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nsw_caselaw:5b6138ebe4b0b9ab4020e477:167 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [53] The trial Judge adopted the conclusion of Brereton J in Vukic v Grbin [2006] NSWSC 41 at [33] that in a proprietary estoppel case, as distinct from a windfall equity case, “the expectation basis of the equity favours the view that the prima facie entitlement is to satisfaction of the relevant expectation.” She held that this was not a windfall equity case and that there were no special circumstances which required an award of something less than the plaintiff’s expectation. The expression “windfall equity” in the present context was coined by Young CJ in Eq in Henderson v Miles (No 2) [2005] NSWSC 867 at [19] to describe that enforced in Muschinski v Dodds [1985] HCA 78 ; 160 CLR 583, 620 and Baumgartner v Baumgartner [1987] HCA, 164 CLR 137, 148. It is not relevant in this case.
[54] In Sullivan v Sullivan [2006] NSWCA 312 I considered the principles which govern the grant of relief in an estoppel by encouragement case. What follows is based on paras [11]–[32] in that judgment. | 167 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:168 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [55] A proprietary estoppel by encouragement may be established where the conduct of the party estopped did not define the expectation: Plimmer v Mayor of Wellington (1884) 9 App Cas 699 at 713; Flinn v Flinn [1999] 3 VR 712 CA, 738–9, 742, 743; Gillett v Holt [2001] Ch 210 CA, 226 per Robert Walker LJ “[T]he quality of the assurances which give rise to the claimant’s expectations” is an important factor: Jennings v Rice [2003] 1 P & CR 100 at 112 and 114 per Robert Walker LJ repeating what he said in Gillett v Holt [2001] Ch 210 at 225: “the quality of the relevant assurances may influence the issue of reliance [and] reliance and detriment are often intertwined”, which was approved by the Privy Council in Henry v Henry [2010] 1 All ER 988 PC, 995, 1000. | 168 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:169 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [56] Although there are statements in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; 164 CLR 387 and Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 that relief in these cases must be limited to removing or reversing the detriment suffered by the party entitled to the estoppel, the joint judgment in Giumelli [1999] HCA 10; 196 CLR 101, 120, 125 established that there is no such restriction. The detrimental reliance that supports the estoppel need not constitute, in any sense, a consideration moving to the party bound. It is a unilateral element of the estoppel and not the price paid for it.
[57] Relief depends very much on the facts and, as the Privy Council said in Plimmer (1884) 9 App Cas 699 at 714:
… the court must look at the circumstances in each case to decide in what way the equity can be satisfied.
… | 169 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:170 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [59] It has been said that the Court should frame the relief to enforce “the minimum equity to do justice to the plaintiff”: Crabb v Arun DC [1976] Ch 179 CA, 198 per Scarman LJ … The minimum equity principle was applied in Verwayen [1990] HCA 7; 170 CLR 394 by Mason CJ at 441, and Brennan J at 429, 430, but since Giumelli is probably not the law in this country. It was only mentioned once, and then only in passing in the speeches in Thorner v Major [2009] 1 WLR 776. This was to the statement of issues in the Court of Appeal: ibid at 792.
… | 170 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:171 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [61] Relief may be refused or reduced if the plaintiff’s equity has been diminished by later events. In Sledmore v Dalby (1996) 72 P & CR 196 CA the court held that the plaintiff’s equity based on his improvements had been fully amortized over 18 years of rent free occupation. Subsequent events may also enlarge the plaintiff’s equity as in Crabb v Arun DC [1976] Ch 179 CA where the defendant’s repudiation of the expectation had landlocked the plaintiff’s land for five years: ibid at 189, 199. | 171 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:172 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [62] Relief may also be limited where the enforcement of the plaintiff’s expectation would be out of all proportion to the detriment: hello [2003] 1 P & CR 100 CA, 104, 111, 115. This is particularly so where the expectation was not defined and the court has a broader discretion: ibid at 114. A gardener had looked after an elderly widow and been promised that “he would be alright” and “this will all be yours one day”. He was awarded £200,000, and the Court of Appeal rejected his claim to the house and contents worth £435,000. | 172 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:173 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [63] The Court should, prima facie, enforce a reasonable expectation which the party bound created or encouraged: Meagher Gummow & Lehane “Equity Doctrine and Remedies” 4th ed 2002, pp 567–8. In Ramsden v Dyson (1866) LR 1 HL 129 at 170 Lord Kingsdown said: “If a man … under an expectation created or encouraged by the landlord that he shall have a certain interest [acts to his detriment] upon the faith of such expectation … a Court of equity will compel the landlord to give effect to such … expectation” (Lord Kingsdown’s principle). In Chalmers v Pardoe [1963] 1 WLR 677 PC, 681–2, the Privy Council said that if such an estoppel is established “a court of equity will prima facie require the owner … to fulfil his obligation”. In Attorney-General (Hong Kong) v Humphreys Estate (Queen’s Gardens) Ltd [1987] AC 114 at 121 Lord Templeman said: | 173 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:174 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | The authorities expound and illustrate the principle upon which a litigant who is led to believe that he will be granted an interest in land and who acts to his detriment in that belief is enabled to obtain that interest.
[64] In Giumelli (above) the joint judgment at 123 quoted with approval this statement of Deane J in Verwayen [1990] HCA 39, 170 CLR at 443:
Prima facie, the operation of an estoppel by conduct is to preclude departure from the assumed state of affairs. It is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded.
