Wiltshire-Butler v Hardcastle - [2002] WADC 13

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WILTSHIRE-BUTLER -v- HARDCASTLE [2002] WADC 13

CORAM: MACKNAY DCJ

HEARD: 3-6 SEPTEMBER 2001

DELIVERED : 31 JANUARY 2002

FILE NO/S: CIV 1470 of 1997

BETWEEN: LANCE WILTSHIRE-BUTLER
Plaintiff
AND
PHILIP HOBSON HARDCASTLE
Defendant

Catchwords:

Negligence - Medical negligence - Whether some surgery required but not carried out and other surgery not necessary but done - Turns on own facts

Torts - Battery - Whether plaintiff consented to form of operative procedure carried out - Turns on own facts

Legislation:

Nil

Result:

Plaintiff entitled to judgment in the sum of $82,000

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Mr J A Chaney

Solicitors:

Plaintiff: Bradford & Co
Defendant: Edwards Wallace

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

Chatterton v Gerson [1981] QB 432
Graham v Baker (1961) 106 CLR 340
Health & Community Services (NT), Department of v JWB & SMB (Marion's Case) (1992) 175 CLR 218
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Purkess v Crittenden (1965) 114 CLR 164
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 75 ALJR 734
Sellars v Adelaide Petroleum (1994) 179 CLR 332
Sidaway v Board of Governors of the Bethlem Royal Hospital & Maudsley Hospital Board (1985) AC 871
Watts v Rake (1960) 108 CLR 158

Case(s) also cited:

Barnes v Hay (1988) 12 NSWLR 337
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Bergman v Haertsch [2000] NSWSC 528
Bolam v Friern Hospital Management Committee (1957) 1 WLR 582
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Burnett v Kalokerinos, unreported; NSW SCt; No 11138/93; 22 March 1995
Chappel v Hart (1998) 195 CLR
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
F v R (1983) 33 SASR 189
Hotson v East Berkshire Area Health Authority [1987] AC 750
Karpati v Spira, unreported; NSW SCt; No 15853/92; 6 June 1995
Kavanagh v Akhtar (1998) 45 NSWLR 588
Lucas v Hillier & Carney [1999] SASC 128
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218
Stapley v Gypsum Mines Ltd [1953] AC 663
Western Australia v Watson [1990] WAR 248

MACKNAY DCJ:

Introduction

The plaintiff is aged 52 years, having been born on 1 July 1949.
In about June 1991 the plaintiff saw the defendant, then as now an orthopaedic surgeon in private practice, in relation to back problems the plaintiff had, in particular following a work accident in 1988 when he had sustained a crush fracture of a vertebra at the thoraco‑lumbar junction of his spine.
After some investigation of his condition it was arranged that the plaintiff would undergo surgery on his spine on 30 October 1991, to be carried out by the defendant, and that duly occurred.
The defendant continued to see the plaintiff thereafter until November 1992.
Eventually the plaintiff saw another orthopaedic surgeon and underwent further back surgery at his hands.
The plaintiff later brought this claim, alleging negligence on the part of the defendant and seeking damages for personal injury.
The negligence alleged relates to two matters.
First, the plaintiff asserts that the defendant ought to have carried out a fusion of the thoraco‑lumbar junction of his spine, and that it was negligent of him not to do so. As a consequence of that failure the plaintiff says that he lost the chance of his condition undergoing any improvement.
Second, it is said that a decompression procedure carried out by the defendant at the L4/5 level of the plaintiff's spine and a stabilisation procedure there with the use of Graf implants was unnecessary, given the plaintiff's apparent medical condition, and resulted in injury to his low back.
The defendant denies any negligence or that the plaintiff suffered loss.
The plaintiff also alleges that he was unaware that he was to receive a Graf implant and did not consent to it, a fact admitted by the defendant, so that the surgery constituted a battery upon the plaintiff, entitling him to damages.
The defendant says that the plaintiff consented to surgery, and that the procedure actually carried out fell within the terms of that consent.

