Wright v Minister for Health - [2016] WADC 93

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WRIGHT -v- MINISTER FOR HEALTH [2016] WADC 93

CORAM: SWEENEY DCJ

HEARD: 20-22 & 25-26 MAY 2015

DELIVERED : 23 JUNE 2016

FILE NO/S: CIV 3246 of 2013

BETWEEN: KRISTOFFER WRIGHT
Plaintiff
AND
MINISTER FOR HEALTH
Defendant

Catchwords:

Medical negligence - Widely accepted practice - Failure to perform surgery - Delay in surgery

Turns on its own facts

Legislation:

Civil Liability Act 2002 s 5PB

Result:

Plaintiff's case dismissed

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Slater & Gordon
Defendant: SRB Legal

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

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 ALL ER 118
Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151; [1997] 4 ALL ER 771; [1998] AC 232
Bonnington Castings v Wardlaw [1956] UKHL 1; [1956] AC 613
Martin v Minister for Health [2016] WADC 15
Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479
Strong v Woolworths Ltd [2012] HCA 5
Woods v Director of Public Prosecutions (WA) (2008) 38 WAR 217

Table of Contents

Introduction

Common ground

The witnesses

General legal principles as to duty of care

Key issues to be determined

Conservative versus surgical treatment for calcaneal fractures

The medical literature

The expert witnesses' evidence concerning conservative versus surgical treatment generally

Mr Reza Salleh
Mr Tony Robinson
Professor Skirving

How the plaintiff's fracture has healed

What opportunity was there for the surgery to be performed by the defendant's staff?

Was the failure to operate negligent?

Mr Reza Salleh's evidence
Dr Kulaendra
Professor Allan Skirving's evidence
Mr Lam's evidence

Did Mr Lam examine the plaintiff's foot on 13 December 2010 or 17 January 2011?

The deterioration in the foot

Conclusions about the failure to perform surgery as at 17 January 2011

Failure to call for CT scans on 16 November 2010 and 17 January 2011

The discharge of the plaintiff from the outpatient clinic on 17 January 2011

General principles as to causation

Findings on causation - plaintiff's case fails

Did the delay in surgery from 16 November 2010 result in the articular surface damage?

Some comments on the evidence about damages

Provisional findings on quantum

Non-pecuniary loss

Special damages

Future medical expenses

Past care and assistance

Travel expenses past and future

Past loss of earnings

Loss of earning capacity

SWEENEY DCJ:

Introduction

On 12 October 2010, on his 25th birthday, the plaintiff was seriously injured in a motorcycle accident. He had gone out to dinner in the evening and had been drinking alcohol and had caught a taxi home. Unfortunately, in the early hours of the morning and while still well under the influence of alcohol, he made the disastrous decision to go for a drive on his motorbike. He does not remember the accident. He was seriously injured. He was treated at Fremantle Hospital and afterwards at its outpatient clinic.
This case concerns one of his numerous injuries: his fractured calcaneus (sometimes referred to as 'calcaneum', an interchangeable term) or heel bone. It is the largest bone in the foot, and sits below and to the rear of the talus bone. It contributes joint surfaces where it is adjacent to other bones, including three joint surfaces to the talus. So it provides support to the base of the talus bone, while also playing a part in movement of the subtalar joint between it and the talus bone. The subtalar joint is the joint which allows one to walk on uneven surfaces, enabling the foot to twist inwards and outwards. The calcaneus plays an important role in stabilising the foot during movement.
The fracture of the plaintiff's calcaneus was severe. One expert witness agreed it was 'smashed up'. Another described it as 'mushed' and 'crushed into multiple little pieces'. The fracture extended into the anterior subtalar process, being one of the portions of the talus bone which meets the calcaneus. The fracture was therefore intra-articular – moving into and involving the joint. That also made the injury more serious. The calcaneocuboid joint was slightly widened, indicating ligamentous injury.
The most commonly used system for grading intra-articular fractures according to their severity is the Sander's RW classification system. It takes into account the number of fracture lines which enter the joint, the degree of displacement, and various radiological parameters which indicate the severity of the displacement. As these fractures go, this one was classified by one expert witness as a Sanders type-IV fracture – the most serious type.
The fractured heel bone was treated conservatively by the staff of the Fremantle Hospital. In other words, the plaintiff did not have surgery.
He alleges that, following an initial period during which surgery could not have been performed, his fractured heel ought to have been surgically corrected. He claims the continued conservative treatment of his injury was therefore negligent.
Ultimately, after he had been discharged from the outpatient clinic, he arranged through his general practitioner to have surgery performed privately. He claims, however, that the failure on the part of the defendant's staff to perform that surgery in a timely fashion has left him in a worse state than if it had been performed earlier. He therefore claims damages.
The defendant counters that conservative treatment of the heel fracture was in accordance with a practice that was, at the time, widely (if not unanimously) accepted within the medical profession as competent professional practice and therefore was not negligent pursuant to s 5PB of the Civil Liability Act 2002.
For the reasons which appear below, the plaintiff's case is dismissed.

Common ground

A lot of the plaintiff's case as pleaded is admitted by the defendant, or not placed in issue because it is based in medical notes. What follows is either common ground between the parties, or alternatively not in dispute.
The plaintiff suffered serious injuries in the accident: fractures of his spinous processes T5 – 12 (the bony projection on each side of the vertebra where the muscles and ligaments attach), a fracture of his transverse process at L2 (the wing-like projection from the vertebra), the left calcaneal fracture and associated soft tissue injuries, a right knee injury including a fully ruptured anterior cruciate ligament, a torn medial cruciate ligament and a torn meniscus, a right ankle soft tissue injury and serious contaminated abrasions to his limbs.
Around 1.19 am he was taken to the emergency department at Fremantle Hospital. A member of the nursing staff noted his injuries as including a deformed left ankle and abrasions to both knees and both arms. His abrasions were treated and thereafter he underwent a series of x‑rays and CT scans.
At 2.52 am he underwent an x-ray of his left ankle, the report noting 'There is a comminuted intra-articular fracture through the calcaneus. No significant depression of Bohler's angle is seen …'.
Bohler's angle is one of two anatomical angles (the other being the critical angle) by which alignment of the calcaneus is measured. It is therefore one of two significant measurements giving guide to the degree of displacement. Two intersecting lines are drawn from fixed points on the calcaneus and the angle between them is known as Bohler's angle. In an anatomically aligned calcaneus, that angle ranges from 25 – 40 degrees. A lesser value indicates a fracture, because the heel bottoms or flattens out, impacting on one of the lines and decreasing, or lowering, the angle between them. The lower the Bohler's angle, the more serious the displacement. According to Mr Tony Robinson, one of the expert witnesses in this case, one of the aims of surgery is to restore the Bohler's angle.
An angle within normal range, however, does not exclude a fracture. Plainly from the above x-ray report, the Bohler's angle had not significantly lowered, yet the calcaneus was still very badly fractured.
At about 2.55 am the plaintiff underwent a CT scan of his left ankle.
The report from that CT scan (produced by the same radiologist who did the x-ray) noted:
There is a severely comminuted fracture of the calcaneus. It involves the body which extends posteriorly to involve the posterior subtalar joint. Minor displaced fracture of the sustentaculum tali is also noted. There is marked posterior displacement of the multiple fractures segments. There is a comminuted and minimally displaced fracture of the anterior subtalar process with multiple flecks of bone demonstrated within the anterior subtalar joint. No other talar fracture … No subtalar joint dislocation. There is a minor widening of the calcaneocuboid joint suggestive of ligamentous injury.
At around 4.45 am hospital staff applied plaster of Paris and a back slab to his left lower leg. Around 7.20 am an orthopaedic registrar reviewed him and noted that his injuries were a fracture of the spinous process at T5 to T12, a fracture of the transverse process at L2, a left calcaneal fracture, a right knee injury including abrasions and ligamentous injuries and a right ankle injury, being a soft tissue injury with associated swelling.
Later that afternoon around 2.00 pm he was reviewed by Dr Howe, and was noted to have swelling and bruising to his left foot, but to be able to actively and passively extend his toes. At 2.25 pm he was complaining of pain at a level of nine out of 10 and the plaster cast to his left lower leg was cut open due to pain around the heel and his leg was elevated on a James pillow.
The following day at around noon Dr Howe had a discussion with Mr Lam, orthopaedic surgeon, to the effect that the plaintiff was not to have a plaster to his left calcaneum and was instead to wear a cryocuff to his left foot. Mr Lam was a witness for the defendant in this case. A cryocuff is a removable fabric boot that has a layer which can be filled with ice water, providing both cold therapy and controlled compression to reduce swelling and pain. The plan was that, upon his discharge, the cryocuff would be changed to a CAM boot. A CAM boot is a large plastic boot, with a rubber sole on the bottom, which encases the foot and calf and, between the foot itself and the plastic boot is a soft interior pillow, which is inflated to immobilise the ankle and support the foot.
On 16 October 2010 around 6.40 am a nurse noted that the plaintiff's left leg remained swollen, and remained elevated on a James pillow. At 10.20 pm that same day he was reviewed by an orthopaedic registrar. The plaintiff's left foot was noted to be swollen, bruised and bearing multiple blisters and the treatment plan was to keep that foot elevated.
'Fracture blisters' are apparently very common with major fractures when there is associated swelling. Excessive swelling causes the superficial skin planes to separate, fluid leaks in and a blister forms. They are not like everyday blisters caused by friction. They can be huge.
At 9.00 pm the following day, a nurse noted that the plaintiff's left foot was still swollen and the foot was elevated with ice applied.
On 18 October 2010 at noon the plaintiff underwent review by Dr Pittorino, an orthopaedic registrar, who noted that the plaintiff was to undergo outpatient review at Mr Lam's orthopaedic clinic four weeks after discharge. The following day, 19 October 2010, he was allowed to go home under the care of the Hospital in the Home Service (HITH) of Fremantle Hospital, under Mr Lam. He was discharged in a wheelchair, with a CAM boot on his left foot and a brace on his knee. Eventually he would progress to crutches.
At noon on that day he was reviewed by a nurse from HITH and was noted to have intact large blisters under the tegaderm dressing on his left foot. He was advised by the nurse to be non‑weight-bearing on his left leg for eight weeks.
His general practitioners would prescribe painkillers for him in the weeks that followed.
Six days later, on 25 October 2010, a nurse with HITH expressed concern (in notes) with the swelling to the plaintiff's left ankle and arranged for him to attend the HITH outpatient's clinic. The next day he attended Dr Pittorino at that clinic. The doctor noted that the plaintiff's left ankle was red, swollen and exudating, with a large blistered area having burst. The area was swabbed and the plaintiff was prescribed antibiotics. The following day, and also on 29 October 2010, a HITH nurse called upon the plaintiff at home and re‑dressed his wounds, including the wound to his left ankle. In fact, as will emerge later in the judgment, he had two areas of wounds or abrasions to his ankle.
On 31 October 2010 a nurse from HITH called upon the plaintiff at home and noted that the wound to his left ankle was still slightly sloughy. On 2 November 2010 he was visited by a nurse from HITH at home who noted that the wound to his left ankle was no longer sloughy. On 4 November 2010 and again on 6 November 2010 the plaintiff was called upon by a nurse from HITH who noted that the wound now looked clean and granulated to the surface. However, on 8 November 2010, when the plaintiff was again visited by a nurse from HITH, it was noted that the wound to his left ankle was swollen with exudate. On 12 November 2010 the visiting nurse from HITH noted that the wound was almost healed with nil ooze. Some of this common ground is simplistic as will emerge later when I analyse what opportunity there was to perform surgery.
There is no complaint about any of that treatment to that point.
On 16 November 2010 the plaintiff attended the outpatient clinic at Fremantle Hospital and was reviewed by an orthopaedic registrar who noted that he was now four weeks post-left calcaneus injury. The registrar noted that, on examination, there was still mild swelling of the left ankle and tenderness, but the plaintiff's skin was clear.
The left ankle was x-rayed, and the report noted:
Compared with 13/10/2010. Markedly comminuted fracture of the calcaneus is noted. Allowing for slight differences in projection, no significant change in fracture alignment. No definite healing response is seen.
The registrar saw the x-ray and noted 'calcaneal (fracture) has opened inferiorly'. The treatment plan recorded that day was that the plaintiff was to continue non-weight bearing on his left leg and use the CAM boot for support and immobilisation of the left heel. The plaintiff testified that he was still in a wheelchair at that stage. He was to be reviewed in four weeks' time. That same day, he commenced physiotherapy at Bentley Hospital which was organised by Fremantle Hospital.
On 1 December 2010 the plaintiff saw one of his general practitioners, Dr Aravinth. Dr Aravinth noted that the plaintiff had been in a motorbike accident, made reference to his knee injury and the fact that it was being managed with a hinged brace, and noted the plaintiff's frustration because he wanted to return to work and the gym. A notation was made that an opinion should be sought as to whether his knee could be repaired earlier. He was referred to Mr Anderson, an orthopaedic surgeon. No note was made concerning the plaintiff's heel injury at that time.
On 8 December the plaintiff returned to Dr Aravinth who noted that the plaintiff had been unable to get in to see Mr Anderson. Dr Aravinth wrote a letter of referral to Mr Ben Witte, orthopaedic surgeon, concerning the knee injuries.
On 13 December 2010 the plaintiff attended Mr Lam, orthopaedic surgeon, at the outpatient clinic. It is accepted that the plaintiff did not undergo an x‑ray or CT scan on that date. It is in issue whether Mr Lam physically examined his foot on that date, or not. The plaintiff said he was on crutches by the time of that meeting.
The only note of that consultation is by way of a letter written by Mr Lam to Dr Kulaendra of the same date. Dr Kulaendra is another general practitioner who works in the same practice as Dr Aravinth. He was a witness for the plaintiff in this case. Mr Lam wrote that the plaintiff was making 'steady progress' in relation to both his knee and heel injuries and would commence weight-bearing on his left heel. He was to be seen again in four weeks' time and Mr Lam planned to put him on an expedited wait-list for surgery to his knee.
On 7 January 2011 the plaintiff saw Mr Witte, concerning his right knee. Mr Witte's brief reports and documents were all tendered by consent with no need for him to be called to testify. The plaintiff completed a 'Knee Assessment Form', undated but presumably on that same day. He presented on the strength of the form alone as a picture of health, describing himself as being 'fit and well', not a smoker, not limping and having no pain going up or down stairs, walking on a flat surface, standing, sitting or lying or at night in bed. These questions were all aimed at an assessment of his knee of course. He described varying degrees of disability arising from his knee, from 'none' to 'moderate' depending upon the activity. He stated that, after his knee treatment, he wanted to return to the 'gym, running, squash'.
Mr Witte diagnosed him with a lax anterior cruciate ligament, but found that his medial cruciate ligament had healed. The plaintiff had been treated with a hinged knee brace for about six weeks post-accident and had been mobilising since then. Mr Witte remarked in his letter to Dr Aravinth that the plaintiff's left calcaneal fracture 'is still causing him to limp'. Mr Witte also commented that 'Kris is aware that he may be able to manage without an ACL reconstruction, but should not return to jumping and twisting sports'.
The plaintiff wanted to proceed with the ACL reconstruction and Mr Witte made arrangements for the surgery.
On 17 January 2011 the plaintiff again attended Mr Lam at the outpatient clinic. It is accepted that the plaintiff did not undergo an x‑ray or a CT scan on that date. It is in issue as to whether he was physically examined by Mr Lam on that date. The only note of that consultation consists of a letter written by Dr Lam to Dr Kulaendra on the same date as follows:
Kristoffer is up on his feet again now. The left calcaneal fracture is understandably still giving him problems. He has organised his own anterior cruciate ligament surgery for the right ACL tear under my colleague Ben Witte, which is due to happen early February at St John of God Murdoch. I have given him the relevant work certificates and I have discharged him from the clinic.
On that date Dr Lam discharged the patient from the outpatient clinic.
It is not in issue that on 1 or 2 February 2011, the plaintiff underwent the anticipated surgery on his right knee.
On 8 February, he saw Dr Gabriel (another of the general practitioners who all work at the same practice). Dr Gabriel noted the recent arthroscopy on the plaintiff's knee and noted that he had 'mild knee swelling' and that his wounds were 'healing ok'. He was advised to rest, use hot packs and anti‑inflammatory drugs after physiotherapy and to undergo mild knee exercise. No reference was made to his heel at that time.
On 11 February 2011, the plaintiff consulted Dr Aravinth, who noted that the plaintiff's knee had been operated on and 'feels better'. He also noted that he had that day written to Mr Salleh, a foot and ankle specialist orthopaedic surgeon, referring the plaintiff to him in relation to the calcaneal fracture. Mr Salleh was a witness for the plaintiff in this case. It took just over a month for the plaintiff to be able to get an appointment to see Mr Salleh.
On 15 February 2011, Mr Witte wrote to Dr Aravinth that the plaintiff was 'doing well', that his wounds to his right knee were healing well and that he was 'going to continue with his rehab'.
On 2 March 2011 the plaintiff again saw Dr Aravinth, who noted that the problem with the heel was 'still persisting' and requested an up-to-date x-ray.