[65] The joint judgment continued:
The prima facie entitlement to which his Honour had referred would be qualified if that relief “would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party”.
… | 174 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:175 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 220. In the present case, there was an assertion made on behalf of Ms Mayhew that it was necessary for her to sell Lots 1 and 2 in order to provide for Mr Stewart’s needs, although there was no evidence on this issue. In particular, there was no evidence about whether Mr Stewart had other assets, or whether the sale of Lot 2 would be sufficient for the purpose of providing for Mr Stewart.
221. Handley AJA referred to the significance of the vicissitudes of life that may befall the promisor, after the promise or assurance has been made:
[79] Mr Harper relied on the vicissitudes of life which may have required the deceased to mortgage or sell the subject property despite his promise in the consent orders. However the Court was not referred to any decision where adverse vicissitudes affected the enforceability of an estoppel by encouragement or the quantum of relief.
[80] The question was averted to but sidestepped in Thorner v Major. Lord Scott said at pp 783–4: | 175 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:176 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | … inherent in every case in which a representation about inheritance prospects is the basis of a proprietary estoppel claim is that … the circumstances of the representor … may change … If, for example, [the promisor] had become, before his death, in need of full time nursing care, so that he could not continue to live at [the farm] or continue as a farmer and needed to sell [the farm] or some part of it in order to fund the costs of necessary medical treatment and care, it seems to me questionable whether [the claimant’s] equity … would have been held … to bar the realisation of [the farm], or some sufficient part of it, for those purposes … for my part, I doubt it.
[81] Lord Walker at p 794 and Lord Neuberger at p 805 adopted the following passage from the unreported judgment of Hoffmann LJ in Walton v Walton (1994): | 176 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:177 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | … equitable estoppel [by contrast with contract] … does not look forward into the future [it] looks backwards from the moment when the promise falls due to be performed and asks whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept.
[82] Lord Walker added at p 796:
it is unprofitable, in view of the retrospective nature of the assessment which the doctrine of proprietary estoppel requires, to speculate on what might have been.
[83] Lord Neuberger said at p 802:
… if [the promisor] had changed his mind before he died, the question as to what, if any, relief should have been accorded to [the claimant] would have been a matter for the Court, to be assessed by reference to all the facts.
[84] He added that the promisor may have been able to change his mind “if this … could be justified by a change of circumstances.” | 177 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:178 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [85] The effect of life’s vicissitudes on the deceased’s promises is relevant here only when considering the reasonableness of the plaintiff’s reliance, and the significance of her changes of position.
[86] Hoffmann LJ, in another passage in Walton v Walton (above) quoted by Lord Walker at p 794, referred, without elaboration, to the “unspoken and ill-defined qualifications” on testamentary promises. These are inherent in a promise to be performed when the promisor has no further need for the property. | 178 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:179 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [87] I see no reason for devaluing the plaintiff’s reliance and detriment because of the possible effect of adverse vicissitudes on the deceased. In any event he had other assets of substantial value. It is unnecessary in this case, as it was in Thorner v Major, to determine the rights of the parties in hypothetical circumstances in the deceased’s lifetime. Compare the position where parties have made mutual wills: Birmingham v Renfrew [1937] HCA 52; 57 CLR 661, 674, 689; Re Goodchild [1996] 1 WLR 694 at 700.
[88] The arrangement between these parties was for the deceased to have the use of the subject property in his lifetime but when he no longer had any need for it it was to pass to the plaintiff. In the events that happened performance of his assurance involved no opportunity cost other than a restriction on his testamentary freedom. | 179 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:180 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [89] If and when the enforceability of such a promise does arise in the lifetime of a promisor faced, in compelling circumstances, with the need to resort to the capital value of the property, the doctrine of frustration of contracts may be thought relevant. In Davis Contractors Ltd v Fareham UDC [1956] AC 696 at 729 Lord Radcliffe said:
… frustration occurs whenever the law recognizes that without fault of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do. | 180 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:181 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 222. In so far as the first basis of Mr Lewis’ claim is breach of contract, the decision of Ward J (as her Honour then was) in Dable v Peisley [2009] NSWSC 772 illuminates the obvious proposition that, for any promise to make a will to be enforceable as a contract, the ordinary incidents of the creation of contractual obligations must be established. An offer must be made by one party, which is accepted by the other, whereby consideration is provided by the promisee for the promisor’s promise to make a will in the promisee’s favour. There must be an intention to create a contract, which is a requirement that will often be absent within families or close personal relationships. Alternatively, a unilateral contract may arise where the promisor’s offer to make a will in the promisee’s favour is to be accepted by the promisee acting for the benefit of the promisor in a manner that constitutes both the acceptance of the offer and the provision of the consideration to make the promise binding. | 181 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:182 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 223. On this subject, Ward J said:
[102] The contract claim is based on the submission that promises made by the deceased to leave his whole estate to the Dables amounted, in effect, to an offer capable of acceptance by the conduct of the plaintiffs in continuing to look after the deceased and thus giving rise to a “unilateral” contract. It was said by Mr Horsley that the nature of such a promise (to leave the whole of one’s estate to someone, rather than merely to make a will in that person’s favour) was inconsistent with any implication of revocability. In other words, the Dables seek to distinguish this case from cases such as Taylor v Dickens, where, in the absence of a promise not to revoke the will, a promise to make a will in favour of a party was held not to give rise to an enforceable contract (on the basis, in that case, that it would be open, consistently with the contract, for a will to be made and then revoked). | 182 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:183 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [103] The defendants, on the other hand, contend that for the Dables to succeed on the contractual claim it must be established that the promise made by the deceased included a promise never to revoke or alter his will. Reference was made by the defendants in this regard to Barnes v Alderton [2008] NSWSC 107 at [58] in aware that everyone can change their will as often as they like” and that the court will which Young CJ in Eq (as his Honour then was) noted that “people are well aware that everyone can change their will as often as they like” and that the court will infer this unless there is evidence to the contrary.