The plaintiff's evidence

The plaintiff said he was educated to about age 16 years and then worked in various jobs in a number of places, including with Hamersley Iron in 1974. Whilst with that entity the plaintiff said he sustained a back injury, for which he required an operation, following which he received workers' compensation. It would appear from other evidence that operation was a discectomy at the L4/5 level of the lumbar spine, the plaintiff having earlier undergone a myelogram.
The plaintiff claimed that he eventually had complete resolution of his symptoms from that injury and worked in a number of jobs which involved heavy physical labour.
However, the plaintiff said that on 22 August 1988 he was injured in the course of a work related journey to a mine site when his head hit the roof of a vehicle in which he was a passenger after it went over a bump.
Apart from an unsuccessful part‑time work trial with his employer the plaintiff said he did not work again until November 1989, when he obtained part‑time work as a chauffeur with Budget chauffeur drive, where he remained for about a year.
The plaintiff said that after the 1988 accident he had specific pain in his mid‑back which had remained with him, but other pain, including some pain down the right leg, resolved.
He also had some numbness over the top of the left thigh, the plaintiff said.
Doctors seen by him included Mr Frank Bell, Mr Robert Genat and Mr Peter Bath, the plaintiff said.
The plaintiff denied he told Mr Bath in September 1989 that following the 1988 accident he had problems the length of his spine, or that he later told Mr Bath that he had experienced shooting pains down the left leg to the calf.
He agreed he told Mr Genat in May 1991 that he had pain into the left buttock and the posterior of the left leg to the calf but denied that he said there was a difficulty in weight bearing on the left leg.
The plaintiff also denied that he told the defendant in June 1991 that eight weeks prior to that review he had experienced pain down both legs more marked on the left, which extended to the ankle.
During the time that he was a chauffeur the plaintiff said he "felt my back had improved quite substantially and agreed with the doctors that I was fit for lighter work, without lifting", although he later agreed he had given up that job due to the effect of it on his back.
In about mid‑1990 the plaintiff said he found full‑time employment coating the insides of pumps with John Venables engineering, but that involved bending, and his mid‑back pain increased, with some pain down the left leg, so that he was referred back to Mr Genat and his performance at work dwindled and he was dismissed.
As to why he later told Mr Slinger that he had left that job to rest before his surgery with the defendant he said he had forgotten to mention the increased symptoms and agreed the employment had been terminated prior to the surgery being in prospect.
Although he recalled that on examination he complained of pain in the lower back, especially when doctors "pressed" him in that area, the plaintiff said his main problem was in his mid‑back.
The plaintiff had been referred to the defendant "with a view to spinal surgery" he said, and first saw him in mid‑1991.
The plaintiff said that he was at that time keen to find a solution, recalled an injection in the mid‑back which took away both mid‑back and left leg pain for a few hours, whilst a low back injection had not helped, and said that he later saw the defendant at the Royal Perth Hospital outpatients clinic.
At that review the plaintiff said the defendant told him the injection in the mid‑back "proved that my problem was there and that I needed a fusion there".
The defendant said that he would also explore the L4/5 level of the back by having a "look" there, the plaintiff said, but did not say he would fuse that level if it required that.
Nothing at all was said about any possible risk of any kind involved in the procedure, the plaintiff said, nor about a Graf procedure.
At the time of that review, which was on 29 July 1991, the plaintiff said he was not sore in his low back and did not have regular left leg pain, although at the time of his admission to St John of God Hospital Subiaco for surgery on 29 October 1991 he had occasional pain "all the way down" his left leg, as well as pain in the thigh in that leg, whilst he was stiff in the upper part of the body and had mid‑back pain, for which he, however, did not require medication.
He did not see the defendant in the hospital prior to the surgery, the plaintiff claimed.
A nursing assessment form completed on the plaintiff's admission which showed in a pre‑operative diagram that the plaintiff then experienced pain down the back of his left leg did not correctly set out the position, the plaintiff said.
After the operation the plaintiff said he was informed by the defendant that some screws had had to be placed in the lower part of his spine to support it, and that the defendant had not needed to carry out a fusion to the mid‑back.
After being discharged home the plaintiff said he began to develop "different pain", being pain on a constant basis in the lower back with pain in the left leg which "was now different and started shooting down my leg when I was lying or sitting and was sharper than it was ever before", although there was some improvement to the latter with exercise.
He could recall making complaint to the defendant about these new pains, the plaintiff said, and had not told the defendant that the pain was much the same as it had been pre‑operatively or that he could sit and stand for about an hour. Rather, the plaintiff said he told the defendant that he was worse.
In January 1992 he had not told the defendant that he was walking three times per day over 800m, and said his walking ability had not improved.
The plaintiff denied that in November 1992 he had said to the defendant that there was a 40 per cent improvement in his condition as a result of the procedure.
Nor had he told Mr Bath in February 1994 that the operation carried out by the defendant had not helped much, the plaintiff said, and he was sure that he had told Mr Bath that it had made him worse.
His mid‑back pain and left thigh numbness remained, the plaintiff said, and in May 1992 he had required an epidural injection.
About a year after the surgery the plaintiff said he ceased to see the defendant, after the insurer stopped paying the defendant's accounts.
Thereafter the plaintiff said his low back and left leg pain became worse, and more significant than his mid‑back pain, and he saw Mr Peter Woodland, orthopaedic surgeon, as well as a surgeon in Sydney, Mr Segulov.
He did return to work in a laboratory, doing light work, and also worked as a storeman, the plaintiff said, but could not cope with his symptoms.
In March 1996 Mr Woodland removed the Graf screws, the plaintiff said.
The plaintiff said that he did not recall telling Mr Woodland in December 1994 that prior to the defendant's surgery he had pain down the posterior of the left leg into the ankle or that following that surgery he had experienced relief in his left leg pain for 12 months until there had been a recurrence.
Following Mr Woodland's surgery the plaintiff said his low back pain was less severe, and he lost the majority of his left leg pain, but over the next year or so those pains had returned.
The plaintiff said that he had required, and continued to require, medication, and currently was "on" morphine for pain and Temazepam to assist with sleep.
He said he felt he had "missed the chance of – having my mid back fused and do not want any more operations".
His present symptoms included "extreme problems" with sleep, constant mid‑back and low back pain, with varying problems in the left leg, the plaintiff said, and he used a walking stick "to maintain confidence in walking".
Since the defendant's surgery in 1991 he had "been unable to form a relationship", the plaintiff said, and lived by himself, and was "predominantly" able to look after himself, although he did receive some assistance from others.
He had not worked since the 1996 operation carried out by Mr Woodland, the plaintiff said.
A friend, Jose Herrero, had visited him about four times per month since the defendant's operation, other than for a period of about six months after removal of the Graf instrumentation, the plaintiff said, and had spent about one and a half or two hours per week providing assistance with various tasks, including moving things, vacuuming, dusting and changing the bed.
The plaintiff later said Mr Herrero had assisted him from time to time between the end of 1988 and the 1991 operation, and that the plaintiff had not seen him for about six months after that.
For a "couple of years" following the operation performed by Mr Woodland in 1996 Mr Herrero had visited less often, the plaintiff said.
The plaintiff said that during the last two or three years Mr Herrero's visits had been more frequent, and it was during that period that he might spend an hour and a half in the provision of assistance.

Other evidence in relation to voluntary assistance

Mr Herrero's evidence was that he saw the plaintiff after his motor vehicle accident in 1988 but did not help him with housework at that time.
For about three or four years or a little longer prior to the date of trial he had, however, regularly assisted the plaintiff, Mr Herrero said, but prior to that he had not provided much help at all.

The defendant's evidence

In his verified statement of evidence (par 2) the defendant began by saying that he had "some recollection of (the plaintiff) and I make this statement based on the contemporaneous medical records and on my recollection of events".
His first consultation with the plaintiff was on 4 June 1991, the defendant said, the letter of referral from the plaintiff's general practitioner, Dr Cooke, of May 1991 making reference to persistent low back pain following the August 1988 accident.
The defendant said no clinical note exists in regard to that consultation but his letter to Dr Cooke of 4 June 1991 set out the relevant findings.
That letter states in part:
"He has not had any treatment for his back and he said about 8 weeks ago he started to develop pain radiating down both legs more marked on the left, down to the ankle. He did have some numbness on the anterior part of this thigh but as he developed pain down his leg, this resolved. There has been no bowel or bladder disturbance.
…
He said that walking was reasonably conformable and he was worse being in the one position.
On clinical examination he had a well healed mid line lower lumbar scar with normal spinal curves. All movements were symmetrically restricted except extension which was 0 degrees. SLR was about 55‑60 degrees on both sides. There were no objective neurological or nerve root compression signs. He was locally tender at the T12/L1 level and also at L4/5.
Plain x‑rays in 1988 and more recently show a wedge compression fracture at L1. In the interim period there has been considerable narrowing of the T12/L1 disc space. Alignment of the spine is good.
The CT scan shows the degree of spinal stenosis at the L4/5 and it is difficult to assess whether there is any disc lesion here.
He does not have any posterior neck tenderness and movements in extension and rotation to the right are good but he has almost complete loss of rotation to the left and some restriction of flexion.
I am uncertain as to the actual diagnosis of his problems and I am going to make arrangements for him to have a myelogram of both levels and CT scans through the thoraco‑dorsal and low lumbar areas. I will also arrange for selective facet blocks at the L1/2 level as well as L4/5. I will be reviewing him back here once these are available."
The defendant said that a myelogram, post‑myelogram, CT scan and plain x‑ray investigations, together with the facet blocks, were done in June 1991.
The myelogram report recorded disc herniation with left‑sided nerve root impingement at the L4/5 level, the defendant said, that being confirmed by the subsequent CT scan report which also noted generalised disc bulge at that level and degeneration of the facet joints at L5/S1.
He then saw the plaintiff for the second time on 29 July 1991, at the relevant Outpatient Clinic at Royal Perth Hospital, the defendant said.
A hospital case note was completed in relation to that review, the defendant said, and that includes the following:
"29.7.91 42 year old man who hurt his back in 1988 when he was sitting in the back of a Toyota landcruiser which went over a bump out in the country near his mine, while at work, and he was thrown up hitting his head on the roof and then coming down developing onset of pain in his back radiating down his left leg. His left leg symptoms were quite severe but these have largely resolved and he has been left with mainly thoracolumbar dorsal pain, aggravated by sitting and walking 150 yds as well as some left sided leg pain. He previously had a laminectomy in 1976 and said he had been asymptomatic since then. I have actually reviewed him in the clinical room and will arrange for correspondence to be transferred. He has not worked since the accident and apart from physiotherapy and analgesics has had no specific treatment or rehabilitation. Clinically, he has a well healed scar in the low lumbar area. He is very tender at the thoraco dorsal junction and has no tenderness below this. He has about 50% of normal movements. There were no objective neurological signs. The femoral stretch test and sciatic stretch test were negative. Although there was very slight restriction of LSR on the left. Recent investigations including myelogram demonstrate a left posterolateral disc herniation at L4-5 on the left impinging the left nerve root and this has confirmed on the CT scan which also shows some degeneration at the L5-S1 level. His facet block at L4-5 did not give any relief of pain but he did get some short term relief of his leg pain with facet block at T12-L1. It would appear that he had two potential problems in his spine, one being a fracture of L1 with possibly some facetal joint instability at either T12-L1 or L1-2 and given that most of his pain is in the back and higher up this is probably the major source. I have put him on the waiting list for a spinal fusion over these two segments with Hartshill rectangle. Radiologically, he does have evidence of protrusion at the L4-5 level and I think at the same time that this could be explored surgically to make sure there is no recurrent disc protrusion here which may interfere with his post operative recovery. If he did by fusion of the L4-5 level in view of the degenerative changes at L5-S1 this would have to be included."
A copy of the note was apparently sent to Dr Cooke.
At the review the defendant said he spoke to the plaintiff about both possible surgical procedures, and there was a "full discussion", which included advice that surgery at the lower level "would depend on my intra‑operative findings" and "if I found instability at operation, I would perform a stabilisation procedure. If there was no evidence of instability, decompressive laminectomy would be done at this level".
When surgery was offered to a patient, and there was an indication of a willingness to accept it, the defendant said he would "go on to explain the general complications of spinal surgery", including possible mishaps where screws were inserted, and the risk that "the operation may not improve the pain" and that there was "a slight risk that the symptoms may become worse".