On 15 March 2011 the plaintiff had his first appointment with Mr Salleh. The previous day the plaintiff had attended for a CT scan with 3D reconstruction. Mr Salleh's assessment of the situation was that the plaintiff was suffering from a fixed varus hind foot deformity with generalised swelling, tenderness and synovitis and stiffness of movement at the subtalar joint.
Mr Salleh testified that the range of normal anatomical alignment for the heel bone is a neutral position, dropping straight down, or up to seven degrees 'valgus' position - turning outwards. In other words, it should be straight or very slightly outward turning. He testified that, by contrast, the plaintiff's heel was in significant 'varus' position – turning inwards. Mr Salleh explained that when the calcaneum is in varus position, it is effectively shortened 'longitudinally' – which, in this context, means horizontally – altering the patient's gait, stance and heel strike.
On 21 March 2011, the plaintiff consulted Dr Kulaendra, who noted that the knee reconstruction surgery was six weeks ago and that the plaintiff was now 'walking ok with physio'. He also noted that the plaintiff was 'still in considerable pain L heel'.
The plaintiff attended Mr Salleh again on 29 March 2011, who advised him that he required surgery by way of an open reduction and internal fixation of the calcaneal fracture with graft harvested from the calcaneum. No criticism is made by the defendant of Mr Salleh's diagnosis or approach.
The very next day, Mr Witte wrote of the plaintiff that he was still 'doing well', that Mr Witte had encouraged him to continue with his rehab and that he would review him later in the year 'to discuss return to sport'.
On 28 April 2011 Mr Salleh performed surgery. He reduced the calcaneal fracture to a better anatomical position, used two bone grafts from the tibial crest, and stabilised it with two cannulated screws, resulting, he testified, in significant improvement of alignment. Mr Robinson, orthopaedic surgeon, who was called as an expert witness for the plaintiff in this case, explained that bone graft is resorted to where an area of bone is either missing or is too fragmented for repair. Mr Salleh had intended initially to graft using tissue from the calcaneum, but found there was insufficient bone to do so. The aim of the surgery was to reduce the varus position of the hind foot and to restore alignment.
In June 2011, while he was still recovering from his foot surgery, the plaintiff was diagnosed with Hodgkin's lymphoma which of course had no connection whatsoever to his injuries. He underwent surgery on 27 July 2011 and then chemotherapy and radiotherapy. He returned to work on 1 April 2012. He was unfit to work during that period on account of that illness.

The witnesses

The plaintiff testified, and also called five witnesses: his mother Mrs Maddelena Wright, his wife Mrs Danielle Wright, a work colleague Mr David MacDonald, one of his general practitioners Dr Velupillay Kulaendra, an orthopaedic surgeon Mr Tony Robinson, and his treating surgeon Mr Reza Salleh, also an orthopaedic surgeon.
Mr Salleh testified as both an eyewitness, having performed the eventual surgery on the plaintiff's heel, and as an expert witness. The brief reports of Mr Ben Witte, who performed surgery on the plaintiff's right knee, were tendered by consent.
A number of documents, including the notes of the physiotherapist who treated the plaintiff, and the notes from the general practice, of which Dr Kulaendra was a member, were also tendered.
The defendant called Mr Li-on Lam, orthopaedic surgeon, in his capacity as eyewitness as the doctor who managed the plaintiff's case while he was under the care of the hospital, and Professor Allan Skirving, as an independent expert witness.