[104] In Gillett v Holt [1998] 3 All ER 917 at 950 Carnwath J referred (in the context of proprietary estoppel) to the statement that one should not count one’s chickens before they hatched as being: | 183 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:184 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [A]n apt statement of how, in normal circumstances, and in the absence of a specific promise, any reasonable person would regard — and should be expected by the law to regard — a representation by a living person as to his intentions for his will.
On appeal ([2001] 1 Ch 210 at 228), Robert Walker LJ (as his Lordship then was) quoted that passage and went on to comment that:
In the generality of cases that is no doubt correct, and it is notorious that some elderly persons of means derive enjoyment from the possession of testamentary power, and from dropping hints as to their intentions, without any question of an estoppel arising.
… | 184 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:185 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [109] The reluctance of courts to assume such an intention in this area was recognised by Hoffman LJ in Walton v Walton (1994, CA, unreported) (as quoted in Thorner v Major [2009] UKHL 18 at [57]): “in many cases of promises made in a family or social context, there is no intention to create an immediately binding contract”. One reason identified by his Lordship for the reluctance of the law to assume such an intention was that such promises are often subject to unspoken and ill-defined qualifications in relation to what might happen in the future.
224. In Menczer v Menczer [2009] NSWSC 1466, White J (as his Honour then was) said on this issue: | 185 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:186 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [55] Notwithstanding that the agreement was in writing and was signed in front of a justice of the peace, I would not infer that there was an intention to contract. As Ward J said in Dable v Peisley [2009] NSWSC 772 (at [109]), courts are reluctant to assume that parties have an intention to contract in this area where agreements are made in a family or social context and where such promises are often subject to unspoken and ill-defined qualifications in relation to what might happen in the future. As her Honour said (at [111]), it might be thought that if it were intended that the deceased would be legally committed to a promise to leave her estate, there would be some mechanism by which if there were to be a change in circumstances or in her relationship with her grandson, the question of whether the promise was to stand, and if not, how, the services provided up to that time would be recognised, would have to be taken into account. | 186 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:187 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 225. Unlike in Dable v Peisley (see [123]), in the present case the subject matter of the alleged promise to leave property by will was unquestionably real property, being Lot 1. Accordingly, ss 23C and 54A of the Conveyancing Act 1919 (NSW) will apply in accordance with their terms to the alleged contract. As there is no suggestion that the contract was in writing, even if it is proved, it will not be enforceable unless Mr Lewis is able to rely upon part performance to avoid the operation of the statute: see Dable v Peisley at [124] to [126].
226. In Saliba v Tarmo [2009] NSWSC 581, Nicholas J, in considering whether a proprietary estoppel by encouragement claim had been made out in relation to a promise made before the death of the deceased to leave half of her estate to the plaintiffs, adopted, as have many other judges, the summary of the relevant principles provided by Brereton J, as follows: | 187 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:188 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [52] In Vukic v Luca Grbin: Estate of Zvonko Grbin [2006] NSWSC 41 Brereton J provided the following summary of the relevant principles, which I respectfully adopt: | 188 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:189 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Equity comes to the relief of a plaintiff who has acted to his or her detriment on the basis of a fundamental assumption in the adoption of which the defendant has played such a part that it would be unfair or unjust if he or she were left free to ignore it, on the footing that it would be unconscionable for the defendant to deny the assumption [Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 675; Thompson v Palmer (1933) 49 CLR 507 at 547; Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 at 404 (Mason CJ and Wilson J)]. It is essential to an equitable estoppel that the defendant knows or intends that the party who adopts it will act or abstain from acting in reliance on the assumption or expectation [Crabb v Arun District Council [1976] Ch 179 at 188; Waltons v Maher, 423 (Brennan J)]. Such knowledge or intention may easily be inferred where the adoption of the assumption or expectation is induced by the making of a promise, but may also be found where the | 189 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:190 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | defendant encourages a plaintiff to adhere to an assumption or expectation already formed, or acquiesces in an assumption or expectation when in conscience objection ought to be stated [Waltons v Maher, 423 (Brennan J)]. The unconscionability which attracts the intervention of equity is the defendant’s failure, having induced or acquiesced in the adoption of the assumption or expectation with knowledge that it would be relied on, to fulfil the assumption or expectation or otherwise avoid the detriment which that failure would occasion [Waltons v Maher, 423 (Brennan J)]. | 190 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:191 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 227. As I noted in Ak-Tankiz v Ak [2014] NSWSC 1044, in Dable v Peisley at [24], Ward J distinguished Saliba v Tarmo without suggesting that Nicholas J’s acceptance of the principles expounded by Brereton J was incorrect, and indeed she set out those principles with approval at [128]. Her Honour’s judgment demonstrates the need for the Court to look closely at the evidence in order to identify with precision the content of the assurance given by the deceased, and to decide whether there was sufficient detrimental reliance on the assurance, such as to make it unconscionable for the deceased, or the deceased’s estate, to depart from the assurance.