The plaintiff had consented to the surgery at that time, the defendant said, and to the best of his recollection that took the form of the defendant saying "you do what you think you have to do".
The plaintiff had also later signed a consent form, dated 1 October 1991, the defendant said, which referred to "posterior spinal fusion T12/L2, exploration L4/5".
The plaintiff had next been seen by him on the morning of the operation, which took place on 30 October 1991, that being confirmed by the "multi disciplinary notes", the defendant said, although he could not "now specifically recall" what he said to him.
In evidence the defendant agreed he had said in a statement to a medical board enquiry that it was likely he had spoken to the plaintiff about the Graf procedure at that time, and said that was the case, despite it being formally admitted in the present proceedings that the plaintiff had not consented to that procedure being carried out.
In relation to the Graf procedure the defendant further said he had been unaware of its existence until August 1991, and had travelled to France in September 1991 to learn more about it, and whilst there had spent some time with Professor Henry Graf, who had developed it. On his return, and in October 1991, the defendant said he then began to use the procedure, the plaintiff being the seventh person on whom he had performed the operation.
The hospital record completed by the defendant in respect of the plaintiff relevantly reads as follows:
"Operation
(1)Open dennervation T12, L1, L1-2, L2-3, L3-4
(2)Lamminectomy (sic) L4-5
(3)PSF with Graf L4-5
Findings & Procedure
Very unstable L4-5 with associated stenosis but no significant disc lesion ‑ posterior osteophyte. This was decompressed and stabilised with Graf L4-5. Some mild instability noted at L3-4. No instability noted above this with dennervation of these levels performed."
The defendant stated that he stabilised the L4/5 level "as intra‑operative testing of the spine indicated that it was very unstable with stenosis".
The assessment of instability in the course of an operation was a method of assessment of the need for a fusion, the defendant said, and "quite a number of surgeons" known to him both in the United Kingdom and in the spinal unit in Perth utilised it, he said, the latter being two in number.
It amounted to, the defendant further said, "a piece in the puzzle", and if there was significant instability the likelihood was that it did or would cause the plaintiff symptoms.
As to the plaintiff's T12/L1 problem, the defendant said that his intra‑operative assessment had been that the plaintiff was "virtually fused there already" and he had found the level to be stable with very little movement.
The plaintiff was discharged home on 8 November 1991, the defendant said.
Thereafter he was seen by the defendant on a number of occasions until, as stated, 3 November 1992, and the defendant's evidence as to the plaintiff's statements and symptoms, and his own findings and recommendations, was in effect a summary of clinical notes or reports said by the defendant to have been written at the time.
According to the notes, at an initial post‑operative review on 12 December 1991 the plaintiff said his back was much the same as it had been pre‑operation, and then complained of generalised pain in the lower back with pain which radiated down the left leg.
In a report of February 1992 to the plaintiff's then solicitor the defendant stated that the plaintiff had been reviewed in January 1992 when he complained of activity related low back pain but his leg pain had been relieved. The plaintiff said that he was walking about 800m three times a day and was doing a reasonable amount of activity.
In March 1992, and according to the defendant's notes, the plaintiff complained of aching in the left side below the rib, numbness in the left thigh with aching in the leg but with an absence of sharp pain without much improvement in lower back pain. The defendant noted that the plaintiff had been referred to a pain specialist, Dr Harrison, apparently in respect of a TENS machine.
In May 1992 the defendant noted that the plaintiff had received an epidural injection, without effect, and was much the same, with thoraco‑lumbar pain in the low lumbar spine with sitting or lying down, and his left leg aching "a lot like before".
In September 1992 the defendant noted that the plaintiff was "much the same" but with his leg pain improved since surgery, although it ached at night.
Finally, in November 1992 the defendant noted that the plaintiff had undergone an L3/4 facet joint injection without effect apart from a subsequent strange feeling, and that his pre‑operative left leg pain had gone although the leg ached at night, and he also experienced lower back pain then. The defendant then set out "overall 40 per cent improvement to pre‑operation" but noted that the plaintiff was to undergo a discogram at L1/2 and a facet block at L5/S1.