General legal principles as to duty of care

The plaintiff's case against the defendant is based in negligence. The management and control of Fremantle Hospital was vested in the defendant pursuant to s 7 of the Hospitals and Health Services Act 1927. The various staff by way of nurses, registrars and orthopaedic surgeons who saw the plaintiff, either at Fremantle Hospital in the emergency section, or on the ward, or as an outpatient at the clinic, were in the employ of the defendant. It is uncontroversial that the defendant was liable for the acts and omissions of its staff.
It is admitted that the defendant was under a duty of care towards the plaintiff to exercise reasonable care and skill in the provision of medical advice and treatment provided to the plaintiff at the hospital and as an outpatient at the clinic. The common law imposes that duty of care upon a medical practitioner in any event. The standard of reasonable care and skill required at common law is that of the ordinary skilled person exercising and professing to have special skill: Rogers v Whittaker [1992] HCA 58 [5] ‑ [6]; (1992) 175 CLR 479, 473.
The precise scope of the duty of care is not admitted although, from the way in which the trial was conducted, it is not in issue that the duty of care included conducting appropriate investigations, correctly diagnosing the plaintiff's medical condition and providing him with the appropriate treatment.
This is a case to which the Civil Liability Act 2002 (the Act) applies. Section 5B provides the general principles in relation to whether or not the defendant was under a duty of care:
5B.General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless —
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
In the manner in which this case was conducted, it is not in issue that there was a foreseeable and not insignificant risk of harm to the plaintiff if the defendant did not conduct appropriate investigations, correctly diagnose the plaintiff's medical condition and provide him with the appropriate treatment. The defendant raises no argument concerning the burden of taking precautions to avoid any such risk, or the social utility of the activity which creates the risk of harm.
This case was really fought on the particular principles applicable to health professionals, which are contained in s 5PB of the Act. It provides:
5PB.Standard of care for health professionals
(1)An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional's peers as competent professional practice.
(2)….
(3)Subsection (1) applies even if another practice that is widely accepted by the health professional's peers as competent professional practice differs from or conflicts with the practice in accordance with which the health professional acted or omitted to do something.
(4)Nothing in subsection (1) prevents a health professional from being liable for negligence if the practice in accordance with which the health professional acted or omitted to do something is, in the circumstances of the particular case, so unreasonable that no reasonable health professional in the health professional's position could have acted or omitted to do something in accordance with that practice.
(5)A practice does not have to be universally accepted as competent professional practice to be considered widely accepted as competent professional practice.
(6)In determining liability for damages for harm caused by the fault of a health professional, the plaintiff always bears the onus of proving, on the balance of probabilities, that the applicable standard of care (whether under this section or any other law) was breached by the defendant.
In order to succeed in his claim, the onus is therefore upon the plaintiff to prove that the acts (or, more relevantly in this case, the omissions) of the defendant's staff in failing to operate (or arrange for another to operate) on the left calcaneal fracture were negligent. It is not necessary in this case to debate whether the defendant bears some evidentiary onus. As will become apparent from my reasoning, any evidentiary onus on the part of the defendant was discharged. The plaintiff bears the overall legal onus of proving his case.
Part of this allegation of negligence encompasses Mr Lam's failure to call for a CT scan, when the x-ray on 16 November 2010 showed a markedly displaced fracture with no change in alignment from the previous imaging taken on 13 October 2010, and his failure to call for a CT scan or MRI scan on 17 January 2011. The allegation is that, in failing to call for further imaging in order to determine the degree of healing and the degree of displacement, he failed to even consider performing surgery, or referring the plaintiff to a specialist for that purpose.
The essential allegation, however, is that surgery ought to have been performed and that, in failing to perform that surgery or refer the plaintiff to a specialist, both the registrar who saw the plaintiff on 16 November 2010 at the outpatient clinic, and Mr Lam who saw the plaintiff subsequently on 13 December 2010 and 17 January 2011 (and therefore the defendant), failed to provide appropriate treatment. The plaintiff pleads that the surgery should have been performed from 16 November 2010, 13 December 2010, and/or 17 January 2011.
The defendant pleads that the decision on 13 October 2010 to treat the plaintiff's calcaneal fracture conservatively, and the further decisions made on 16 November 2010, 13 December 2010 and 17 January 2011 to continue that conservative treatment, were in accordance with a practice that, at the time of those decisions, was widely accepted by orthopaedic surgeons as competent professional practice. In other words, the defendant relies upon s 5PB(1). It is not suggested by the defendant that there is another basis upon which the acts or omissions were not negligent.
It is for the plaintiff to disprove that contention. He will have done so if he proves either that, at the time, there was no widely accepted practice of conservative treatment of fractures such as the one this plaintiff suffered, or if there was, the circumstances of this case are such that no reasonable orthopaedic surgeon would have:
(a)failed to call for further imaging of the heel in November 2010 and January 2011;
(b)failed to consider surgery; and
(c)continued to treated this fracture conservatively.
There is an obvious tension between s 5 PB (1) and s 5PB(4). Section 5PB(4) contemplates that a medical practitioner could act or omit to do something 'so unreasonable that no reasonable health professional … could have acted or omitted to do' that something while, at the same time, acting in accordance with a practice 'that at the time of the act or omission, is widely accepted by the health professionals peers as competent professional practice'.
One possible interpretation is to view s 5PB (1) as focusing on the practice generally, in a broad sense, while s 5PB (4) focuses on 'the circumstances of the particular case' and the application of that practice to the specific facts at hand. The difficulty with that interpretation, however, is that any sensible interpretation of s 5PB (1) would necessitate an application of the practice to the facts at hand in any event. A practice that is widely accepted by the health professional's peers as competent professional practice could not be so regarded if the practice was applied in a specific case to which it had no proper application. Section 5PB(4) then would seem to add little to s 5PB (1).
As Catherine Mah states in her article 'A critical evaluation of the professional practice defence in the Civil Liability Act' ([2014] UWA Law Rw 4; (2014) 37(2) University of Western Australia Law Review 74 at 92):
… the notion that what the health professional did was 'so unreasonable' seems to directly conflict with the underlying requirement of the WA defence that the practice must be 'widely held' by a respected body of practitioners. Thus, this exception appears to define itself out of operation given the content of the defence.
The other possible interpretation of the two subsections is that s5PB (1) defines negligence not according to the court's view of reasonable conduct, but according to the view of the health professional's peers, or at least a sufficient number of them so as to amount to wide acceptance of the conduct, whereas s 5PB(4) provides an exception if the court forms the view that, notwithstanding that the practice has received wide acceptance, its application to the case at hand was so unreasonable that no reasonable health professional could have acted or omitted to do something in accordance with that practice.
On that interpretation, s 5PB(4) is a 'checks and balances' section, designed to give the protection of the court against an accepted practice that is nevertheless unreasonable. In the case of well-qualified medical experts, one would expect that to be a rare case, but the definition of 'health professional' in the Act is broad, and extends to a person who 'practices a discipline or profession in the health area that involves the application of a body of learning': s 5PA.
There appears to be very little authority on s 5PB(4). Bowden DCJ briefly considered the section at first instance in Martin v Minister for Health [2016] WADC 15, but the issue his Honour was really considering was whether there was a shift in the onus of proof.
Section 19 of the Interpretation Act 1984 (WA) permits the use of extrinsic materials in construing the meaning of a provision. Accordingly, I have had regard to the explanatory memorandum and the second reading speeches.
Section 5 PB, which is contained in pt 1A div 7 of the Civil Lability Act, was inserted by the Civil Liability Amendment Act 2004. The explanatory memorandum to the bill explains:
Clause 5 inserts into Part 1A a new Division 7 the effect of which will be that the liability in negligence of health professionals for treatment and diagnosis will ordinarily be determined, not according to the Court's view of reasonable conduct (which is the position in Australia following the decision of the High Court in Rogers v Whittaker (1992) 175 CLR 479), but according to whether the conduct would be widely accepted as reasonable by the professionals peers (which has been the legal position in the UK following the decision of Bolam v Friern Hospital Management Committee (1957) 1 WLR 582) …
The Bolam test derives from a direction to the jury given by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, 587; [1957] 2 ALL ER 118, 122. It states that a doctor:
… is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
… Putting it the other way around, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.
The explanatory memorandum to the bill continues:
Section 5PB provides that the conduct of a health professional cannot be characterised as negligent if it was in accordance with a practice widely accepted by the health professional peers as competent. The principle applies notwithstanding that the conduct may be inconsistent with an alternative practice also widely accepted by the professional's peers as competent. The onus of proving negligence remains on the plaintiff.
There are two major exceptions to the application of the principle. The first is that the Court will not be bound by peers' views as to the reasonableness of a defendant health practitioner's conduct if it forms the opinion that the conduct was so unreasonable that no reasonable practitioner in the defendant's position could have acted in that way. This qualification to the principle reflects the position arrived at by the common law in the UK. The second exception is that the principle does not apply if the relevant conduct relates to informing the patient of the medical risks associated with proposed treatment or a proposed diagnostic procedure.
These two provisos ensure a proper balance is struck between the interests of health practitioners and the interests of the patients they are treating.
The second exception has no application to this case. This is not a failure to inform case.
In the second reading speech, the Hon. Mr Griffiths referred to the UK modified Bolam test:
Part 2 of the bill will introduce a new evidentiary principle, similar to, but not identical with, the test applied in the United Kingdom and derived from the case of Bolam v Friern Hospital Management Committee (1957) 1 WLR 582, which will preclude a finding of negligence against a health practitioner when the relevant treatment or diagnosis was in accordance with a practice widely accepted by the practitioner's peers as competent professional practice. The amendments – save that they extend beyond medical practitioners to all registered health practitioners – give effect to a recommendation of the Review of the Law of Negligence chaired by Hon Justice David Ipp. That recommendation, or variations of it, has now been legislatively introduced in all Australian states… consistent with the common law position in the United Kingdom, it is subject to the significant safeguard that a court will not be bound by the opinion of a body of professional peers if it forms the view that the conduct was so unreasonable that no reasonable practitioner in the defendant practitioner's position could have acted in accordance with that practice. This part of the Bill achieves an appropriate balance between the interests of health practitioners and the interest of their patients, in a fair, prompt and predictable assessment of whether, in any particular case, the practitioner's treatment or diagnosis of the patient met acceptable clinical standards.
The 'modified Bolam test' changes the standard of care set out in the Bolam test and derives from the decision of Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151; [1997] 4 ALL ER 771; [1998] AC 232. It provides that professional practice will not qualify as reasonable peer opinion unless it can withstand 'logical analysis':
… the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J … stated that the defendant had to have acted in accordance with the practice accepted as proper by a 'responsible body of medical men'… The use of these adjectives – responsible, reasonable and respectable – all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.
…
These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrate that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.
I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. … it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views, both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed (per Lord Browne-Wilkinson at 241-3).

The express language of s 5PB(4) requires the conduct to be not merely 'unreasonable' but 'so unreasonable that no reasonable health professional in the health professional's position could have acted or omitted to do something in accordance with that practice'. It is not necessary for the purposes of this judgment to consider whether there is any difference in substance between the differently worded exceptions in the various civil liability Acts amongst the States.
Having reviewed those extrinsic materials, I conclude that my first potential interpretation of s 5PB(4) as focusing on the particular circumstances of the case, as opposed to the broad general practice, does not capture the essential difference between the two subsections. Section 5PB(1) already requires focus on the particular circumstances of the case.
Rather, s 5PB (4) provides the exception to s 5PB (1) such that, in a case of such unreasonableness as is contemplated by s 5PB (4), the court will apply its own standards of reasonableness such that a medical practitioner can be found negligent even if he has acted in accordance with a practice that is widely accepted by his peers. Factually, however, as has been noted, it will be an exceptional case where a qualified medical practitioner acts in accordance with a practice that is widely accepted by his peers and yet acts in a manner that is so unreasonable that no reasonable health professional in his position could have so acted.
As to the meaning of the expression 'widely accepted', in accordance with the ordinary meaning of such words, I take that to contemplate a large group of the health professional's peers. If a large group of the health professional's peers regard the practice as representing competent medical practice, then the practice is widely accepted. A practice which is eccentric, or idiosyncratic, or experimental, or 'alternative', does not fall within the definition of a widely accepted practice.
But a widely accepted practice need not be universally accepted, as the Act expressly contemplates. Nor, and this is important to this case, is it necessary that the members of the large group would all agree that each would have chosen to employ the practice in the individual case at hand, providing they recognise the practice employed as representing competent medical practice. In a situation where there might be two or more schools of thought, or two or more treatment options, both or all of which might be accepted as representing competent medical practice, and competing factors to be weighed against each other as part of exercising clinical judgment, then each option is capable of being widely accepted as representing competent medical practice, although individual practitioners might choose one over the other, consistently or from time to time, and debate that choice.
As to who constitutes the medical professional's peers, I would construe that to mean members of a group of professionals who are charged with, or generally responsible for, making such decisions as the professional under scrutiny made. Part of a case for alleged negligence may include an allegation that a professional acted above their experience and level of responsibility, so the peers should not be confined to those at a level of the professional whose actions are being scrutinised, but should include those who are generally regarded as being the appropriate professionals to make such decisions. In a case such as this I would regard the appropriate professionals as orthopaedic surgeons generally, not specialist foot and ankle fellowship trained orthopaedic surgeons. As McNair J stated in Bolam at (586), 'The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art'.