228. It is also necessary for the Court to bear in mind the need for care in accepting evidence concerning the giving of assurances by the deceased person where the evidence of the claimant cannot be contradicted by the alleged maker of the assurance. Ward J said: | 191 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:192 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [130] The difficulties facing the court where a claim is based on an assurance made by a deceased have been noted in many cases. In Weeks v Hrubala [2008] NSWSC 162 (at [20]), Young CJ in Eq stated:
In a case of a person suing a deceased estate the court normally looks for some sort of corroboration: see Re Hodgson (1886) 31 Ch D 177 even though, as a matter of law, corroboration is not absolutely necessary. Experience, however, shows that when plaintiffs are making a claim against a deceased estate the court is wise to look for corroboration.
[131] In Vukic and Saliba, their Honours both emphasised that the court must closely scrutinise claims against an estate in circumstances where the only person who can contest the issue is deceased. | 192 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:193 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 229. Although Mr Stewart is still alive, I consider these provisions to be applicable because his absence of legal capacity to conduct his own defence has had the result that he has been totally unable to respond to, or to contradict where appropriate, the evidence tendered in support of Mr Lewis’ case. | 193 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:194 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Consideration
230. I consider that this case is one that is required largely to be decided upon the facts. | 194 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:195 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 231. Although I have given Mr Lewis leave to amend his statement of claim to plead a claim based upon a contract between himself and Mr Stewart that Mr Stewart would leave Lot 1 to Mr Lewis if Mr Lewis continued to clean up and remediate Lots 1 and 2, that Mr Lewis is entitled to damages because Mr Stewart has repudiated his obligations under the contract, I reject that claim. I do so principally for the fundamental reason that, in my view, even on an analysis of the evidence given by Mr Lewis and Steven Lewis most favourable to Mr Lewis’ claim, it cannot be concluded that there was a bargain between Mr Lewis and Mr Stewart that was capable of giving rise to contractual obligations. For the Court to be able to find that a contract was entered into between two parties, when it looks at the facts it must find that each party made a promise to the other in return for that other’s promise to the first party, or alternatively, in the case of a unilateral contract, the first party must make a promise to the other, | 195 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:196 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | where the offer constituted by that promise must be accepted by the other performing the act required by the first party. In very simple terms there must be a ‘deal’. In my opinion it is quite clear in the present case that there was no such deal. There is no suggestion that Mr Lewis made any promise to Mr Stewart in respect of continuing the cleaning up and the remediation of the properties. There is no suggestion that Mr Stewart said that he would leave Lot 1 to Mr Lewis in his will on the condition that Mr Lewis would continue to clean up and remediate the properties. | 196 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:197 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 232. On the facts, no obligation was imposed upon Mr Lewis. As a subsidiary matter, even if it were possible to discern an obligation accepted by Mr Lewis, its content was not defined in any way. The supposed contract between Mr Lewis and Mr Stewart would have been illusory, as there was no definition of what cleanup and remediation works were required of Mr Lewis, so it could not have been known whether or not Mr Lewis had complied with his own obligations.
233. As I have found that Mr Lewis and Mr Stewart did not enter into a binding contract, the question of whether Mr Stewart repudiated that contract at the time that he lost legal capacity without having already made a will leaving Lot 1 to Mr Lewis does not arise. In my view, had that question arisen, it would have given rise to difficult practical and theoretical questions. | 197 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:198 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 234. One problem would be that, even though Mr Lewis has accepted that the effect of the stroke suffered by Mr Stewart has rendered him legally incapable for the purposes of conducting his own defence, there has been no evidence at all concerning the true nature of Mr Stewart’s disability, whether the disability extends to depriving him of capacity to make a will, and whether or not there is any chance of him regaining that capacity. I would feel a great inhibition about even commencing a consideration of whether Mr Stewart’s conduct could constitute the repudiation of the alleged contract, solely on the basis of an agreement between the parties that he required a tutor and is incapable of conducting his own defence of the present litigation. | 198 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:199 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 235. It is likely that the conjunction between the principles that govern when a contract is repudiated by reason of a contracting party becoming incapable of performance, and the principles considered by Handley AJA as discussed above concerning the contingent operation of contracts to make or not to revoke or alter wills, would give rise to acutely difficult problems, if they were required to be resolved in the present case. I suggest rhetorically: even if Mr Stewart’s stroke has had the effect that he is now permanently incapable of making a will with the required term, how can it now be said that he has repudiated the contract by his inaction, while he remains alive, and contingencies could fall in following his death that would in any case have denied the right in Mr Lewis to inherit Lot 1?
236. As it is not necessary that these questions be explored, and as the parties have not put any detailed submissions concerning their proper resolution, I will say nothing further on the subject. | 199 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:200 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 237. It is also not necessary for the Court to resolve the question whether Mr Lewis has undertaken sufficient acts of part performance so that the contract with Mr Stewart would be enforceable notwithstanding the absence of writing.