Medical evidence

Mr Slinger, an orthopaedic surgeon, was called on behalf of the plaintiff. He first saw the plaintiff on 31 March 1999, and subsequently reported in May 1999 that the diagnosis was of degenerative disease of the lumbar spine with a wedge fracture of the L1 vertebra. The doctor stated that the plaintiff complained of constant pain in the lower back, associated with pain along the left leg into the foot, that being more severe than prior to the 1991 surgery, and having an "electric, tingling" nature not present before then, together with some thoraco‑lumbar pain, although that level was "producing little, if any pain at the present time (the plaintiff) stating this has been unchanged since the procedure of 1991".
After alluding to the defendant's case note of 29 July 1991, and expressing the view that the plaintiff's left leg symptoms were minimal prior to the 1991 surgery, Mr Slinger said it appeared that surgery had initiated and produced symptoms in the lower lumbar spine, although such would not increase and any progression would relate to the degenerative changes.
Based on the plaintiff's presentation Mr Slinger said he did not think the plaintiff was fit for any form of work, the pain in the lower back being responsible for the incapacity, but home assistance was not required.
Mr Slinger, in a subsequent report of July 2000, expressed the view that the value of any intra‑operative assessment of the mobility of a vertebral segments was extremely limited or of no value, as the range of movement demonstrated might be normal for that patient, and further that it was important to correlate any abnormal pathology with symptoms which related to the same, and elucidation of movement in the course of the surgery did not do that.
He had not been aware that the plaintiff had been in receipt of domestic assistance, but had previously said his unit had been in disarray, and it would be reasonable to allow one and a half to two hours per week for "generalised cleaning, vacuuming, ironing and laundry.
Fusion of the thoraco‑lumbar junction "would have provided the situation for improvement" in the plaintiff's symptoms, Mr Slinger said.
In evidence Mr Slinger said that in his experience the defendant was the only spinal surgeon who placed reliance on such assessments.
There was nothing in the history or findings on examination which indicated decompression at L4/5 was required, and the existence of the degenerative changes at L4/5 and L5/S1 would be of significance only if symptoms arose there, and there was no suggestion of that, Mr Slinger stated.
In evidence Mr Slinger said scar tissue from the previous operative procedure undergone by the plaintiff could easily mimic a disc bulge on a radiograph, and an appearance of such there did not mean anything.
Given the absence of signs at examination on 29 July 1991 there had been no reason, in his opinion, for the defendant to operate on the plaintiff's low lumbar spine.
Further, the Graf appliance put the spine, including the facet joints, into extension and that tended to accelerate any degeneration, Mr Slinger said.
It had been reasonable for the defendant to decide to proceed to fusion of the thoraco‑lumbar junction, Mr Slinger said, in order to remove the plaintiff's symptoms.
Mr Stephen Ruff is an orthopaedic and trauma surgeon whose practice in Sydney includes appointments with the spinal injury units of two major hospitals there.
The plaintiff was seen by him in August 1997 at the request of the defendant's then solicitors, Mr Ruff said.
The purpose of that review was to give an opinion on disability, and he was not asked to comment on the defendant's conduct, Mr Ruff said.
In October 1997 Mr Ruff then reported that the plaintiff had complained of constant back pain at the thoraco‑lumbar junction, lumbar spine and lumbo‑sacral junction, exacerbated by any "prolonged posturing" and left leg pain in the antero‑lateral aspect of the thigh radiating down to the ankle and aggravated as with the back, together with associated numbness in the thigh.
Subsequent to the 1991 surgery it was said the plaintiff's back pain had increased, he said, and it was said to be at the time of review 50 per cent worse than immediately prior to the surgery.
Mr Ruff stated:
"His objective clinical symptoms are consistent with the subjective presentation of complaints and symptoms but are exaggerated. He is incapacitated with the bulk of his incapacitation not being related to the operation performed by (the defendant) on 30th October, 1991. He has a current work capacity for at least part time work of a sedentary nature. He (sic) pre‑existing medical condition and other factors which contribute towards his continuing incapacity include the pathology that led to his spinal decompression in 1976, which probably was associated with myodil myelography which may be associated with the late presentation identical to (the plaintiff's) current presentation in association with arachnoiditis. This finding was not present on his myelogram of 1991. In addition he has had a crush fracture with residual deformity at the thoraco‑lumbar junction and has changes at that level and lower in his lumbar spine of spondylosis. For the future his medical treatment should focus on an exercise programme to maintain tone in his paravertebral and abdominal muscles and strategies for pain control. Surgery has no role to play in his management and although he feels that his persisting symptoms are related to the surgery in his mid‑lumbar spine and would have been resolved had that surgery been a fusion at the thoraco‑lumbar junction, that alternative surgery is unlikely to have altered his subsequent course. He has a permanent impairment which according to the Guides to the Evaluation of Permanent Impairment, American Medical Association, 4th Edition is 24% of his whole body, but only a small component of this is contributed to by his surgeries. He has a moderate interference with his ability to participate in social, sexual, recreational and sporting activities, but requires no assistance in order to carry out his activities of daily living. There was no objective evidence that (the plaintiff's) condition is worse than that prior to the operation of 30th October, 1991. Though his pain is worse it is associated with features on physical examination that suggest an altered illness response. The pain that he feels in his lumbar spine and leg is generated in the lower part of his axial skeleton with some component from his thoraco‑lumbar junction and some from his mid‑lumbar spine. Any apportioning of relative contributions is arbitrary and would have no basis in fact."
In evidence Mr Ruff described the degree of likelihood that the myodil myelography had caused arachnoiditis as being "a small chance".
He said that it was not possible to say which level of the plaintiff's spine was producing pain and did not think that could be determined, although the plaintiff probably had two levels which were not functioning properly.
The "other factors" referred to by him as contributing towards the plaintiff's ongoing incapacity included emotional factors, Mr Ruff said, and extreme tenderness to any slight touch in the region of the plaintiff's scars was one thing not usually associated with organic pathology.
In relation to the injury at the thoraco‑lumbar junction Mr Ruff was asked:
"On the other hand, if for example at the T12-L1 there was, firstly, a history of a compression fracture, there was narrowing of the disc space, there was pain specifically there of long-standing origin, there was a positive response to the facet joint and there was tenderness to palpation it would be reasonable to recommend a fusion for the relief of symptoms?---In my experience it would be unlikely that surgery in that circumstance would help those symptoms. Loss of disc space at that level is common in an age group over 40. Crush fractures usually heal and produce no long-term symptoms. Having said that the circumstances that you portray we see from time to time. I'm not convinced that fusing those areas helps those people.
Yes. Can it help a person whose pain is known to be coming from that region?---It may.
What I'm saying to you it's not unreasonable for a surgeon to make a diagnosis that a fusion may help in those circumstances?---Not unreasonable."
Earlier, and in relation to the question of intra‑operative assessment of stability, counsel for the defendant had asked Mr Ruff:
"Can I ask you to comment on the justification in terms of – from the point of views of your expertise as an orthopaedic surgeon, in making an assessment intra‑operatively of the stability of a vertebral joint and whether or not to proceed with a procedure which had been anticipated?---In the setting of trauma which is not the setting that we are dealing with here, obviously intra‑operatively we can demonstrate gross instability and a need for stabilisation but I don't believe in this setting that you can do that and make decisions about various levels intra‑operatively.
Is it the case that frequently in the course of an operation assessments are made and decisions made as to the appropriateness of an anticipated procedure, in the light of particular findings?---Yes, they are. For instance in the circumstance where one is doing a decompression of a nerve root, to decompress that nerve root one has to clearly render the spine unstable, for instance by taking a whole facet joint out or by producing a fracture intra‑operatively in the powers of the posterior element of a vertebra. There may be a compelling argument to go on and fuse it but not in this circumstance that we confronted here. I don't believe that there is anything in this case that would suggest that you could make a decision that someone is more stable at one level than another and that's my practice. Other people differ.
Yes. Are you aware of a range of views on that particular topic within the orthopaedic fraternity?---Most people would agree with me in this circumstance.
Is there a range of views?---People that are proponents, for instance, of the Graf procedure feel that they can determine instability intra‑operatively. Others of us don't hold that view."
As to the procedure carried out by the defendant at L4/5, Mr Ruff said that in circumstances of the kind here he would carry out a fusion only to relieve pain, and also that "on the basis of the evidence available here" he did not see that a two‑sided laminectomy was indicated or that there was an indication for a Graf procedure either.
It was unusual to get instability without a disc lesion, Mr Ruff said.
There had been some deterioration in the plaintiff's condition since the operation, Mr Ruff said, although he did not see that was "necessarily due to the surgery but the passage of time" (sic).
The Graf procedure did not per se cause degenerative changes at adjacent levels, Mr Ruff said, but the placement of the pedicle screws must influence the facet joints at the level above so there was some evidence those would influence change at that level.
Mr Genat is an orthopaedic surgeon who treated the plaintiff following his admission to Fremantle Hospital on 23 August 1988 following the work injury the day before.
X‑ray examination then had shown a mild/moderate crush fracture of the L1 vertebral body, Mr Genat reported in March 1989, and had also revealed evidence of disc degeneration at the L5/S1 level.
After discharge and up to the time of the report the plaintiff had professed severe pain in his lumber spine and was working two hours per day in an office job, having been declared fit to return to work in a light duties capacity in November 1988, and Mr Genat then stated the plaintiff ought be fit to work full‑time in his then present occupation at the end of a further two months.
In September 1989 Mr Genat reported that the plaintiff's condition seemed to have stabilised and in the doctor's view the plaintiff had been left with a degree of permanent disability to the extent of 25 per cent of the whole body.
In May 1991 Mr Genat reported that he had seen the plaintiff again in that month when complaint had been made of an increase in his lumbar pain with radiation into the left buttock and posterior left leg to the bottom of the calf, such that when severe the plaintiff was unable to fully bear weight through that leg.
The plaintiff had had both surgery to a lumbar disc protrusion with later evidence of degenerative change at the L5/S1 level and a crush fracture of the L1 vertebra, with a "continuing, severe pain problem in his lumbar spine since then", Mr Genat noted and therefore:
"It is difficult to sort out which of the above two insults to his lumbar spine is contributing to his current, probably increased symptoms. I rather suspect that he may be experiencing instability problems at the lumbo‑sacral level of his spine, consequent on advancing degenerative change at this level. I believe that he should have new x‑rays of his lumbar spine and be referred to a spinal surgeon for further investigation. If he does have an instability problem at the L5/S1 level, he might be in need of a lumbar spinal fusion operation."
In evidence Mr Genat said that he thought the plaintiff's leg pain in 1991 was indicative of the low lumbar spine rather than the crush fracture, albeit at the L5/S1 level.
Mr Bath, another orthopaedic surgeon, saw the plaintiff in September 1989, and reported at that time that it was difficult to "be exactly clear as to the site of his pathology".
The plaintiff's symptoms then included a complaint of "the whole back swelling up from the inside", and the plaintiff had complained that the Workers' Compensation Assistance Commission had been pushing him too hard to obtain work and it was in "this situation that he feels the swelling sensation occurring within his spine".
The plaintiff was seen again by Mr Bath in June 1990, when the plaintiff said he was in employment as a chauffeur, and Mr Bath reported that clinically there appeared to have been an improvement, although the plaintiff felt his back was "staying much the same".
Mr Bath did not see the plaintiff again until February 1994 and reported that the plaintiff's history since his previous review included termination of the part‑time work as a chauffeur due to general thoracic and low back pain brought on by "too much sitting and driving". The plaintiff said that he had then worked with John Venables engineering for about six months but had left due to further trouble from his back pain, Mr Bath said, although there may also have been a question of a diminution in the amount of work available.
Mr Bath said the plaintiff had then, on an occasion prior to his surgery in October 1991, gone into a hospital for several days.
As to his symptoms prior to the surgery Mr Bath reported:
"Prior to surgery (the plaintiff) said that he had some back pains with shooting pains down the left leg to the calf. He said there was no feeling in the left leg with walking and he would sometimes fall when getting up from the sitting to the standing position. He could not remember any estimate of walking distance."