Key issues to be determined

There are several key issues in the case. The first is whether, in the circumstances of this fracture, a failure to perform surgery was in accordance with a practice that was widely accepted within the medical profession, in this case orthopaedic surgeons, as competent professional practice, or not. I will address that issue by considering the position generally and then specifically dealing with this fracture.
If a failure to perform surgery was in accordance with a practice that was widely accepted within the medical profession, the court is to determine whether the failure to perform surgery was nevertheless so unreasonable that no reasonable orthopaedic surgeon would have failed to perform surgery.
If the failure to perform surgery was not in accordance with a practice that was widely accepted within the medical profession, in this case orthopaedic surgeons, as competent professional practice, the defendant's liability is to be determined in accordance with the general principles set out in s 5B of the Act.
A key issue is the question of when any surgery could have been performed. Another key issue is whether the failure to perform surgery, and any consequent delay before surgery was ultimately performed, led to osteoarthritic changes to the subtalar articular surface which could not be repaired.
Another key issue is whether, if that is so, any delay in performing the surgery led to a less successful result than would have been obtained had it been performed earlier.
Another key issue, one turning upon the credibility of the witnesses, is whether, on either 13 December 2010 or 17 January 2011, Mr Lam is likely to have examined the plaintiff's foot, and the likely state of the plaintiff's heel when Mr Lam discharged him from the outpatient clinic on 17 January 2011. Related issues are the failure of Mr Lam to call for a final CT scan before discharging his patient from the clinic.
If there was a breach of duty, another critical issue is whether the failure to perform surgery has contributed to the plaintiff being in a worse state than if the surgery had been performed earlier. That issue goes to causation and the question of what damage the plaintiff has suffered.
I intend to first consider as a general proposition whether conservative treatment of severe heel fractures was at the time in accordance with a practice that was widely accepted within the medical profession as competent professional practice.

Conservative versus surgical treatment for calcaneal fractures

Evidence that a practice was or was not widely accepted within the medical profession is not established by one, or two, or three experts expressing their view of how they would have treated, or did treat, a particular patient. Individual views are of interest, but the focus is on the view, or views, widely held within the medical profession.
The most informative starting point in this case is the literature in this field, which casts light on the state of debate in the medical profession concerning the treatment of severe heel fractures. After reviewing the literature, I will turn to the evidence of the individual expert witnesses.

The medical literature

I have been provided with a number of published medical articles by the defendant. The purpose of these articles from the defendant's point of view is to demonstrate that, at the time the defendant's staff, particularly Mr Lam, failed to perform surgery on the plaintiff's heel, conservative non-surgical treatment was widely accepted as competent professional practice.
The defendant does not seek to establish that it was the only widely accepted practice at that time, and certainly does not seek to question Mr Salleh's professional judgment in performing surgery when he did, or at all. Rather, the defendant seeks to demonstrate that the contest between surgical versus conservative treatment of comminuted fractures of the calcaneus has been the subject of debate within the medical profession for decades and is likely to continue to be so for some time yet.
Some of the articles would have been available to the defendant's staff, including Mr Lam, as at November – December 2010. Others post‑date the relevant period.
While s 5PB(1) of the Act provides that an act or omission is not a negligent act if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional's peers as competent professional practice, the later articles are not irrelevant to this case.
Firstly, a later publication may analyse earlier articles and give the court guidance as to what may be drawn from the earlier publications. Most of these articles do that.
Secondly, later articles may – and in this case do – give historic background and context, in order to explain their purpose. They evidence the issues which have been under discussion by professional peers at earlier dates and hence cast light on the state of medical opinion at that earlier time.
Third, s 5PB(1) is a shield, not a sword. If a medical practitioner acts according to a practice which is not widely accepted by his peers at the time, but is subsequently shown to be superior to the practice which was widely accepted by his peers at the time, s 5PB(1) does not thereby render his actions negligent. Rather, it provides protection to his peers who had not yet adopted the superior practice. If later research vindicates a practice and casts light on the question of whether a medical practitioner breached his duty of care, that is relevant irrespective of whether it was published at the time in question.
Consequently, I have not limited my consideration to articles which were published at the time that Mr Lam and others treated the plaintiff.
Published clinical research articles of this nature are graded according to the method employed by the researchers, in order to give readers (such as medical practitioners deciding upon a form of treatment) guidance as to what evidentiary weight to place upon the article. The court was provided with a guide to these 'levels of evidence' published in The Journal of Bone and Joint Surgery, a well-respected publication. It was apparent that both expert witnesses, Professor Skirving and Mr Salleh, were familiar with these levels.
In therapeutic studies which investigate the results of treatment, the studies are graded according to Levels I – V in descending order of weight. The ratings by level are described as placing a particular clinical research study into context for the reader, with the purpose that 'Higher levels of evidence should be more convincing to surgeons attempting to resolve clinical dilemmas'. There are several caveats attached: the levels are only a rough guide to the quality of an article, in‑depth assessment requires analysis of the specific study, Level I evidence may not be available for all clinical situations, Level III or IV evidence may still be of great value to the practising orthopaedic surgeon and no single study provides a definitive answer.
Of highest value in therapeutic studies is Level I, comprising randomised controlled trials (where patients are randomly allocated to receive, or not receive, medical intervention of some type and the results assessed) and systematic reviews of such trials. Those trials are of greatest value when they are trials of sufficient numbers of patients, and where the assessment process is 'blinded' to remove unconscious bias, such that the assessors are, where possible, in ignorance of the treatment administered, or the source of the treatment, and where the assessors were not involved in the original treatment.
Level II includes prospective cohort studies (where a group of patients are compared with a control group of patients from the same time and institution), or lesser quality randomised controlled trials and reviews of the same.
Level III includes case control studies where patients with a particular outcome are compared to those who do not share that outcome, and retrospective cohort studies (such as where a large group of patients are observed over a long period with comparison of outcomes) where the study is initiated post-treatment.
Level IV includes case series, with no control group, or a control group from an earlier time.
At the lowest rung on Level V is expert opinion.
This is not the only such grading of evidence by levels. One of the articles before the court refers to the 2011 Oxford CEBM (Centre for Evidence Based Medicine) 'Levels of Evidence' (available at: It is similar in content. Its highest level comprises local and current randomised sample surveys. Its lowest level comprises mechanism-based reasoning, being inferential reasoning based upon an understanding of a mechanism, such as the heel, so as to predict the likely outcome of a particular intervention, or in other words, expert opinion.
In the caveats for the use of such levels, both grading systems acknowledge that a study that might, on its face, qualify for a particular level of evidence, may be downgraded due to some methodological flaw or limitation. Hence the grading system itself calls for the use of individual judgment.
The literature does indeed prove that the question of surgical versus conservative treatment of calcaneal fractures is a vexed one and has been the subject of much debate over several decades within the medical profession. The following two extracts are sufficient to demonstrate the point.
The introduction to 'Displaced Intra‑Articular Calcaneal Fractures: 15 year follow-up of a randomised controlled trial of conservative versus operative treatment' by T Ibrahim and others, published in Injury, International Journal of the Care of the Injured (38 (2007) 848 – 855) (the 2007 Ibrahim article) states:
There are conflicting opinions on the management of intra‑articular calcaneal fractures and there have been controversies in treatment over the past century. In the early 1900s, surgery was considered inappropriate and conservative techniques were advocated. However, patients and surgeons alike remained disappointed with the results and various authors advocated surgical intervention during the period from the 1930s to 1950s. In the early 1950s, Essex‑Lopresti described the fracture anatomy and types and refined the surgical technique. In 1958, conservative treatment was advocated following a critical report by Lindsay and Dewar highlighting the complications of surgery and better results with conservative treatment. This position remained for the next 20 years until the 1980s and 1990s when the swing has been back towards operative intervention. This reflects continuing dissatisfaction with the outcome of conservative treatment of these fractures and the improvements that have occurred in surgical technique and complication rates. However, there have only been a few randomised controlled trials of conservative versus operative management of intra‑articular calcaneal fractures.
That addresses the historic position. Seven years on from that article, the most recent study headed 'Operative versus Non‑Operative Treatment for Closed, Displaced, Intra‑articular Fractures of the Calcaneus: Randomised Controlled Trial' by Griffin, D and others, published in the British Medical Journal on 24 July 2014 (the 2014 British Medical Journal article) summarises:
In the 1990s, computerised tomography allowed a better understanding of fracture patterns, and new surgical approaches were developed that allowed surgeons to realign the bone fragments, fix them with plates and screws, and restore the subtalar joint. Observational studies of these treatments reported low complication rates and better clinical outcomes than had been observed in historical non‑operative series, and this new surgical treatment of severe calcaneal fractures rapidly spread in Europe, the United States, Canada, and Australia. It is now being promoted in developing countries.
Four independent systematic reviews, including a recent Cochrane review, have examined the controlled evidence for the effectiveness of this surgery. All four reviews remarked on the paucity of evidence and the poor quality of studies to date. One suggested that surgery might lead to better functional recovery than conservative care, but all noted the risk of complications after surgery, including infection and the need for reoperation. All concluded that the available evidence is insufficient to choose the best management strategy for these fractures.
The current situation is one of uncertainty. Some orthopaedic surgeons are enthusiastic about this surgery for calcaneal fractures, and recommend it to patients. Others consider the operations to be complex, expensive, risky, and without proved benefit, and so recommend non‑operative care. The dilemma of how best to treat such patients is a familiar one in hospitals worldwide; whether a patient who sustains this fracture in the United Kingdom today undergoes surgery depends to an extent on the hospital and the surgeon.
That introduction captures the delicate and difficult balancing exercise to be undertaken between the potential benefits of surgical intervention and the potential risks of such treatment. Several of the articles simply assume the benefit to be gained from surgery and, from that assumption, discuss the finer details of which particular form of surgery is optimum. Other articles subject that assumption to outcomes‑based scrutiny, with results that, at times, surprise even the authors. The most recent article, the 2014 British Medical Journal article quoted above, calls the assumed benefit of surgery into serious question for all but the most seriously deformed heels.
The earliest published article before me is headed 'Operative compared with non‑operative treatment of displaced intra‑articular calcaneal fractures: A prospective, randomised, controlled multi‑centre trial' by Buckley R and others; Calgary General Hospital, Canada published in J Bone Joint Surg AM (2002 84‑A (10): 1733‑44 ISSN: 0021‑9355) (the 2002 Buckley article). This article would have been available to Mr Lam and others at the relevant time.
It is a short article published in 2002 involving a study that took place over a minimum of two years and a maximum of eight years of follow-up. The purpose of the study was to determine whether open reduction and internal fixation of displaced intra‑articular calcaneal fractures results in better general and disease specific health outcomes, at two years after the injury, compared with those of non‑operative management. Being a prospective, randomised, controlled multi‑centre trial, it qualifies for a Level I rating in terms of the level of evidence it represents.
Between April 1991 and December 1997, 512 patients with a calcaneal fracture were treated at four trauma centres in Calgary. Of those patients, 424 patients with 471 displaced intra‑articular calcaneal fractures between them were enrolled in the study and were randomised to either operative or non‑operative care. Those who received operative care received a lateral approach in rigid internal fixation. Those with non‑operative treatment received no attempt at closed reduction (that is, manipulating the bones back into place without surgery) and they were treated only with ice, elevation and rest. Between two and eight years later, 319, or 73%, of those patients were followed up. Their fractures were classified and the quality of the reduction was measured, and outcomes were measured by way of a general health study and also a disease specific scale.
The outcomes after non‑operative treatment were not found to be different from those after operative treatment. Without stratification of the groups, the functional results for both groups were equivalent.
The authors concluded, however, that 'after unmasking the data by removal of the patients who were receiving worker's compensation, the outcomes were significantly better in some groups of surgically treated patients'. The patients were asked individually to assess their satisfaction, and those patients receiving worker's compensation appear to have recorded less satisfaction with the outcomes, the implication being that they may have been influenced consciously or subconsciously to a less positive outcome. Once they were removed from the analysis, those patients who were managed operatively scored higher satisfaction scores, as did women generally. Other groups who scored higher on the satisfaction scores included patients who were younger, or had a light workload, or a moderately lower Bohler's angle (presumably, as opposed to those with a notably lower Bohler's angle, because the lower the angle, caused by the flattening out of the bottom portion of the heel, the more serious the displacement). The better outcomes were not across the board, however, only in some groups.