238. The real question is whether, by his assurances and representations to Mr Lewis to the effect that he would leave Lot 1 to Mr Lewis in his will, or later that he had already done so, Mr Stewart has encouraged Mr Lewis to undertake sufficient works following the initial time the assurance was given in 2003, to make it unconscionable to permit Mr Stewart to depart from his assurances and representations, by reason of the detriment that would cause to Mr Lewis. | 200 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:201 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 239. I am firmly satisfied on the balance of probabilities that Mr Stewart did make to Mr Lewis the assurances and representations that Mr Lewis has claimed, substantially in the form and manner alleged, and that in reliance upon those assurances and representations Mr Lewis continued to engage in the cleanup and remediation works the subject of his evidence in these proceedings, from 2003 until some time in about 2014 or 2015, when Mr Lewis was informed that he would be required to vacate Lot 1.
240. Although there are many unsatisfactory aspects of Mr Lewis’ evidence, I accept his evidence as being truthful on the fundamental issue of whether or not Mr Stewart made the assurances and representations as claimed.
241. I consider Mr Lewis’ evidence in this regard to have been effectively corroborated by the evidence of Steven Lewis, which I am satisfied I should accept. | 201 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:202 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 242. Although there is considerable uncertainty at the margins as to the precise amount and nature of the work done by Mr Lewis on the faith of the assurances and the representations, I am satisfied by the evidence considered above that Mr Lewis carried out substantial such works after 2003.
243. I am fortified in my conclusions by the evidence of the closeness of the relationship between Mr Lewis and Mr Stewart until well after 2003, which is an issue that was not challenged by Ms Mayhew on behalf of Mr Stewart. On the one hand, such a relationship would explain why Mr Lewis was prepared voluntarily to undertake substantial works for the benefit of Mr Stewart before 2003, but on the other, it would provide a basis for Mr Stewart to promise the making of a provision in his will, which otherwise would have been an improbable way for Mr Stewart to reward Mr Lewis for his efforts. | 202 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:203 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 244. Although goodwill towards Mr Stewart (and perhaps some shame for the state of the properties caused by his father’s mining operations) may have initially sustained Mr Lewis’ preparedness to carry out considerable cleanup and remediation works voluntarily, I consider it to be highly probable that the fact that Mr Lewis was prepared to continue to carry out the works for some 10 further years is consistent with Mr Lewis having a belief that he would receive a reward that made the whole effort worthwhile. I consider that it would have been highly improbable that Mr Lewis would have continued with the cleanup and remediation works, in the absence of any other reward, if he had not believed that by one means or another he would receive title to Lot 1. | 203 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:204 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 245. It is impossible to know whether, when Mr Stewart made the assurances and representations, in his mind he thought they would be binding and taken seriously by Mr Lewis. However, I am satisfied from the extensive nature of the works, that it was reasonable from Mr Lewis’ perspective to consider the statements made by Mr Stewart to be binding, and that Mr Lewis genuinely did believe that Mr Stewart would honour his assurances.
246. There is no evidence of Mr Stewart having immediate family, such as children, that would give rise to such an expectation that Mr Stewart would leave his estate wholly to parties other than Mr Lewis, that should reasonably have caused Mr Lewis to doubt that Mr Stewart genuinely intended to implement his assurances. | 204 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:205 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 247. There is no evidence as to the value of Lot 1 at relevant times, most particularly at the times that Mr Stewart initially made the assurances and representations. There is no evidence therefore that the value of Lot 1 is so great in proportion to the value of the works undertaken by Mr Lewis, that if the Court held Mr Stewart, or his estate, to the assurances made, that would exceed what could be justified by the requirements of conscientious conduct and would be unjust to Mr Stewart as the estopped party.
248. I therefore find in principle that, by reason of the many encouragements he gave to Mr Lewis, Mr Stewart is estopped from denying that Mr Lewis is entitled to a beneficial interest in Lot 1, which he will ultimately be entitled to enjoy if, upon Mr Stewart’s ultimate death, no contingency occurs that would have the effect of denying Mr Lewis that beneficial interest in Lot 1, on the hypothesis that Mr Stewart had acted in accordance with his assurances and made a will leaving Lot 1 to Mr Lewis. | 205 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:206 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 249. However, I am not satisfied that Mr Lewis has established that the remedy required in equity to avoid unconscionable conduct on Mr Stewart’s part extends to full and absolute beneficial ownership of Lot 1, subject to the contingencies that have been discussed above which can affect the entitlement of a person who has the benefit of a contract by another person to make a will in the first person’s favour. | 206 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:207 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 250. On Mr Lewis’ own case, he agreed to pay the rates from the time in 2003 when he ceased paying rent, and he did not pay the rates. Mr Lewis has had the benefit of rent-free occupancy of Lot 1 and part of Lot 2 for the whole of that period. In my view, Mr Lewis should be required to give credit to Mr Stewart (or his estate when the time comes) for an appropriate amount in respect of Mr Lewis’ occupation of the property. Whether that amount should be measured by reference to the unpaid rates, or an occupation fee calculated on some other basis, is a matter that I consider remains open. It may also be relevant to have regard to periods during which Mr Lewis conducted a business from the property, as opposed to periods when he did not. These matters remain unclear, in part as a result of the reality of the manner in which the case was conducted, whereby the question of the quantum of any remedy was deferred. | 207 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:208 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 251. A much more difficult question arises out of the possibility, which remains exceedingly unclear on the evidence, that by reason of Mr Stewart’s illness, or some other unknown consideration, Mr Lewis continued to perform substantial works on the property after Mr Stewart had ceased to be able to give his immediate approval or acquiescence, and that Mr Lewis has carried out works of which Mr Stewart did not approve, as if Mr Lewis was entitled to the interest in Lot 1 promised to him before he had actually received it by means of the execution of Mr Stewart’s will. A matter not explored in the evidence is whether the work carried out by Mr Lewis improved the value of the property, or not. As Mr Lewis was not entitled to treat the property as his own, and was only entitled to alter the nature of the property with Mr Stewart’s consent, it is possible that some works undertaken by Mr Lewis could have a bearing on the determination of the appropriate remedy to be granted to Mr Lewis, to ensure that the remedy | 208 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:209 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | is consistent with equity’s requirement of conscientious conduct on Mr Stewart’s part. | 209 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:210 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 252. I have mentioned above that I agreed with counsel for the parties to decide this case upon the basis of written submissions, subject to the right to call for additional submissions if I thought that to be necessary in the absence of the Court having the opportunity to receive oral submissions on behalf of the parties.