As to the effect of the surgery Mr Bath reported that the plaintiff had informed him:
"Post‑operatively there was a decrease of pain in the left thigh region but he says that these symptoms have now returned as of the last six weeks or so. Overall (the plaintiff) stated that he did not feel that the operation on his back has helped him at all."
Mr Bath reported in relation to the plaintiff's complaints:
"With standing there is pain extending into the left leg as a whole."
As to his findings on examination Mr Bath said:
"To examination (the plaintiff) was suntanned and looked to be overall fit. He shifted about in his chair during the interview and was unable to sit still. There was a mild kyphosis in the thoraco‑lumbar area and forward flexion was fingers to thighs only. There was nil active extension and very little lateral flexion at all. In the legs there was no muscle wasting seen, straight leg raising was to about 80° on either side but the nerve stretch tests were negative. There was a non anatomical alteration of sensation in the left leg and the sensory alteration seemed maximally over the anterior aspect to the left thigh. Reflexes and motor power were normal.
In the spine there was a scar extending from the lower thoracic to the lower lumbar area. Tenderness extended basically over the same area that is from the lower thoracic spine to the lower lumbar spine."
Mr Bath said he felt there was "no satisfactory explanation with respect to the persisting symptoms in the lower lumbar spine and on that basis one would be unable to give a specific prognosis".
Further, he said that he considered the majority of the plaintiff's symptoms were "related to the area at the first lumbar vertebra with the symptoms lower down being those of a secondary nature".
In conclusion Mr Bath expressed the view that the plaintiff was then "capable of work not involving a lot of heavy lifting and bending and perhaps that of work in a storeroom, caretaker or shop assistant could be considered appropriate" (sic).
Mr R C Edibam, an experienced but now retired orthopaedic surgeon, did not see the plaintiff but perused various reports and papers and in September 1997 provided a report in which he expressed the view that the plaintiff had been appropriately treated by the defendant.
In evidence the practice of intra‑operative assessment of a patient's condition by manipulation received some support from Mr Edibam.
Mr Edibam said that in forming his views he had not placed reliance on the defendant's case notes of 29 July 1991 as he had not been aware that the defendant had been the author of that document.

