to discharge their onus that it would result in significant improvement.

301. Dr Rutkowski stated considered that Hailee Williams’ future requirements were considerable. She considered that, on the assumption she was living alone and in a suburban house, Hailee Williams required three to four hours per week for household cleaning, two hours per week for meal preparation and other light activities related to cooking, one hour per week for laundry, including changing sheets and similar activities, two hours per fortnight for gardening and outdoor activities, and two hours per fortnight for handyman assistance. Dr Rutkowski considered that it would be reasonable for Ms Williams to have daily assistance with self-care (even if on a standby basis) and other activities of daily living.

302. Hailee Williams submitted that it would be reasonable for her to be provided with two hours of daily paid assistance for combined personal care (standby) and domestic assistance tasks. It would be reasonable for this care to be provided every morning to allow Ms Williams to shower safely and dress with standby assistance while her bed is made, heavier parts of daily meal preparation are performed, with more onerous aspects of daily kitchen cleaning and parts of the weekly laundry, household cleaning, and shopping undertaken later.

303. Ms Williams submitted that an average hourly rate of $55.00 is reasonable in the circumstances when considering where she currently resides. The rates are well within and below the National Disability Insurance Scheme guidelines and therefore most likely indicative of the relevant market rate.

304. With respect to her current and future transportation requirements, Dr Rutkowski considered that, having regard to her opioid medication regime, the pain management experts’ comments on negative prognostic factors and guarded prognosis and the known high relapse rates following pain management treatment, Hailee Williams required seven hours per week of transportation assistance for general outings and medical appointments. If she does not return to work, Ms Williams will likely require further transport assistance over and above that identified by Dr Rutkowski. According to Dr Rutkowski, Ms Williams will require an additional five hours per week of care from age 65 years.

305. Hailee Williams claims the sum of $1,355,144 as set out in the second further amended statement of particulars filed 3 June 2020.

306. As already noted, the significant difference of opinion between Dr Rutkowski and Dr Dalton concerns the question of whether Hailee Williams’ care needs will continue unabated permanently into the future or will abate progressively if anticipated pain management strategies are successful. Ms Williams’ position is that on balance it is unlikely that there will be a sustained or substantial positive response to pain management, spinal cord stimulation or any other technique, and that the efficacy of such treatment is speculative.

307. Clearly enough, assessments of such requirements can only be informed by expert opinion to a limited degree. That is for the obvious reason that even expert medical practitioners experienced in the field of rehabilitative medicine are only marginally better able to predict the future than me. I have already expressed a preference for Dr Rutkowski’s approach, as she been more closely involved with Hailee Williams and is objectively sympathetic to her predicament. Even so, the defendants are entitled to the benefit of the uncertainty that attends the suggestion that Hailee Williams’ condition will never improve, a proposition that cannot presently be tested or decided.

308. Doing the best I can, I would allow under this head of damages an amount of $900,000.

Buffer for future care

309. Hailee Williams has a history of falls. Each of the lay witnesses has observed them. There is a record of a recent fall in Dr Chow’s notes where she injured her wrist. Hailee Williams has claimed a “buffer” for future care on the basis that any of the following complications may arise as a result of her neurological injuries, spinal injury, treatment requirements and spinal cord stimulator.

310. These complications could include spinal cord stimulator electrode migration, infection or arachnoiditis, further traumatically induced orthopaedic injuries due to falls and carpal tunnel syndrome due to reliance on crutches. Ordinary accidents that befall uninjured people will have a greater impact on her due to an already compromised level of functioning.

311. Hailee Williams’ claim is currently made upon the basis that she continues to remain in a relationship with Andrew Rae. If she were to live alone, her care needs would correspondingly increase. If she were to injure herself, she would require a heightened level of attendant care, with tasks such as dressing, bathing, transfers, ambulating, medical attendances, and some additional domestic assistance.

312. Hailee Williams conceded properly that the amount, if any, of increased future care cannot be determined with any certainty. However, she maintained that provision is required in order adequately to compensate her for contingencies. An assessment needs to be made of the likelihood that she may be injured in a way that increases her future care needs. Hailee Williams maintains that she has established a propensity to fall and injure herself. She submitted that the award of a sum by way of a buffer is therefore reasonable to take account of matters that are incapable of prediction with any degree of certainty, and that this should be done upon the basis that she will require an additional five hours of daily assistance. This claim is promoted and discounted on the basis that there is a 70 percent chance this will not occur.

313. Accordingly, based on a 70 per cent discount, Hailee Williams claims a buffer calculated at the rate of 5 hours per day attendant care and domestic assistance or 35 hours per week, at $55 per hour amounting to $1,925 per week x 1,017.5 (5% discount rate) or a total of $1,958,687.50. After a discount of 70 percent, the total buffer claimed is $587,606.25.

314. I do not consider that this head of claim is maintainable. Once again, anything in the future is possible. The claim for an economic cushion is based upon the unestablished proposition that any change in Hailee Williams’ circumstances will be disadvantageous. There must logically be a corresponding proposition to the opposite effect. An economic buffer should in my view apply in circumstances where a future need exists but where the amount to compensate for it cannot be quantified because of uncertainties and unpredictable events. The sum allowed for future care already takes into account these matters in a way that reflects a balance between the competing positions of the parties. The sum claimed under the present head would in my view amount to double, or at least overlapping, compensation for the same loss.

Conclusion

315. Hailee Williams’ claim in summary can be seen in the following table:

Non-economic loss at 85%	$559,500.00
Past out of pocket expenses	$110,254.70
Past economic loss	$201,699.05
Future economic loss	$1,396,078.08
Past gratuitous care	$162,786.00
Future care	$1,355,144.00
Buffer for future care	$587,606.25
Equipment expenses	$67,546.00
Medical treatments	$220,064.83
Medical investigations	$42,008.25
Medication costs	$115,185.63
Medical Marijuana	$467,040.00
Total	$5,284,912.79

316. By reason of the views I have expressed, Hailee Williams’ loss and damage must be quantified differently to the schedule in the preceding paragraph. In the event that it becomes necessary, I will invite the parties to provide me with a corresponding schedule that substitutes the appropriate amounts calculated by reference to my conclusions.

Orders

317. I will in the circumstances make the following orders:

1. Judgment for the defendants.

2. Costs reserved.

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Amendments

02 June 2021 -

Date corrected in [130], [153] and [199]

Decision last updated: 02 June 2021