253. I have come to the conclusion that the finding that I have expressed as to the outcome of the present proceedings in principle should be as far as the Court should go without giving the parties an opportunity to make further submissions concerning the orders that the Court should now make, and any further case management orders that should be made for the further prosecution of these proceedings. | 210 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:211 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 254. While it seems to me, given the contingent effect even of estoppels that arise in the context of assurances as to the terms of a party’s will, that the in principle result I have stated above properly describes the nature of the rights that Mr Lewis has established, I do not consider that I have heard full argument on that issue. The difficulty arises from the inherently contingent nature of the rights that may be founded on the existence of the estoppel. For my own part, I would hold that the existence of the contingency does not prevent Mr Lewis having present rights, and probably even proprietary rights, in respect of Lot 1. There must, however, be a need for careful consideration of the true nature of the rights that can exist at this time, and also as to what remedies are available pending the time, if it arises, when Mr Lewis’ interest ceases to be contingent. | 211 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:212 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 255. As a separate matter, I am aware that Mr Lewis has said that his caveat has lapsed. I have also been told of a proposal on the part of Ms Mayhew to sell Lots 1 and 2 to be able to provide for the financial needs of Mr Stewart. There was a positive suggestion on the part of Mr Lewis during the hearing that it would be desirable for the properties to be sold and that Mr Lewis’ entitlement, measured in money, should be ascertained after the sale of the properties.
256. These subsidiary issues raise questions concerning the operation of the principles that govern contracts to make wills, as well as estoppels that may have an equivalent effect, during the continuation of the life of the promisor.
257. I will deliver these reasons for judgment, and fix a time for a further directions hearing, at which the Court can hear from the parties and determine the future course of these proceedings. | 212 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:213 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 258. I will also hear from the parties as to whether it is appropriate for the Court to make any costs order at this stage, and if so, what that order should be. | 213 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:214 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | **********
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 August 2018 | 214 |
nsw_caselaw:178fd5962177b5b782d5c74c:0 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Supreme Court
New South Wales | 0 |
nsw_caselaw:178fd5962177b5b782d5c74c:1 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Medium Neutral Citation: Williams v Fraser [2021] NSWSC 416
Hearing dates: 15-18, 22, 24-26, 29 June, 1 July and 22 September 2020
Date of orders: 20 May 2021
Decision date: 20 May 2021
Jurisdiction: Common Law
Before: Harrison J
Decision: (1) Judgment for the defendants.
(2) Costs reserved. | 1 |
nsw_caselaw:178fd5962177b5b782d5c74c:2 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Catchwords: MEDICAL NEGLIGENCE – 18 year old plaintiff with undiagnosed congenital pars defect – where radiologist failed to report on the existence of the defect in mid-2012 – where radiologist admitted breach of duty – where plaintiff alleges that she complained of symptoms to orthopaedic specialist that were indicative of her congenital condition – where orthopaedic surgeon denies any such complaint – where plaintiff not thereafter treated conservatively – where plaintiff subsequently required spinal surgery in mid-2013 – whether plaintiff’s loss and damage caused by radiologist’s breach – whether conservative management of the condition during intervening 12 months would have avoided deterioration of her condition or the need for surgery with severe consequences or whether the outcome was unavoidable even if correctly treated and managed – standard of proof – whether plaintiff established loss and damage on balance of probabilities or merely a statistical chance that her condition could | 2 |
nsw_caselaw:178fd5962177b5b782d5c74c:3 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | have been successfully managed without surgery if diagnosed earlier | 3 |
nsw_caselaw:178fd5962177b5b782d5c74c:4 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Legislation Cited: Civil Liability Act 2002 (NSW), Part 1A, ss 5B, 5D, 5I, 5O
Cases Cited: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Bergman v Haertsch [2000] NSWSC 528
Bolitho v City and Hackney Health Authority [1998] AC 232; [1997] UKHL 464
Browne v Dunn (1893) 6 R 67
Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55
Connor v Blacktown District Hospital [1971] 1 NSWLR 713
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Morris v Hanley (2003) 173 FLR 83; [2003] NSWSC 42
Najdovski v Crnojlovic [2008] NSWCA 175
Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 | 4 |
nsw_caselaw:178fd5962177b5b782d5c74c:5 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Oneflare Pty Ltd v Chernih [2017] NSWCA 195
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12
Category: Principal judgment
Parties: Hailee Williams (Plaintiff)
John Fraser (First Defendant)
Michael Stening (Second Defendant)
Representation: Counsel:
J Morris SC with P D'Arcy-King (Plaintiff)
J Downing (First and Second Defendants) | 5 |
nsw_caselaw:178fd5962177b5b782d5c74c:6 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Solicitors:
Gordon Legal (Plaintiff)
HWL Ebsworth (First and Second Defendants)
File Number(s): 2015/153227
Publication restriction: Nil | 6 |
nsw_caselaw:178fd5962177b5b782d5c74c:7 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Judgment | 7 |
nsw_caselaw:178fd5962177b5b782d5c74c:8 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 1. HIS HONOUR: Hailee Williams was born in March 1994. By June 2009, when she was 15, Ms Williams had developed pain in her left hip. She consulted her general practitioner about this who referred her in November that year to Dr Michael Stening. Dr Stening reported on 21 November 2009 that Ms Williams suffered from “iliac apophysitis left anterior superior iliac spine”. Between June 2010 and May 2012, Ms Williams continued to experience, and to complain to her general practitioner of, pain in her hip and lumbo-sacral region. She was referred to Dr John Fraser for a pelvis and hip X-ray and an ultrasound of both hips. In his reports upon the X-ray dated 24 May 2012 and the ultrasound dated 31 May 2012, Dr Fraser indicated that there was no, or no significant, evidence of abnormality. Dr Fraser’s reports were provided to Dr Stening when he examined Ms Williams again on 20 June 2012. On that day, Dr Stening reported to the general practitioner that Ms Williams had tenderness over her anterior superior iliac | 8 |