Professor Skirving was highly critical of the removal of those patients in the analysis, although that was only done in analysing the final outcomes, not in producing the outcomes themselves. I have considerable misgivings about the removal of worker's compensation patients from the overall outcome, although this method was followed in two studies. Removing patients on worker's compensation reduces the number of patients under consideration, and rests upon an assumption about those patients which might be unfounded. The fact of a patient being on worker's compensation might, on closer analysis, produce information about the occupations of those patients which leads to a different analysis of the reason behind the less favourable outcomes. The removal from the final analysis was transparent however, and so the results before and after that approach are available to the reader.
Broadly speaking, the article suggests there is little difference in the outcome between patients who were treated conservatively and those who were treated surgically. It has been criticised for the fact that the majority of the operations (73%) were performed by the one surgeon.
The article tends to suggest there might be some small benefit to be had with surgical intervention. The results obtained differ from the most recent 2014 British Medical Journal study, which shows no benefit.
The second article is the 2007 Ibrahim article.
It reports on a follow-up conducted 15 years after a randomised controlled trial of conservative versus operative treatment of patients suffering displaced intra‑articular calcaneal fractures. The original study by Parmar and others had taken place in 1993 with a one-year follow-up. The aim of the Ibrahim study was to report the long-term follow-up of those patients using both clinical and radiological outcomes. It qualifies as a Level I study.
In the original study, 56 patients with displaced intra‑articular calcaneal fractures were recruited and randomised to either conservative or operative treatment according to their year of birth. That resulted in 25 being treated operatively and 31 conservatively. The study excluded both extra‑articular (not involving the joint) and undisplaced intra‑articular fractures, which I understand from the literature would be treated conservatively, and bilateral calcaneal fractures (that is, on both sides).
There is no suggestion that severely comminuted displaced intra‑articular fractures were excluded. It follows from the exclusion of undisplaced fractures that displaced intra-articular fractures were not excluded. That is consistent with the discussion in the article. As I understand the literature and the evidence, one of the ways in which a fracture may be displaced is posteriorly, with the heel bottoming out, lowering the Bohler's angle.
There is no reference to any exclusion of patients with heels in varus position, or deformity. A varus or valgus misalignment is obviously a displacement, but a displacement need not amount to a varus or valgus misalignment.
Those who reviewed the patients at one year had not participated in the treatment of the patients. CT scans were then reviewed by a consultant radiologist who had also not been involved in the treatment of the patients.
The original study had shown no difference between conservative and operative patients using both functional and radiological outcomes.
Fifteen years on, the authors were able to follow up 57% of the original group, assessing pain and functional disability using the American Orthopaedic Foot and Ankle Society (AOFAS) hindfoot scale, the foot function index (FFI) questionnaire and the calcaneal fracture scoring system. The mean scores on all three favoured the conservative treatment group, but the differences were not statistically significant. The authors in 2007 concluded that, at long‑term follow‑up, the AOFAS, FFI and calcaneal fracture scores were not significantly different between the conservative and operative patients.
They also found no correlation between Bohler's angle and the functional outcome measures for both the conservative and operative groups. Just as the original study had shown no difference in radiological outcomes, so the long‑term follow-up showed that both the Bohler's angle and the height of the calcaneum were not different between the conservative and operative groups. Some original radiographs for the patients were missing, however, which undermined the authors' confidence in their findings.
The authors also concluded that there was no difference in the grade of osteoarthritis of the subtalar joint between patients from the conservative and operative groups. The detailed discussion section of the article highlights the many differing opinions in this area. Indeed, it begins with the statement: 'The management of displaced intra‑articular calcaneal fractures remains controversial and the question whether operative treatments improves outcome is debatable'.
Notwithstanding their results, the authors still opined that 'the ideal treatment for any displaced intra‑articular fracture is anatomical reduction, stable fixation and early joint mobilisation' and commented that previous studies indicated that 'those in whom geometry of the calcaneum and joint was restored by surgery had better compensation of gait and a better clinical and functional score'. They qualified that opinion, however, in stating that 'open reduction and internal fixation of intra‑articular calcaneal fractures could only be expected to benefit patients in whom nearly anatomical reconstruction is obtained'.
Further, the authors pointed out that:
… complications following operative treatment have been as high as 53% and one of the most concerning complications are soft tissue problems such as poor wound healing. Co‑morbidities such as peripheral vascular disease, diabetes mellitus, smoking, fracture blisters, delayed presentation and severe associated injuries may make operative treatment not feasible.
The authors commented on the weaknesses in their study, the obvious ones being that they were assessing the outcomes from surgery undertaken back in 1993, when surgical techniques have moved on and the limited lateral approach employed then, together with the use of Kirschner wires for fixation, has (they said) come to be considered inadequate for intra‑articular calcaneal fractures. The number of patients who could be followed up was small, namely 26 of the 46 remaining living patients, although that equated to greater than 50% of the original number.
Finally, the authors concluded:
Current operative treatment of displaced intra‑articular calcaneal fracture involves more sophisticated fixation techniques to allow possible early mobilisation. However, it remains to be answered whether these modern fixation techniques offer any advantage over conservative treatment for displaced intra‑articular calcaneal fractures in terms of functional outcome measures.
Certainly the authors of the study did not conclude that conservative treatment is superior to surgical intervention. They did not definitively conclude that conservative treatment administered today will produce the same level of beneficial outcome that surgery performed today will produce. They each appeared to hold the personal view that surgery – that is, successful surgery, achieving near anatomical reconstruction – is the optimal treatment, but concluded that there is little positive evidence that surgical intervention has in fact produced better outcomes than conservative treatment.
That article would have been available to Mr Lam and other staff of the defendant.
Qualified medical professionals could very reasonably have drawn differing conclusions from it. The results certainly challenge an assumption that surgical intervention will likely lead to improved outcomes. The article opines that successful surgery – that is, where anatomical position is restored, without complications, via more modern methods – may result in better outcomes, but does not provide compelling evidence for the same, and indeed cautions against complications and complex situations where surgical restoration may not be feasible.
One reader may legitimately have seen the study as generally in favour of surgical intervention, with caution, while another may have seen the article as a significant challenge to any assumption that surgery leads to better outcomes, and a caution about complications and risk. Clearly the authors found the state of the evidence to be unsatisfactory at that time.
The next article in time is 'The Primary Arthrodesis for Severely Comminuted Intra‑articular Fractures of the Calcaneus: A systematic review': by T Schepers (Foot and Ankle Surgery 18 (2012) 84 – 88) (the 2012 Schepers article). This article would not have been available to the defendant's staff at the time.
It makes a case for a further study to determine whether, in the case of severely comminuted calcaneal fractures, the traditional open reduction and internal fixation via the extended lateral approach should be replaced with primary arthrodesis (surgical fusion of the subtalar joint) as a primary response, rather than an eventual response.
In essence, the author's point is that 'although open reduction and internal fixation via the extended lateral approach is currently considered gold standard, severely comminuted calcaneal fractures might not be amendable for reconstruction'.
He refers to the fact that there is over a century of history of patients eventually having surgical fusion of the subtalar joint as a salvage procedure, having already gone through the painful process of suffering the displaced intra‑articular calcaneal fracture, with ultimately disappointing results from surgery. He comments that, as a result, some surgeons began employing fusion of the subtalar joint as a primary response to the severely comminuted fracture. That approach, however, gave disappointing results in the late 1950s and so primary fusion became less popular and, in any event, the author comments, results from open reduction and internal fixation were improving and lowering the overall need for arthrodesis.
The author comments, however, 'recently however, for the severely comminuted fractures (e.g., the Sanders type‑IV) the primary subtalar fusion after near-anatomical reconstruction of the calcaneus has regained attention'. The author then reviews what limited literature was available and found seven studies and an abstract to analyse, which studies confirmed poor results in relation to severely comminuted fractures, with a need for eventual arthrodesis to be as high as 72%. The author also commented on a rate of wound complication from surgery which ranged from 0 – 50%, and reported that, in studies analysed which reported on complications, wound healing (complications) or infection occurred in 21 out of 108 feet (19.4%) including seven cases of osteomyelitis, in which three amputations were necessary.
The best results appeared to follow arthrodesis after initial open (in other words, surgical) reduction, compared with arthrodesis following initial conservative treatment. The author concludes that there was insufficient literature available on using primary arthrodesis for the treatment of severe intra‑articular calcaneal fractures, because it was rare and complex and tended only to be performed in non‑reconstructable calcaneal fractures with severe damage to the subtalar cartilage.
He called for a multi‑centre prospective study comparing open reduction and internal fixation (and the likely eventual arthrodesis) with primary arthrodesis for Sanders type‑IV calcaneal fractures to determine the best treatment option 'for the seriously disabling injury'. He considered primary arthrodesis for such severe injuries provides overall good results considering the severe nature of the injury, and ought to be considered.
In cross-examination, Professor Skirving, the defendant's expert witness, agreed that the general tenor of the article was to recommend primary arthrodesis. When asked 'So even in a study where it is known that one-fifth of the patients got wound infection the conclusion still was that surgical intervention was required?', Professor Skirving responded drily: 'Well, they say it was performed. I think the four (sic: three) people who had amputations wouldn't have agreed with what you say following this surgery…'.
Professor Skirving's point was that 'This is all a matter of risk benefit ratio … and some surgeons are just not prepared to take these sorts of risks'.
Clearly the 2012 Schepers article does not support the proposition that conservative treatment is equally valid in the case of severely comminuted displaced calcaneal fractures of the Sanders type-IV level of severity. But it cannot be used as positive evidence that surgery is preferable notwithstanding a high rate of complications purely on the basis that the surgery was performed. While Professor Skirving agreed that the authors did not conclude that surgical intervention was inappropriate to treat Sanders type-IV fractures, the fact is that they did not consider that question. The article is not concerned to compare non‑surgical outcomes with surgical outcomes.
Rather, the point of the article is that, even with open reduction and internal fixation, the real likelihood in these serious cases is that subtalar fusion will eventually be required, because anatomical reconstruction of the subtalar joint in these severely comminuted fractures is frequently not possible and therefore, the author opines, surgeons ought to be giving full consideration to moving immediately to arthrodesis, as opposed to eventual arthrodesis. The article suggests that the likelihood for eventual arthrodesis may be as high as 72%. The article tends to suggest, therefore, that these injuries are so destructive that osteoarthritic changes are the likely outcome, and the likelihood of arthrodesis being required is such that it should be given more priority as the initial response. The article was comparing those two types of surgery and concluded with a call for further research.
The next article in time is 'Surgical versus Conservative Interventions for Displaced Intra‑Articular Calcaneal Fractures' by J Bruce and A Sutherland, published on‑line on 31 January 2013 by the editorial group: Cochrane Bone, Joint and Muscle Trauma Group (the 2013 Bruce and Sutherland article).
The authors state that treatment of fractures of the calcaneus can be surgical or non‑surgical, 'however, there is clinical uncertainty over optimal management'. In the 'plain language summary' of their paper the authors stated 'currently, there is no consensus over which is the best management strategy for patients'.
Their article was not an original study but, rather, an analysis of existing outcome studies, comprising randomised and quasi‑randomised clinical studies, comparing the outcomes of surgical versus conservative management of displaced intra‑articular calcaneal fractures in adults. Professor Skirving's opinion that publications from this institution are recognised as being the most eminent in medical musculoskeletal academia was not challenged.
Four trials with 602 participants were analysed. Follow-up ranged from 1 – 15 years post-treatment. The authors recognised that all of the trials they were analysing had methodological flaws.
The strongest level of evidence analysed came from a large multi‑centre Canadian trial including 424 participants conducted 15 years earlier (a different and significantly larger study than the one under review in the 2007 Ibrahim article). That trial 'showed no statistically or clinically significant differences between the surgical and conservatively treated groups at three years follow‑up in the validated disease specific score', 'no significant difference between the two groups in the risk of chronic pain at follow‑up', and 'no statistically or clinically significant difference between the two groups in health related quality of life at three years follow‑up'.
The two small trials provided some limited evidence of a tendency for a higher return to employment after surgery. One small trial found no difference between the two groups in the ability to wear normal shoes, whereas another small trial found surgery resulted in more people being able to wear all shoes comfortably. The significance of shoe wearing is that it reflects on the incidence of deformity of the heel and impact on gait. I infer that an inability to wear shoes probably reflected a degree of deformity.
There was a higher incidence of major complications following surgery compared with conservative treatment, but significantly fewer surgical participants eventually underwent subtalar arthrodesis following the development of subtalar arthritis.
There were no significant differences between the two groups in range of movement, outcomes or radiological measurements (e.g., Bohler's angle). The authors lamented the loss however of some original radiographic images. They concluded that 'overall, there is insufficient high quality evidence relating to current practice to establish whether surgical or conservative treatment is better for adults with displaced intra‑articular calcaneal fracture', commenting that 'further good quality research is recommended'.
Clearly this article is significant, notwithstanding that it post-dates the relevant timeframe. It has its limitations, particularly that most of the data came from the large Canadian study which was 15 years old, and surgical methods are not static, and the authors called for more research to resolve the question of whether surgery or conservative treatment is best. It supports the view that, while surgery may well result in a reduced likelihood of osteoarthritic changes requiring eventual subtalar arthrodesis, it also results in an increased likelihood of major complications.
And, of course, this article is concerned with statistical probabilities. While a patient treated surgically may be less likely to require subtalar arthrodesis, he may yet be one of those patients who has surgery, and suffers complications, and still develops osteoarthritic changes and then requires subtalar arthrodesis.
The introduction to the next article, 'Long-term Outcomes of 1730 Calcaneal Fractures: Systematic review of the literature': E S Veltman and others, published in the Journal of Foot and Ankle Surgery (52 (2013) 486 ‑ 490) (the 2013 Veltman article) states:
Calcaneal fractures represent about 2% of all fractures, and 65% to 70% of those fractures involve the articular surface of the subtalar or calcaneocuboid joint. Calcaneal fractures are caused by high-energy trauma in young males by an axial load on the patients' heels, most often by a fall from a height or motorcycle accidents. A common consequence of a malunited calcaneal fracture is the inability to wear normal shoes or even normal weight‑bearing, owing to a change in the shape of the calcaneal bone.
Open reduction with internal fixation (ORIF) is the most commonly used technique, mainly with a lateral approach. However, a trend has been seen toward minimally invasive techniques for treating calcaneal fractures. Nondisplaced fractures have been treated conservatively with immobilisation and non-weight bearing.
The object of the present study was to review the current published data on the long-term outcomes of calcaneal fractures, with special emphasis on the role of the type of treatment, surgical approach, and reduction and internal fixation.
The authors searched for studies of adult patients from 1978 – 2011, identifying studies relating to functional outcome, subjective (patient reported) outcome and radiographic evaluation at least two years post‑treatment, whether surgical or conservative. Twenty-nine such studies met the inclusion criteria, comprising a total of 1,730 fractures in 1,557 patients. Studies where surgeons had resorted to primary subtalar fusion (that is, subtalar fusion as a first response as contemplated by the 2012 Scheper article) were excluded, as were cases of stress fractures. There is no suggestion in the article that studies including patients suffering the most serious Sanders type-IV fractures were excluded from the study, nor those who suffered misalignment of the foot.

