Background
Her symptoms were treated conservatively, however, by March 2012, when the appellant was aged 18 years, the pain in her left hip returned.
Her treating GP referred her for x-ray scans of the hip and pelvis which were taken on 24 May 2012. The findings of the x-ray scans revealed the presence of the congenital pars defect.
The respondent, a radiologist, examined both x-ray scans and reported that there were no abnormalities of the hip joints and that there was no evidence of arthropathy or other bony abnormality. In short, he failed to identify the defect.
The appellant’s orthopaedic surgeon, was subsequently provided with the x-ray reports but also failed to identify a pars defect, relying on the respondent’s report. Rather, the surgeon made a diagnosis of left and right ASIS apophysitis, ordered conservative treatment and referred the appellant for physiotherapy.
The appellant’s problems became worse, and she was struggling with her work at a childcare centre. She continued to have low back and hip pain and then began to experience urinary incontinence.
On 5 June 2013, she underwent a lumbar spine x-ray which showed 15% spondylolisthesis at L5 on S1. She was referred to another orthopaedic surgeon who noted the findings of the x-rays and performed urgent back surgery (a spinal decompression and fusion) on her.
Following the surgery, the appellant developed a secondary chronic pain syndrome, a condition from which she continues to suffer. Although the operation had been performed competently, the appellant’s continuing pain syndrome was a direct consequence of the surgery.
The Primary Hearing
The appellant brought proceedings against the radiologist alleging that his interpretation and report of the 24 May 2012 x-ray failed to identify the presence of both spondylolysis and (importantly) spondylolisthesis, and that his failure to do so constituted a breach of his duty of care. The consequence of this breach of duty was that the surgeon did not institute appropriate clinical management or radiological investigation. The appellant suffered progressive damage to her spine that could have been avoided if her condition had been properly diagnosed and treated from 24 May 2012.
At trial, the doctor admitted that his failure to identify the pars defect constituted a breach of the duty of care that he owed the appellant. However, he denied that his breach of duty caused the appellant’s chronic pain syndrome.
The primary judge considered the expert evidence but was unable to be satisfied that, on the balance of probabilities, earlier conservative intervention or management would have altered the progression of the appellant’s condition or averted the need for surgery. The primary judge therefore held that the appellant had not established a causal link between the failure to diagnose the appellant’s condition and the need for the surgery and the consequent chronic pain syndrome.
The Appeal
Four of the five grounds of appeal were directed to the primary judge’s approach to the issue of causation. The fifth ground of appeal related to the concept of a ‘loss of a chance’.
Specifically, the appellant contended that the primary judge erred by:
- failing to address the appellant’s submissions on causation;
- failing to provide adequate reasons on the issue of causation;
- failing to make relevant findings on the issue of causation;
- making errors in the factual analysis and reasoning underpinning the causation conclusion; and
- misdirecting himself in his analysis of the evidence of two medical practitioner witnesses by finding that their evidence ‘amounted to a loss of a chance’.
The Court ultimately found that no ground of appeal had been made out. The appeal was dismissed with costs.
In reaching this decision, the Court held the following:
- On the basis of the expert evidence, including the first and second conclave reports and the joint report of orthopaedic specialists, the conclusion that the appellant already had the condition of spondylolisthesis was inevitable, notwithstanding the radiologists’ evidence that radiological signs of spondylolisthesis were not present on the 24 May 2012 X-rays. Accordingly, the primary judge was not shown to have been in error in approaching the question of causation on the basis that the appellant already had the condition of spondylolisthesis.[1]
- The appellant’s submission that the primary judge mischaracterised the appellant’s case should be rejected, as the appellant’s contention that her continued work in the childcare centre caused disc or other damage was not a case made at trial.[2] There was no evidence that the appellant’s employment between May 2012 and June 2013 in fact aggravated her condition or caused disc or other damage.[3] In any event, the appellant did not pursue a separate case of damage constituted by disc and other damage; the cause of action on which the appellant sued was based upon damage constituted by her chronic pain syndrome.[4]
- The overall medical evidence was insufficient to establish, on the balance of probabilities, that the appellant would have ‘stabilised out’ and avoided surgery. It follows that the primary judge did not err by finding that, regardless of the respondent’s negligence, the appellant inevitably faced surgery.[5]
- It is conclusively established that, in a claim for damages for personal injury caused by medical negligence, proof of a lost opportunity for a better outcome of treatment is insufficient; damage must be established on the balance of probabilities.[6] The appellant’s proposition that the primary judge proceeded on the basis that the appellant’s claim was for ‘loss of a chance’ is untenable. The primary judge was acutely aware of the distinction between proof of damage on the balance of probabilities and proof that appropriate treatment would have offered the appellant a chance of a better outcome. As for the appellant’s submission that the primary judge erred by failing to determine the matter from a Malec v J C Hutton Pty Ltd perspective, that decision was concerned with the assessment of damages after liability had been established and as such is not relevant to this appeal.[7]
To read the decision in Williams v Fraser [2022] NSWCA 200, click here.
[1] at [88]-[89] per Simpson AJA; at [5]-[6] per Macfarlan JA.
[2] at [102] per Simpson AJA.
[3] at [98] per Simpson AJA.
[4] at [100]-[101] per Simpson AJA.
[5] at [110]-[123] per Simpson AJA.
[6] at [127] per Simpson AJA.
[7] [128]-[131] per Simpson AJA.