nsw_caselaw:178fd5962177b5b782d5c74c:9 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | spine with discomfort on hyperextension of the hip. He expressed the view that Ms Williams had developed a reccurrence of her iliac apophysitis and recommended cortisone injections, three weeks of rest and abstinence from sports. Ms Williams was given an injection by Dr Stening shortly thereafter. | 9 |
nsw_caselaw:178fd5962177b5b782d5c74c:10 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 2. Ms Williams alleges in these proceedings that her condition was not thereafter clinically managed appropriately or indeed at all. After 20 June 2012, Ms Williams’ condition became progressively worse. She alleges that Dr Fraser had been given a history of lower lumbar pain in addition to hip pain but failed to inform her general practitioner about this. Despite his original response to the second further amended statement of claim, Dr Fraser has now admitted that he breached his duty of care to Ms Williams in that he failed to report the existence of her pars defect in the X-ray report on 24 May 2012. Ms Williams alleges further that Dr Fraser should have reported upon her complaints of back pain which would have alerted Dr Stening. Ms Williams maintains that if Dr Stening had been aware of the existence of her pars defect, in combination with her complaints of pre-existing back pain, she would have been treated conservatively, or in a way that would have avoided a deterioration of her condition and what | 10 |
nsw_caselaw:178fd5962177b5b782d5c74c:11 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | became the need for later surgery. In short, Ms Williams alleges that Dr Stening’s reliance upon Dr Fraser’s deficient X-ray report meant that she was in a vulnerable position with undiagnosed spondylosis or spondylolisthesis that exposed her to a risk of harm if left untreated. She contends that Dr Stening negligently failed in such circumstances to arrange for or to offer her appropriate conservative, non-operative clinical management and that the operation to which she ultimately came would and should have been entirely avoided. | 11 |
nsw_caselaw:178fd5962177b5b782d5c74c:12 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 3. More particularly, Ms Williams’ case is that if non-operative management had been instituted, she would on the balance of probabilities never have proceeded to surgery and would accordingly never have been exposed to the risk of a severe, disabling and intractable neuropathic pain condition from which she now suffers as a consequence. Ms Williams maintains that had her pars defect been identified and reported by Dr Fraser, her condition would have been investigated further and she would have been sent for specialist physiotherapy and to a paediatric spinal specialist. Ms Williams alleges that she would have been advised to cease work immediately or at least any work that required bending, lifting or twisting and would have been given time for her ligaments to mature and tighten. She would have been told to strengthen her core muscles. Ms Williams says that she would in these ways have avoided doing any further damage through inappropriate work or engaging in what to her were potentially dangerous work | 12 |
nsw_caselaw:178fd5962177b5b782d5c74c:13 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | practices. It is Ms Williams’ case that she would have been diverted from surgery and would not have suffered her current pain condition. | 13 |
nsw_caselaw:178fd5962177b5b782d5c74c:14 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 4. There is a secondary issue with respect to Dr Fraser. Ms Williams maintains that he was given a history by the general practitioner that she was suffering from bilateral hip pain as well as from lower back pain. There remains a debate about the state of his reports in that he did not set out the presenting clinical condition upon which he was commenting. In other words, in terms of the X-ray report, he did not include any history at all and in terms of the ultrasound report he only included bilateral hip pain but did not include lower back pain. | 14 |
nsw_caselaw:178fd5962177b5b782d5c74c:15 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 5. The claim against Dr Stening largely relates to his history taking, examination, diagnoses and clinical management on two primary occasions, 20 June 2012 and 3 December 2012. Ms Williams attended each of those consultations with her mother, but there is a dispute as to whether Ms Williams or her mother ever made a complaint of back pain to Dr Stening. Ms Williams and her mother say that they did: Dr Stening denies it and in so doing relies substantially on his letter recording the consultation sent to the general practitioner. Dr Stening says that if he had been given a report of back pain, he would have instituted the non-operative treatment program described earlier. The essence of Ms Williams’ claim is that Dr Stening’s failure to heed her complaints of back pain or to take a proper history affected his diagnostic assessment and the instigation of appropriate restrictions and conservative non-operative management. In the events that occurred, Ms Williams underwent a lumbo-sacral spinal fusion in June | 15 |
nsw_caselaw:178fd5962177b5b782d5c74c:16 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 2013. Her post-operative pain syndrome dates from then. | 16 |
nsw_caselaw:178fd5962177b5b782d5c74c:17 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 6. This case is far more complicated than that summary suggests, and to the extent that it attempts efficiently to encapsulate the essence of Ms Williams’ contentions, it is potentially misleading. As the parties have acknowledged, there are significant and contentious factual disputes touching the questions of the defendants’ alleged breaches of duty and whether any breach that is admitted or proved is causally related to damage that may have been sustained, that require resolution before Ms Williams’ allegations and the associated respective liabilities of Dr Fraser and Dr Stening can be understood and determined. It is to those factual matters that attention must be directed.
