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Medical: Whether failure to diagnose caused harrm.


Williams v Fraser [2022] NSWCA 200 (on Caselaw).

The appellant was born with a condition known as a pars defect or dysplastic spondylolysis.

The appellant’s general practitioner referred her (when aged 18) for X-rays of the hip and pelvis which were taken on 24 May 2012. Although (as was not disputed) the X-rays revealed the presence of the congenital pars defect, a report prepared by the respondent, a radiologist, failed to identify the defect. The appellant’s orthopaedic surgeon, Dr Stening, was provided with the X-rays and also did not identify a pars defect, relying on the respondent’s report; rather, Dr Stening made a diagnosis of left and right ASIS apophysitis, ordered conservative cortisone treatment and referred the appellant to a physiotherapist.

The appellant brought proceedings against the respondent radiologist, alleging that his failure to identify either spondylolysis or spondylolisthesis constituted a breach of his duty of care, the consequence of which was that Dr Stening did not institute appropriate clinical management or investigation and she 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 respondent admitted that his failure to identify the pars defect constituted a breach of the duty of care that he owed the appellant, but denied that it caused the appellant’s chronic pain syndrome.

Having regard to the expert evidence, the primary judge 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. Accordingly, the primary judge held that the appellant had not established a causal link between the respondent’s failure to diagnose the appellant’s condition and the need for the surgery and the consequent chronic pain syndrome. See Williams v Fraser [2021] NSWSC 416 (on Austlii).

On appeal, the appellant contended that the primary judge erred by: (1) failing to address the appellant’s submissions on causation; (2) failing to provide adequate reasons on the issue of causation; (3) failing to make relevant findings on the issue of causation; (4) making errors in the factual analysis and reasoning underpinning the causation conclusion; (5) 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 (per Simpson AJA, Macfarlan and Gleeson JJA agreeing) dismissed the appeal with costs and held:

1.   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: at [88]-[89] per Simpson AJA; at [5]-[6] per Macfarlan JA.

2.   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 child care centre caused disc or other damage was not a case made at trial: at [102] per Simpson AJA. 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: at [98] per Simpson AJA. 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: at [100]-[101] per Simpson AJA.

3.   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: at [110]-[123] per Simpson AJA.

4.   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: at [127] per Simpson AJA. 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: [128]-[131] per Simpson AJA.

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20; Sellars v Adelide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4; Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 considered.

[BillMaddensWordpress #2045]



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