Law

In relation to the duty of care owed by a medical practitioner to a patient, the decision of the High Court in Rogers v Whitaker (1992) 175 CLR 479 sets out the relevant principles.
In Rosenberg v Percival (2001) 75 ALJR 734, Gummow J at 744 – 745 suggested the following passages in the judgment of Mason CJ, Brennan, Dawson, Toohey and McHugh JJ in Rogers enabled the "structure and sequence of their Honours' reasoning (to be) understood":
"(i)'In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade.' (at 487)
(ii)'[I]t is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life".' (at 487)
(iii)'The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the facts according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors.' (at 489)
(iv)'There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice.' (at 489)
(v)'Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices.' (Original italics.) (at 489 – 490)
(vi)'We agree that the factors referred to in F v R ((1983) 33 SASR 189 at 192-193) by King CJ must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.' (Italics added.) (at 490)."
As to the tort of battery, an intentional and direct interference to the body of another, in the absence of consent, constitutes an assault and battery for which the person so interfering is liable to the person interfered with in damages: see generally Fleming, the Law of Torts 8 ed (1992) pp 24 – 25.
Medical treatment when given with the consent of the patient is lawful, the consent being the factor necessary to prevent such being an assault: Health & Community Services (NT), Department of v JWB & SMB (Marion'sCase) (1992) 175 CLR 218 at 232 – 234 per Mason CJ, Dawson, Toohey and Gaudron JJ.
Where physical injury results from an assault and battery damages are calculated in the same way as in any other action for personal injury: McGregor on Damages 15 ed (1988) par 1615.
A further head of damage can be injury to feelings that may have been caused (ibid), but no claim of that kind has been made here.
The question of consent was considered in Chatterton v Gerson [1981] QB 432 at 442 – 443 by Bristow J:
"It is clear law that in any context in which consent of the injured party is a defence to what would otherwise be a crime or a civil wrong, the consent must be real. Where for example a woman's consent to sexual intercourse is obtained by fraud, her apparent consent is no defence to a charge of rape. It is not difficult to state the principle or to appreciate its good sense. As so often, the problem lies in its application.
No English authority was cited before me of the application of the principle in the context of consent to the interference with bodily integrity by medical or surgical treatment. In Reibl v Hughes (1978) 89 DLR (3d) 112, which was an action based on negligence by failure to inform the patient of the risk in surgery involving the carotid artery, the Ontario Court of Appeal said that the trial judge was wrong in injecting the issue, 'Was it a battery?' into the case pleaded and presented in negligence. The majority of the court, having referred to the United States cases on what is there called the 'doctrine of informed consent,' decided that the action of 'battery' seemed quite inappropriate to cases in which the doctor has acted in good faith, and in the interests of the patient, but in doing so has been negligent in failing to disclose a risk inherent in the recommended treatment. They reversed the finding of battery. I am told that that decision is now under appeal.
In Stoffberg v Elliott [1923] CPD 148, Watermeyer J, in his summing up to the jury in an action of assault in this context, directed them that consent to such surgical and medical treatment as the doctor might think necessary is not to be implied simply from the fact of going to hospital. There it was admitted that express consent to the operation should have been obtained, but was not, due to oversight.
In my judgment what the court has to do in each case is to look at all the circumstances and say 'Was there a real consent?' I think justice requires that in order to vitiate the reality of consent there must be a greater failure of communication between doctor and patient than that involved in a breach of duty if the claim is based on negligence. When the claim is based on negligence the plaintiff must prove not only the breach of duty to inform, but that had the duty not been broken she would not have chosen to have the operation. Where the claim is based on trespass to the person, once it is shown that the consent is unreal then what the plaintiff would have decided if she had been given the information which would have prevented vitiation of the reality of her consent is irrelevant.
In my judgment once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of the action on which to base a claim for failure to go into risks and implications is negligence, not trespass. Of course if information is withheld in bad faith, the consent will be vitiated by fraud. Of course if by some accident, as in a case in the 1940's in the Salford Hundred Court where a boy was admitted to hospital for tonsilectomy and due to administrative error was circumcised instead, trespass would be the appropriate cause of action against the doctor, though he was as much the victim of the error as the boy. But in my judgment it would be very much against the interests of justice if actions which are really based
on a failure by the doctor to perform his duty adequately to inform were pleaded in trespass."
The Judge also pointed out (443):
"… that getting the patient to sign a pro forma expressing consent to undergo the operation 'the effect and nature of which have been explained to me,' as was done here in each case, should be a valuable reminder to everyone of the need for explanation and consent. But it would be no defence to an action based on trespass to the person if no explanation had in fact been given. The consent would have been expressed in form only, not in reality."
In Rogers, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said, at 489, in relation to Chatterton:
"In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended."
Rogers was of course a case of failure to warn of a risk involved in undergoing an agreed surgical procedure, and their Honours also said, at 490, in relation to that:
"In this context, nothing is to be gained by reiterating the expressions used in American authorities, such as 'the patient's right of self‑determination' or even the oft‑used and somewhat amorphous phrase 'informed consent'. The right of self‑determination is an expression which is, perhaps, suitable to cases where the issue is whether a person has agreed to the general surgical procedure or treatment, but is of little assistance in the balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure. Likewise, the phrase 'informed consent' is apt to mislead as it suggests a test of the validity of a patient's consent. Moreover, consent is relevant to actions framed in trespass, not in negligence. Anglo‑Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed. In Reibl v Hughes the Supreme Court of Canada was cautious in its use of the term 'informed consent'."

General findings

The surgical procedure under review occurred over 10 years ago, and allowance must be made for that, both where there is demonstrated inaccuracy of stated recollection, before any adverse inference is drawn, and in relation to claims of unaided recollection generally, as to inherent likelihood of accuracy.
After making due allowance I regret to say that I am unable to regard as reliable the evidence of the plaintiff, in particular in regard to his claimed symptoms at any particular time, or as to conversations in relation to the same, except where his evidence is supported by other reliable evidence.
The plaintiff's persistent refusal to acknowledge the accuracy of prior and subsequent records of his complaints, or the lack of them, where to do so would not apparently assist his cause was, I consider, indicative of at least rationalisation so that he was, in effect, an advocate in his own cause.
Those records comprise the reports tendered and evidence given based on such by Messrs Genat and Bath, the hospital records and the records and reports of the defendant, the divergences being set out above.
In relation to the documents of the defendant I accept that such were made and kept in the ordinary way, and as described, and, generally speaking, can be regarded as reliable, and although there was an error made in at least one document, as pointed out, that that has not in the end altered the view that I have formed.
The defendant's reports were directed to the plaintiff's general practitioner or to his solicitors, and it was not suggested to him that any report had not found its way, or indeed, by the plaintiff, that he had been unaware of the information disclosed in the same.
I would not regard the defendant's particular recollection independent of his reports and records as reliable, given both his concession as to recollection and the view I formed of the true extent of it, in the light of his evidence, although I accept his evidence as to his general way of proceeding at the relevant time.

Position prior to the surgery

Immediately before the plaintiff first saw the defendant in June 1991 he had symptoms in the thoracic spine, those plainly resulting from the 1988 crush fracture of the L1 vertebral body, and also symptoms in the lumbar spine.
The latter included pain radiating into the left buttock and posterior left leg to the ankle, causing the plaintiff difficulty in weight‑bearing on the left leg, as described by Mr Genat, and Mr Bath.
The defendant's letter to Dr Cooke of 4 June 1991 then accurately set out the plaintiff's position, as he then described it, at the time of the first consultation, the plaintiff complaining of pain in both legs, worse on the left and there down to the ankle.
By the time of the further consultation on 29 July 1991 the plaintiff's low back and left leg symptoms had substantially abated, and most of the plaintiff's pain was then from the T12/L1 level, that, according to the defendant's case note, being the "major source" of the pain.
The defendant's noted desire to surgically explore, and if necessary, fuse the L4/5 level must therefore have been based substantially on his view that the investigations done had revealed radiologic evidence of left side disc herniation which impinged on the left nerve root, and some degeneration at the L5/S1 level.
In the ordinary course there would have been a discussion of the possible fusion, as the plaintiff conceded there was in relation to the thoraco‑lumbar fusion agreed on, and the lumbar exploration, and the plaintiff's claimed lack of recollection as to any is of little or no weight, for the reasons mentioned, and I find there was such a discussion and that the procedure was consented to, albeit not in the terms suggested by the defendant, in the absence of any record of that.
The defendant now formally admits that the plaintiff "did not consent to an operation involving the use of Graf implants", and I would find that was the case anyway, the defendant not even being aware of the procedure until after the operation had been discussed and agreed upon, and it being unlikely that it would have been raised for the first time after the plaintiff's admission to hospital, and there being nothing to support the defendant's evidence, that being contrary in any event to his own pleading.
The defendant ought to have informed the plaintiff of the possibility that he would perform the Graf procedure, and his failure to do so was a breach of his duty to inform the plaintiff of what may occur so as to allow the plaintiff to choose whether or not to undergo it.