I have also found, however, given the severity of the injury and its extension into the subtalar joint, that there was trauma-caused injury to the articular surface as well. I further find that, given that the plaintiff suffered a Sanders type‑IV fracture, in a high-energy event, that was always likely to be life-changing and there was always going to be a meaningful likelihood that he would require subtalar arthrodesis in the future. I further find, based on an acceptance of Professor Skirving's evidence, that had the plaintiff been a suitable candidate for surgery within the first two to three weeks, and had a decision been made to operate, the likelihood, given the highly comminuted nature of the fracture, is that the articular surface could not have been restored successfully anyway. In other words, I am not satisfied that, but for the failure to operate earlier, the articular surface would likely have been successfully repaired, resulting in no arthritic changes into the future.

Some comments on the evidence about damages

The findings I have made earlier result in the dismissal of the case, but should I be found to be in error, I make some comments now that bear on damages.
I accept the plaintiff's evidence as to the impact the heel fracture has had on his life. He seems to be a stoic sort of man, given that he was often frustrated with the rate of his recovery following the accident and given that he wanted to get back to sports and the gym at a time when he was still in a wheelchair. I did not have any concern that he was exaggerating his symptoms.
At the beginning of 2010 the plaintiff had changed from his previous field of employment in manufacturing roof products from sheet metal to commencing employment as prison officer with the Department of Corrective Services. He started work in early February 2010. His wage at the time of the accident was $1,011.55 gross per week.
Following the accident, the plaintiff was off work until April 2012, a period of 77 weeks. Between late July and April 2012, however, that was attributable to his having been diagnosed with Hodgkin's lymphoma. He needed surgery to remove a lump, followed by chemotherapy and radiation treatment which concluded in March 2012. He returned to his work as a prison guard in April 2012.
The plaintiff testified that his standard roster involves two or three days rostered on 12-hour shifts. He said his ability to walk increased as he went back to work, but eventually plateaued. He is able to walk, but his foot chronically hurts, and becomes extremely painful after longer periods of time walking. He said if he has to stand for prolonged periods he has to constantly shift weight off his left foot. Once every six weeks he is required to work a particular shift at work, which involves his walking for periods of two hours at a time, and six hours in total. By the end of that shift, his foot is extremely sore and he is looking forward to resting.
He said he has never specifically taken a day off work because of his foot, but if he does have a day off, because he is otherwise ill, then he appreciates the opportunity to rest his foot. His chronic pain has compromised his ability to do overtime. He still does it because it helps financially, but not as much as he would like to. He has to turn it down in order to rest his foot.
His chronic pain also affects his mood. He has been in tears on occasions both because of the pain itself, and sometimes just from being fed up with having chronic pain. The pain gets him down.
He said his ability to jog improved as he returned to work but then plateaued, if not started to diminish. He said he can jog, almost run, for very short periods, but suffers quite a lot of pain afterwards, and cannot 'full-on run' at all. He is a good golfer. Initially he had to hire a buggy, but has gradually dispensed with that. He can play nine holes well enough, but struggles on 18 and pays for it afterwards in pain. He still plays 18 holes though.
He has had to accept that he will not qualify for selection into the Emergency Services Group, which is the response group within the prison system. He would have liked to have applied to be a part of that group, but he had insufficient seniority to apply pre-accident, and he now knows that he would not be accepted due to the physical demands of the role.
His ability to do housework has been impacted. He does what he can on his days off, but on bad days he cannot stand in the kitchen and cook or wash dishes, or vacuum the house. He has to modify his ambitions on holidays – long outdoor treks are not sensible. If he makes the effort, he knows he will pay for it afterwards and that will impact on the rest of the holiday, so he tends not to make the effort and conserves his mobility. He can still have an enjoyable holiday but has to be sensible about how he goes about it.
He worries that his chronic foot pain will cause him to retire early. He does not have children yet but, on the assumption that he and his wife will have children, he worries that he will not be able to be as active with his children as he would like.
He has put on a significant amount of weight since the accident, some 40 kg. He has always had a problem with his weight due to his acknowledged over-eating. Dr Kulaendra has prescribed him diet pills over the years. In 2009 he weighed 130 kg, and 122 kg in May 2010. On 7 July 2010 the plaintiff's weight was 113 kg, 18 kg less than earlier that year and 9 kg less than six weeks earlier. On 7 July 2010 the doctor had made an entry 'patient motivated, lost weight, feels better for it'. He was still obviously very overweight, however.
Obviously being unable to run or walk for any sustained period of time makes it harder to exercise. The injury would appear to have interrupted a course of trying to tackle his weight and improve his fitness. The injury would, of course, have no physical impact on his ability to eat less, which is a critical part of the equation - many would say far more critical than the exercise. I accept, however, that being unable to run or stride it out for any length of time may well impact on his motivation to eat less, because the chronic pain gets him down.
Apart from some questions designed to highlight his chronic problem with weight, the plaintiff was not cross-examined on any of this evidence. It is all credible and I accept it.
The plaintiff called David MacDonald, a rather more experienced prison guard who has known the plaintiff since he began work. They are also friendly, playing golf together sometimes.
He said, when the plaintiff began work as a prison officer, he was quite keen to get fit and was drinking his protein shakes. He recalled the plaintiff talking about trying to get into the response unit. He described the selection course for that unit and said the plaintiff would not be able to manage now.
He described his and the plaintiff's 'usual work' day as involving some time on their feet – supervising inmates cleaning their areas and in the gardens. There is also computer work required. Breaks are provided and there are opportunities for rest. Mr MacDonald said with a normal day doing standard work 'there's probably not too much work involved' – by which I understood him to mean there is not too much physical work or walking involved which causes an issue.
He did describe the golf buggy run, where two prison guards walk with two inmates in a buggy, the inmates both picking up food from the kitchens and transporting it, and also picking up rubbish, and the guards opening and closing gates and keeping an eye on them. He explained that it is a 5 - 7 km route and you walk quite quickly and it takes much less time to achieve with the guards on foot. That is obviously the same shift that the plaintiff described, after which he struggles. Mr MacDonald said the plaintiff hobbles a bit afterwards and might say something like 'his ankle's killing him, but he normally keeps it to himself'. The plaintiff said he does not generally like to advertise his physical difficulties, but those who work with him closely know.
That shift only occurs every six weeks. Perhaps it could be re‑arranged so that the plaintiff was in the buggy with one of the inmates or, if that presents a security risk, so that both guards were in the buggy and the inmates on foot. One can understand that the plaintiff may be reluctant to admit to having physical limitations, particularly when these injuries are not work-related, and may be reluctant to make the buggy run take much longer for everyone involved, but there is no suggestion that he has spoken to anyone in authority in his employment.
Mr MacDonald said the plaintiff is quite a good golfer and normally 'walks okay' for the first 12 holes, but then begins to physically deteriorate and his mood deteriorates as well.
Mr MacDonald was not cross-examined. He was a credible witness and I accept his evidence. His evidence supports my view of the plaintiff as a stoic sort of man, who is not exaggerating his injury and is not willing to give into it, but has to accept that he has limitations now.
Mrs Danielle Wright married the plaintiff in 2014. She gave evidence supporting the plaintiff's descriptions of his level of activity. She said his ability to do housework is minimal and depends on whether he had worked that day or not. She said he generally rests for a couple of hours at the end of the day. He puts his weight on his right leg if he cooks a meal that takes a while to prepare.
She said the plaintiff had difficulty getting comfortable on the plane when they went on their honeymoon - although it was not clear whether that was entirely due to his foot or due to his size. She said he had to change his car to an automatic because he now cannot drive a manual. That is not a real disadvantage to a person these days, but it does demonstrate the ongoing issues with the foot.
She confirmed that her husband still suffers from pain in his left foot, to the extent to which he has been in tears. She said they talk about it often, because he is constantly in pain. She was not cross‑examined. Mrs D Wright was a quiet, reserved sort of witness. I had no sense that she was exaggerating her husband's difficulties. I accept her evidence.
Mrs Maddalena Wright, the plaintiff's mother, said that her son was very committed to becoming a prison guard and had worked hard to lose weight and improve his fitness in order to be accepted into the position. She said he had always played some sport, not lots, but he enjoyed squash, golf and the odd game of tennis. When asked about his involvement in domestic duties prior to the accident Mrs Wright replied 'well, as a – as a boy he wasn't overly helpful, but he did have duties and it was his job to unpack the dishwasher and he mostly did his own washing. I did his ironing, but he did as much as he could for himself'. She clearly was not talking about when he was a child. She later confirmed that he had those duties as a young man, and had to keep his own room clean. She said he did some of his own washing, not all, and she mostly did his ironing. She said she cooked all his meals.