Surgery of 30 October 1991

In relation to the thoraco lumbar joint the plaintiff simply alleges, as a particular of negligence, that the defendant "(f)ailed to fuse the T12/L1 level" whilst the defendant's pleaded response is that "at operation there was no evidence of instability at T12/L2 and spinal fusion at this level was not indicated".
The absence of any pleaded response to that did not result in objection being made to the plaintiff calling evidence or cross‑examining as to the alleged lack of utility of any intra‑operative assessment of stability, although counsel for the defendant specifically noted the absence of such a plea, and given the way in which the trial was conducted, and having regard to the width of the particular, this issue falls to be determined.
Similarly, in relation to the procedure carried out in the lumbar spine, the plaintiff's ultimate allegation appeared in the course of the conduct of the trial rather than from the pleadings, the defendant's plea that "there was marked instability at L4/5 and to a lesser extent at L3/4" not being responded to, and the allegation again being that an assessment of instability made during the operation could not be justification for any procedure adopted as a result.
It is of course for the plaintiff to establish to the requisite standard that for the defendant to rely on such a finding amounted to a breach of the duty of care owed by him to the plaintiff.
As is pointed out in Rogers the resolution of such a question is not to be determined "solely or even primarily" by the practice of other medical practitioners.
Gleeson CJ made further reference to this aspect in Rosenberg at 736 when after making reference to the minority view expressed in Sidaway v Board of Governors of the Bethlem Royal Hospital & Maudsley Hospital Board (1985) AC 871, 876, the learned Chief Justice said:
"As the above passage, which was quoted with approval in Rogers v Whitaker, makes clear, the relevance of professional practice and opinion was not denied; what was denied was its conclusiveness. In many cases, professional practice and opinion will be the primary, and in some cases, it may be the only, basis upon which a court may reasonably act. But, in an action brought by a patient, the responsibility for deciding the content of the doctor's duty of care rests with the court, not with his or her professional colleagues."

In relation to the expert medical evidence Mr Ruff impressed me as a very careful witness, and as being a person of integrity who although called by the defendant was apparently uninterested in assisting the case of either party to the slightest extent.
His apparent expertise, based on his experience and appointments as a spinal surgeon, was undoubted.
Mr Ruff's evidence appeared consistent with the established facts, and with logic, and was unaffected by cross‑examination, and on a consideration of it generally and where it conflicts with that in particular of Mr Slinger but also the defendant I would rely on it and prefer it.
Mr Slinger based his opinions to a significant extent on the plaintiff's statements as to his condition before and after the operation, which I have not accepted, and also seemed more anxious to defend the views expressed by him, and those things also affected my view of his evidence.
I also accept the evidence of Mr Genat and Mr Bath, the evidence of each of whom was documented.
Turning to the defendant's conduct of the operation, and in regard to the thoraco lumbar junction, if the hospital record completed by the defendant is relied on it appears the defendant did not note any instability above the L3/4 level and carried out a rhizotomy down to that level rather than the fusion of the T12/L2 levels previously planned, as a consequence.
The better view, it follows from my acceptance of the evidence of Mr Ruff, is that no reliance ought to have been placed on any intra‑operative assessment of the stability of those levels and the defendant's finding was not a valid reason for deciding not to carry out the fusion agreed upon.
I note that the views of Mr Slinger are in accord with those of Mr Ruff here, and I accordingly accept his evidence also, on this point.
I find, in accordance with the opinions of those two doctors, that the defendant's earlier decision to carry out a fusion at those levels was not an unreasonable one.
The defendant was of course best placed to make an assessment, and on the basis of his advice to the plaintiff, and absent any proper basis for changing his position ought therefore to have proceeded with that operation.
The question that next arises is whether the defendant's reliance on the finding was negligent. That is, in terms of the duty posited in Rogers, whether the defendant exercised the care to be expected of an "ordinary skilled person exercising and professing to have that special skill".
Apart from the evidence of Mr Edibam, who is retired from active practice, who did not have recent experience as a spinal surgeon, whose evidence appeared confused in some respects, and whose evidence, having heard it, I did not feel inclined to place reliance on, there was no expert evidence in support of the defendant's own expressed view as to the use of the intra‑operative assessment, notwithstanding the defendant's plea in which his conduct was sought to be justified by reference to its use, and Mr Slinger's report of July 2000.
Although Mr Slinger was not aware of any other spinal surgeon who relied on such an assessment there is evidence from Mr Ruff that he was aware that other proponents of the Graf technique used that practice, and the defendant said he knew of two other surgeons in Perth, and of others overseas, who also made use of the same.
It is necessary for me to deal with the issue on the evidence that is presented before me.
As appears above the Rogers duty is not to be ascertained merely by seeing whether a practice is "supported by a responsible body of opinion", and here, given the absence of other evidence, and in circumstances where I would not rely on the defendant's evidence that the practice is efficacious, the shifting of the evidentiary burden which results from my acceptance of the evidence of Mr Ruff and Mr Slinger as to the lack of efficacy of the assessment, in preference to the evidence of the defendant and Mr Edibam is not in my view disturbed merely by the fact that the defendant is not shown to have been acting in total isolation in his profession in following the practice.
I would find that the defendant was in breach of duty in failing to carry out a fusion of the thoraco‑lumbar junction, in circumstances where he considered that should be done, and had arranged it with the plaintiff, his patient, and had then not done it because of reliance on the intra‑operative assessment of the stability of the relevant segments.
In regard to the procedure actually carried out in the lumbar spine, it follows from my finding that there was no basis for the defendant to carry out a laminectomy at the L4/5 level, given what he found on operation, and I again find that the defendant was in breach of duty in that regard.
As to the Graf procedure, notwithstanding the plea that the defendant "knew or ought to have known that system was experimental and had not been subjected to a controlled trial or any trial", there was no evidence led by the plaintiff as to that.
It is apparent, however, from what was said by Mr Ruff that there is evidence that the introduction of Graf screws is likely to cause degeneration elsewhere in the spine, and I would find that the defendant was under an obligation to inform the plaintiff of such things.
In the circumstances there is no reason not to accept the plaintiff's avowal that if disclosure had been made he would not have undergone that lumbar procedure.
Breach of duty on the part of the defendant ought therefore be held to have caused any consequence flowing from the use of the Graf procedure.
The carrying out of the Graf procedure did not, however, constitute a battery, I would find.
In that regard it follows from Rogers, given the approval there to Chatterton, that a court should be slow to make such a finding, where there has been broad consent to treatment, and I would find the consent given here to a lumbar fusion was sufficiently broad to encompass the Graf procedure, when considered from the point of view of battery, as opposed to duty of care.