She said, after his heel surgery, he could not stand for long and, to start with, he was unable to clean his own room or wash his own clothes. Of course, he would have suffered these limitations no matter when that surgery took place. His mother also assisted him both before and after surgery with his medication, and finding him something to keep his foot dry when showering, and taking him to appointments. She would have done that if she was living with him no matter when the surgery took place.
She said that he is a lot more self-conscious about his weight now. She also said he still plays golf, and she can tell when he has been playing golf because he limps badly afterwards.
Notwithstanding my comments about Mrs Wright's evidence about Mr Lam and issues going to liability, none of her general evidence above was challenged and it is credible and I accept it.
Mr Robinson was predominantly called to give evidence going to the issue of damages.
He detailed the plaintiff's symptoms as at December 2013. The plaintiff had reported constant pain over the back, outer and inner regions of the left foot, associated with constant swelling, and occasional giving way. The swelling increases on occasions. The pain increases with walking over uneven ground, walking for more than five to 10 minutes on flat ground and going up and down stairs. He concluded that the plaintiff's current symptoms and restrictions are as a direct result of his injuries.
Of course that information is dated. The plaintiff did say that his ability to walk and run improved over time. He can jog, albeit with pain, and he plays 18 holes of golf, albeit with pain. In his second report of 5 May 2015, Mr Robinson said the pain in the ankle remained the same, but mentioned that the plaintiff sometimes uses an ankle brace at work or when he plays golf.
Mr Robinson stated that:
I believe the plaintiff would have been able to return to work earlier if the fracture of the left calcaneus had been openly reduced and internally fixed within two to three weeks following the accident. It may have been necessary to delay the operation for a short period of time in view of the swelling that was present.
As stated earlier in this judgment, he agreed that what he meant by that comment was simply that, if the surgery had occurred earlier, then the recovery would have commenced earlier, and therefore the plaintiff would have returned to work earlier.
He said that, following a successful operation without any complications, he would expect a patient to be able to return to work six months following the operation. In evidence Mr Robinson appeared to be under the impression that the 18 months off work was due solely to the accident and the eventual surgery. He initially denied knowing that the plaintiff had Hodgkin's lymphoma during that period of time. That was clearly an oversight on his part. He was reminded in re-examination that he had, when retained, been informed of that fact, but it was plainly lost to his memory. It is not apparent from his report whether he wrote his report under the same misconception. Certainly there is no mention of the lymphoma.
Mr Robinson wrote in his May 2015 report that the plaintiff reported having reduced his attendance at the gym from daily, pre-accident, to now two to five times a week. He jogs a short distance and walks on the treadmill, and also goes on the cross-trainer and does weights. He also swims. He had returned to the gym by the time Mr Robinson wrote his first report but could not do squatting exercises. That was due, however, to right knee pain. His ankle continues to be swollen.
He wrote in his first report that the plaintiff will require 'possible fusion of the subtalar joint in 10 years'. He wrote that there is x-ray evidence of secondary osteoarthritis of the subtalar joint. He considers the plaintiff's prognosis with regard to the left ankle is 'guarded' and said the plaintiff will be prone to developing secondary osteoarthritis in his left foot 'due to the extension of the fracture into the subtalar joint'. In cross‑examination, Mr Robinson agreed with the proposition that 'that's as a consequence of the initial injury'.
He explained that while the plaintiff only has a five-degree range of movement in the subtalar joint, that can be sufficient to cause pain, and so subtalar arthrodesis achieves 'zero range of movement so as to stiffen the whole joint so there won't be any pain'. He agreed that then might cause pain in other areas by putting more stress on the ankle joint, but said that the plaintiff was probably already stressing his other joints such as his ankle joint and his mid‑foot. He said having such surgery would not prevent him from walking, but it does place more stress on the ankle joint and mid-foot. Mr Robinson said if the plaintiff's pain becomes severe, then he will have to have the subtalar fusion.
There is then a solution to the plaintiff's chronic pain, although it will necessarily reduce his range of movement.
Mr Robinson said the effects of the secondary osteoarthritis are that it will make it difficult for the plaintiff to stand (from the rest of his report, he means standing for a prolonged period) and to go up and down stairs at work. He said if the plaintiff gets to that level of pain he will have to consider early retirement. He assessed the plaintiff as having suffered a permanent residual disability of the left foot and ankle below the level of the knee joint of 12.5%. That figure does not, of course, distinguish between the residual disability consequent upon the injury and any disability consequent upon a delay in surgery. Mr Robinson considered the disabilities to be a direct result of the injury.
I accept Mr Robinson's evidence in relation to the impact of the injury on the plaintiff.
Dr Kulaendra wrote a report and gave evidence that bears on the issue of damages. In March 2014, he said the plaintiff had good functional recovery after surgery but still suffers swelling and stiffness of the mid-foot. He said the plaintiff had reported difficulty running up or down stairs, and standing still or walking for more than an hour. Dr Kulaendra also said in March 2014 that the plaintiff cannot play golf or attend the gym. He may have based that on old notes. By the time the plaintiff saw Mr Robinson in December 2013, he was back to doing both. The rest of the information is consistent with Mr Robinson's reports and the plaintiff's account and I accept it.
Dr Kulaendra concludes that the plaintiff's injuries to his foot and knee impact on his plaintiff's ability to perform at work, because agility and strength are important to the job (or at least certain aspects of it) and the plaintiff has difficulty walking, running, squatting, twisting, kneeling and running up and down stairs. He considers the delayed surgery has set the stage for premature osteoarthritis which could impact on the long term prospects of work. I have earlier remarked in this judgment that his opinion is based upon Mr Salleh's opinion.
In Dr Kulaendra's opinion, had the plaintiff had surgery 'promptly' he could have returned to light duties within six months, and to normal duties within nine months of his accident. If by 'normal duties', Dr Kulaendra meant the duties the plaintiff performs now, with a degree of ongoing discomfort, then that could be accepted as a general prediction. These injuries take up to two years to heal.
If he meant that he expected the plaintiff would have made an excellent recovery within nine months, such that he would have been performing normal duties in the same manner as he had pre-accident, then I would not accept that comment. It follows from the various comments I have made earlier about the severity of the injury, and the life-changing nature of such severe injuries, particularly when incurred in a high-energy event like a car accident, that I would consider such a prediction to be overly optimistic. Of course, the plaintiff could never have had the surgery 'promptly' in any event. Dr Kulaendra defined 'promptly' to mean 'when local swelling had settled and his overall condition stabilised'. The swelling did not settle.
Dr Kulaendra considers it quite likely that the plaintiff will have to retire early if osteoarthritis in his foot and ankle and knee progresses. Like Mr Robinson, he commented that surgical fusion could relieve the symptoms in his foot and ankle, but would result in further loss of function.
Apart from the evidence of the witnesses, various documents are also before the court as to the plaintiff's financial position.

Provisional findings on quantum

In case I am wrong about my findings as to liability, these are the findings I would have made as to quantum of damages.

Non-pecuniary loss

Section 9(4) of the Civil Liability Act provides a method of calculation which restricts the amount of damages to be awarded for non‑pecuniary loss, which comprises pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.
I accept the evidence of the plaintiff's current limitations. Given that his surgery occurred four years prior to the plaintiff's evidence, and two years is considered to represent the likely timeframe after which there is unlikely to be more healing, those limitations are likely to be permanent. I also accept their impact on his mood. I do not require expert evidence to accept that chronic pain and frustrating limitations lower mood and enjoyment of life.
Had I found the defendant liable, I would still not have assessed damages on the basis that the plaintiff would have made a good recovery but for the defendant's negligence. At best, on the plaintiff's case at its highest, he would have had surgery well outside the optimum two to three-week range and well outside the six-week range. That surgery would have involved the same more complex surgery he had in any event, including a likely bone graft, due to the severity of the injury in any event and the soft tissue contracture over time. Irrespective of the treatment he received, he had incurred a severe displaced, highly comminuted, high energy calcaneus fracture with associated ligamentous injuries.
The literature, and Professor Skirving's evidence, persuades me that patients unfortunate enough to incur such severe injuries do not recover to their pre‑injury state and, in the case of high-energy injuries, are more likely to suffer complications in the long term no matter how they are treated, including the onset of osteoarthritis. The defendant is not liable for the non-pecuniary loss that the plaintiff would have endured in any event.
Had I found the defendant liable, I would have allowed that the defendant is responsible for only a modest increase in the likely rate of progress of arthritic changes to the foot with associated pain and impact on his general mood and wellbeing.
The best way to reflect that is to discount the amount awarded for non‑pecuniary loss. After deducting the sum of $19,500 pursuant to s 9(2), I would have awarded the sum of $10,500.