Injury

In regard to the thoraco-lumbar junction there was no plea that the plaintiff failed to mitigate any loss by subsequently having the operation, or that he could still do so, although it was raised in closing.
The onus is nonetheless still on the plaintiff to make good his plea that through the defendant's negligence he "lost all chance of recovery from his pre‑operative symptoms", that being denied.
The plaintiff's evidence to that effect, including his statement that he did not want any more operations, was not challenged.
Mr Ruff of course was called by the defendant, and the statement in his 1997 report that surgery had no role to play in the plaintiff's treatment adduced, without enquiry as to whether the position might have been different earlier, or whether it still might change.
Having regard to the above I do not think that it can now be said that the plaintiff ought to have subsequently undergone the operation, or should do so in the future, and find the plaintiff has discharged the onus on him.
What is complained of course is the loss of the chance that had the defendant carried out a fusion of the thoraco-lumbar junction the plaintiff's condition would have improved, and it is that which represents the damage said to have been sustained.
The plaintiff, in order to make good his cause of action, must establish on the balance of probabilities that some damage was suffered, and here that means the plaintiff must show that it was more probable than not that had the defendant carried out the operation the plaintiff's condition would have been improved thereby, to at least some extent.
In Sellars v Adelaide Petroleum (1994) 179 CLR 332, 349-355 Mason CJ and Dawson, Toohey and Gaudron JJ, following a review of the authorities, drew a distinction between hypothetical facts which related to causation and those which involved damage, and said that a claimant "must prove on the balance of probabilities that he or she has sustained some loss or damage".
If a claimant succeeds in doing that damages are assessed by reference to the extent of the chance, whatever that might be, provided it is not trifling, and not by reference to the balance of probability: Malec v JC HuttonPty Ltd (1990) 169 CLR 638, 642-643.
Here, the position is not straightforward. Given however my finding as to the defendant's position, and Mr Ruff's acknowledgement that in appropriate circumstances a view in favour of surgery would not be unreasonable I would find that on balance the plaintiff was denied some improvement in his back symptoms and hence did suffer damage as a result of the defendant's breach.
The likelihood that the plaintiff would have experienced any significant improvement in his symptoms is however low, given Mr Ruff's evidence, and any assessment must reflect that.
It is also the case that the plaintiff informed Mr Slinger in March 1999 that he had experienced "little, if any pain" in that area since the time of the procedure.
In the light of my findings as to the reliability of the plaintiff's evidence generally, and given the above, I consider that the allowance for the loss of the chance of improvement ought be a modest one only.
So far as the plaintiff's lumbar spine is concerned, I would not find that the plaintiff's symptoms were initially exacerbated by the operation, but rather that he claimed some subjective improvement in his symptoms, as the defendant's records attest, and in 1994 claimed to be unchanged as a consequence of it, as Mr Bath recorded.
The plaintiff has experienced some deterioration in his pain level since that time, as Mr Ruff said, although the extent of that deterioration cannot be accurately determined, in the absence of reliance on the plaintiff's evidence.
Further, the plaintiff's increased pain is associated with "an altered illness response" as Mr Ruff said, of unknown origin, and nothing has been put forward to associate that with the operation.
The plaintiff's pre-existing medical condition, including the pathology that led to the 1976 operation, the effect of the 1988 accident, and lumbar spondylosis, may also be the cause of any increased symptoms, as Mr Ruff said.
However, the doctor as stated also expressed the view that the placement of the pedicle screws would influence the facet joints at the level above, and degenerative change there, and that a "small component" of the plaintiff's disability had been "contributed to by his surgeries", and I find the Graf procedure did, in its effect, eventually although not immediately have some effect on the condition of the plaintiff's back, that being to the extent described by Mr Ruff.
That procedure was of course reversed in 1996.
As to the total injury sustained by the plaintiff as a consequence of the defendant's negligence in failing to fuse the plaintiff's thoraco-lumbar junction and in operating on the plaintiff's lumber spine and in carrying out a Graf procedure there it follows from the above that I do not find that such was substantial.
I should say that this is not a case of the kind described in Watts v Rake (1960) 108 CLR 158, or Purkess v Crittenden (1965) 114 CLR 164, for here the plaintiff has not "made out a prima facie case that incapacity has resulted from the defendant's negligence" (Purkess, 168).
The plaintiff here had pre-existing conditions which were sufficient to produce symptoms, and did at the time of the operation, and continued to do so, albeit not the extent alleged by him.
In any event the evidence of Mr Ruff would permit the necessary exercise to be undertaken, as set out above.

Assessment of damages

In relation to damages for pain and suffering and loss of amenities, which should include a significant component for those things in relation to the 1996 surgery for removal of the Graf instrumentation, I allow $30,000.
I also allow $2,000 in special damages, which I was informed had been agreed in that sum.
The plaintiff also claims under two other heads of loss, namely loss of economic capacity and gratuitous assistance.
As to loss of economic capacity, during the three year period between the 1998 motor vehicle accident and the 1991 surgery the plaintiff carried out part‑time driving work for about a year, which he was obliged to stop due to his back, and work coating pumps, which exacerbated his symptoms so that he was unable to perform and lost the job as a result.
The plaintiff did not return to work following his recovery from the 1991 surgery, although Mr Bath considered in 1994 he was capable of lighter work.
The plaintiff did return to work in about 1996, doing light laboratory work and also working as a storeman, for a relatively short period of time.
There is nothing readily distinguishable between the plaintiff's work performance before and after the surgery, apart from the fact that he has not now worked for some years.
Further, it is the case that the assessment of loss of bodily function made by Mr Genat prior to the operation in 1991, and that made by Mr Ruff in 1997 are similar, whilst degeneration is the likely cause of any worsening.
Mr Ruff, as stated, considers the plaintiff has a capacity for work, and I am not able to rely on the plaintiff's own views as to his position.
The plaintiff does have an incapacity, but that, as I have found, is principally due to the natural course of his pre‑existing condition and injury and I am not of the view that the defendant's contribution to the plaintiff's condition is such that the position in the past would have been significantly different, or would be in the future, absent that contribution.
An award for loss of economic capacity is to be made where such loss is or might be productive of financial loss: Graham v Baker (1961) 106 CLR 340.
In the circumstances I do not consider that it is possible to realistically approach the matter other than by way of broad assessment, and for the reasons outlined any award can only be modest. I allow $40,000.
I would add that if a calculation is made, based on a wage of $400 per week net, of unearned income to date, and of such income to age 65 years, discounted for early receipt, discounted by 5 per cent to reflect the ordinary contingencies of life, but not discounted to reflect retained earning capacity, the above allowance represents a little more than 10 per cent of the total, which is reasonable.
Given the nature of the assessment any allowance for interest on past loss is necessarily arbitrary and I would allow $10,000.
In relation to the plaintiff's claim for the notional cost of voluntary assistance I do not find that the defendant's contribution to the plaintiff's condition has made any meaningful change to the plaintiff's ability to care for himself or that there was any likelihood the plaintiff's position would otherwise have been different, or will be in the future, and accordingly am unable to make any award under this head.

Summary

The plaintiff is entitled to an award of damages against the defendant in the sum of $82,000.