Special damages

The plaintiff claims special damages in the sum of $7,257.95. It is unnecessary to give the break-down; the sum relates to the cost of the surgery performed by Mr Salleh. No issue was taken with the sums themselves, but the defendant queried the logical basis upon which the plaintiff could claim the cost of the surgery. There was no evidence before me as such about the difference in cost to the patient between surgery performed in the public hospital system and in the private system, but I am prepared to infer that, had the plaintiff undergone such surgery in the public hospital system he would not been asked to pay for it. Mr Lam testified that the fact that the plaintiff had private health cover would enable him to expedite his knee surgery, with no evidence about the financial implications of that, but I am again prepared to infer that the only difference would be that his health fund would contribute a substantial portion of the cost, which he is still entitled to claim.
While the case turns largely on the fact of the delay in surgery, given that the heel surgery was ultimately performed, part of the claim concerns the failure of the defendant's staff to perform the surgery and the costs of the surgery falls within that ambit. There has been no distinction made in the claim between the costs that would have been incurred had the surgery been performed earlier and the cost of the surgery actually performed but, given various findings I have made, I consider any difference is unlikely to have been at all substantial and probably cannot sensibly be quantified in that fashion.
Had I found for the plaintiff I would have awarded the special damages as claimed in the sum of $7,257.95.

Future medical expenses

On the strength of Mr Robinson's evidence (supported by evidence of Mr Salleh and Dr Kulaendra) the plaintiff claims the costs of an anticipated subtalar arthrodesis in approximately 10 years' time, together with associated rehabilitative physiotherapy, medications and medical appointments. The plaintiff estimates that cost to be around $15,000, a figure I accept as reasonable. He also claims the costs of medications such as painkillers and medical appointments for general reviews and advice which he estimates at $3,000. Although the medical evidence is that the plaintiff is likely to need subtalar arthrodesis if his pain levels become severe, I consider there is already a likelihood that he will need eventual subtalar arthrodesis. Mr Robinson said as much in evidence and, given the plaintiff's current levels of pain, and his current employment, I accept that.
For the same reasons expressed above and elsewhere in the judgment, I find the plaintiff was a likely candidate for an eventual subtalar arthrodesis in any event, given the severity of his injury, given that he could not have surgery within the optimum period and given that his was a high-energy injury. I have also found he suffered trauma to the subtalar joint surface in the accident. In those circumstances the defendant should not be liable for the total costs of such surgery.
I have also found, however, that the plaintiff did suffer arthritic change to the subtalar joint surface as a result of the delay in surgery (irrespective of liability). He therefore began with arthritic changes, and on that basis I accept that his risk of subtalar arthrodesis, already present, is further increased and the likely timeframe is also, as a matter of common sense, shortened.
In all of those circumstances, without using a precise mathematical calculation but doing the best I can to allow for the factors I have mentioned above, I would have allowed a sum of $9,000 for future medical expenses.

Past care and assistance

The plaintiff claims a global sum of $8,000 for past gratuitous services. He lived with his parents both before and after his injury. His mother assisted him both in terms of helping him shower and keep his foot dry, and with household cleaning and cooking and other assistance he needed.
The evidence was somewhat broad. Part of the claim encompassed family hospital visits – that claim was abandoned in final submissions. It was also plain from the evidence of the plaintiff's mother, Mrs Wright, that the plaintiff's likely contribution to domestic duties around the house was limited anyway. She cooked for him and did his ironing anyway and did some or much of his washing, and his only household duties appeared to be to keep his own room clean and unstack the dishwasher. Those services would have been provided to him by his family in any event, had he not been injured, and are not claimable under the Act: s 12(2).
The claim comes down to the assistance the plaintiff was provided to clean his room, take over his washing completely, and assist him – due to his decreased mobility - with medication, keeping his foot dry when showering, taking him to appointments and generally helping him move about when he had to. Mrs Wright would have done those things no matter when the surgery took place. If, contrary to my findings, the defendant had been negligent in failing to perform surgery earlier, and had that surgery been performed earlier, the plaintiff would still have required any assistance he was initially given.
I have also made findings that the timeframe for the surgery to be performed if it had been arranged by the defendant is likely to have been close – at the same time, or before, or after - to the timeframe of the surgery that in fact occurred. In all of those circumstances I would have made a finding that a reasonable sum for past gratuitous services is an amount of $1,000, which falls well below the threshold provided by the Act: s 12(3) and s 13(1). Accordingly, I would have made no award under this heading.

Travel expenses past and future

Consistent with the findings I have made in relation to the likely timeframe for surgery, and allowing for the fact that numerous medical appointments would have occurred in any event, and also allowing for the fact that the plaintiff may well have require subtalar arthrodesis in the future in any event, I would only have allowed a sum of $200 for past and future travel cost for medical appointments of various kinds.

Past loss of earnings

The plaintiff was employed full-time as a prison guard when he suffered his injury. He claims for loss of past earnings at the pay he was receiving in October 2010, namely $1,011.55 gross, $804.85 net. Had the surgery been performed earlier, the timeframe would still be close to when it was performed, and the plaintiff would most likely not have had any surgery on his heel in any event prior to the knee surgery which he arranged privately. His knee injury would have kept him work before it was healed and, had he had the heel surgery under the auspices of the defendant, I find he would have been off work for six months following that surgery. In late July 2011, he had surgery associated with Hodgkin's lymphoma and accepts that he required months off work to undergo surgery and chemotherapy and makes no claim for loss of earnings during that timeframe.
For him to have lost earnings on account of any negligence on the part of the defendant's staff, the surgery would have had to be performed more than six months prior to late July 2011, in other words prior to late January 2011, because the defendant is not responsible for any six-month recovery period following surgery, whenever it occurred. For reasons I have mentioned earlier, it is highly unlikely that any surgery would have been performed prior to late January 2011 in any event. I am not satisfied the plaintiff lost any past earnings on account of a failure to perform the surgery.

Loss of earning capacity

The plaintiff is now 30. At the time of the accident he had just turned 25. Prior to his accident he was able-bodied and enjoyed his work as a prison guard.
His previous employment had been physical in nature. He worked for a company which made roof products from sheet metal. He has never been an office worker.
In February 2010 he made the change of career. He worked on losing weight and improving his physical fitness in order to get selected. He had previously worked on losing weight, with some success, but was still very overweight. He did his 12-week selection course and began work at Hakea Prison.
A typical shift, as described by Mr MacDonald, does not appear too onerous physically, and is more a matter of keeping an eye on the inmates, but I infer that a guard must be in a position to deal with emergency situations which might arise in such an environment and would be assisted by having a degree of physical presence. There is a response unit presumably for such emergencies, but the guards might still have to deal with situations where physical fitness is important. The buggy shift would not ordinarily be physically onerous for an uninjured person, but it is obviously difficult for the plaintiff. He only had to do that every six weeks, however, and does not appear to have approached his employer for any kind of dispensation, perhaps in part because he only has to do it every six weeks.
The plaintiff is married, he hopes to have children, he works in an area where the salary does not lend itself to early retirement, and there is no reason to think that he would have voluntarily planned an early retirement. He is likely to have wished to work to 67 years of age if his general health permitted. His ongoing difficulty with his weight may have given him problems as he got older.
His capacity for future earnings has been diminished by his heel injury. The literature indicates that, with an injury of this severity, his ability to work in a physical sort of job would likely have been diminished. One study in the literature indicated that almost a quarter of patients do not return to work at all, while others have to change the nature of their employment.
I find the plaintiff was likely, irrespective of the treatment he received, to have suffered some degree of chronic pain in his joint. The development of osteoarthritis was also on the cards, given the severity of the injury-caused damage to the calcaneus, and the subtalar joint. The defendant is not responsible for the fact that the plaintiff suffered a life-changing injury.
I find the likelihood of his having the ability, post-accident, to engage in a high impact activity like running for any real length of time, either as exercise or as a part of his work, was low in any event. The likelihood of his being able to join a response team within the prison system (which was likened to the Tactical Response Group) after sustaining an injury like this, irrespective of how it was treated, was remote. While he was keen to try out for that unit pre‑accident, I am not prepared in any event to work on an assumption that he would have been accepted, given that this unit was likened to the Tactical Response Group of the WA Police. He may have been successful if he had further improved his fitness and if he was otherwise sufficiently athletic and considered suitable.
I find he is likely, irrespective of what treatment he received, to have suffered some ongoing pain and to have found his job tiring and at times painful, particularly those days when he has to walk about 6 km with the buggy, and he is likely to have also found 18 holes of golf tiring and painful. There was already an increased chance of the plaintiff having to retire early.
I have previously found, however, that the delay in surgery did result in arthritic changes to the joint surface. Those changes have increased the plaintiff's chances of developing further crippling osteoarthritic changes. They have made a bad situation worse. I accept that they have increased the likelihood of the defendant having to retire early. That likelihood was there in any event, however.
While the defendant might be able to re-skill in a different area, there is no evidence pointing to what sort of work he might be able to re-skill in, and he has always worked in physical jobs. I have no reason to conclude that he would be better off returning to work in sheet metal fabrication, which is likely to involve a fair degree of standing up.
It is plain enough from the manner in which he testified that he has the intellectual capacity to work in a more sedentary type of job, and allowance needs to be made for his residual work capacity, but there is no evidence pointing to the plaintiff's potential to make a shift to any particular sort of work.
It may be that there is some scope for him to approach his current employer and seek dispensation from the buggy run, or a different method of doing that shift, or lesser hours, or lighter duties, or work in a different capacity within that department. There is no evidence that he has done so. He currently adopts the approach of keeping his pain and difficulties to himself as much as possible, which is understandable, but not helpful to his pain levels.
There is a necessary degree of speculation in prognosticating the likely diminishment suffered in any event to the plaintiff's earning capacity as opposed to the further diminishment suffered as a result of the delay in surgery. But significant allowance should be made for the former, in addition to the usual allowance to be made for the contingencies of life.
While the plaintiff has proposed a figure by means of a calculation, his counsel also acknowledges the appropriateness in such a case of a global assessment. I do consider it inappropriate in a case such as this to attempt precise mathematical equation. I consider this to be an appropriate case for the court to reach a global assessment which includes loss of superannuation. I assess that figure at $50,000.
Had I found for the plaintiff overall, I would therefore have awarded him a total of $76,958.00.