7. In that setting, it is instructive to record in general terms the historical framework or summary which Hailee Williams maintains informs the allegations of breach of duty which she asserts in these proceedings. As will later emerge, this history is not completely uncontentious. | 17 |
nsw_caselaw:178fd5962177b5b782d5c74c:18 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Hailee Williams’ historical summary
8. Hailee Williams was born with congenital or dysplastic spondylolysis (pars defect). She was regularly involved in sport during her schooling and teen years including dancing and gymnastics. Later, she started running regularly and did kickboxing. Her medical history includes asthma and she suffered recurrent urinary tract infections. She had an episode of pyelonephritis. She also underwent a tonsillectomy.
9. In November 2009, Hailee Williams started experiencing left hip pain for which her general practitioner Dr Amin Mutasim referred her for pelvic X-rays. She was referred to Dr Michael Stening, an orthopaedic surgeon. He saw her first on 21 December 2009 and diagnosed a left anterior superior iliac spine apophysitis. He noted a six-month history of symptoms and advised conservative management. | 18 |
nsw_caselaw:178fd5962177b5b782d5c74c:19 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 10. Ms Williams first reported right-sided lower back pain to her general practitioner in November 2011. About that time, she took a job in a Chinese restaurant as a waitress, which involved clearing tables, taking orders and carrying plates. She did not have any difficulties with these tasks. During this time, she would also attend a gymnasium several times per week and engaged in kickboxing style exercise. She was not involved in the combat style of this sport.
11. In about March 2012, Ms Williams commenced work in a childcare centre. Initially, she did not find this work difficult, but after one month or so she developed pain in the left hip area. At the time she was 18 years old. Her work in childcare required repetitive lifting from the ground to waist level. There was also a lot of twisting of her lower back.
12. Between December 2011 and May 2012, Ms Williams reported episodic neck, back and right hip pain according to the clinical records of Hawkesbury Family Practice. | 19 |
nsw_caselaw:178fd5962177b5b782d5c74c:20 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 13. On 21 May 2012, she attended the Richmond Market Place Medical Centre and reported bilateral hip pain and tenderness over the left anterior superior iliac spine and L4/5 region. Her general practitioner referred her for X-rays of the right hip, left hip and pelvis, an ultrasound of both hips and sent her for an orthopaedic review.
14. The referral notes for X-ray mentioned lumbar spine discomfort. However, there was no formal request for an X-ray of the lumbar spine.
15. On 24 May 2012, X-rays of the hip and pelvis were undertaken, and a report prepared by Dr John Fraser, radiologist. Dr Fraser reported in summary that the hip joints were normal and that there was no evidence of arthropathy or other bony abnormalities. The ultrasound of the hip undertaken at Castlereagh Imaging on 31 May 2012 was reported as normal, again by Dr Fraser. In the report of the X-ray, there was no disclosure of a pars defect. | 20 |
nsw_caselaw:178fd5962177b5b782d5c74c:21 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 16. Ms Williams attended Dr Stening on 20 June 2012. She brought X-rays of her hips and pelvis to that appointment. Dr Stening did not identify a pars defect on the X-rays or the films. On that occasion, Dr Stening recorded the history of recurrent pain around the anterior aspect of both hips and tenderness over the anterior superior iliac spine. Dr Stening made a diagnosis of left and right ASIS apophysitis. He ordered conservative cortisone treatment as well as rest. Despite that, the symptoms continued. Dr Stening gave Ms Williams a medical certificate restricting her from lifting while squatting for three months. He advised her that she should not do any contact sport and that the symptoms would resolve as her growth plates developed. | 21 |
nsw_caselaw:178fd5962177b5b782d5c74c:22 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 17. In early December 2012, Ms Williams reattended Dr Stening as her pain had not resolved. She stated that at the time she was suffering from back and hip pain. Dr Stening ordered an MRI and ultrasound of her left hip. According to his notes, he did not order any examination of the spine because he was not given any history of the back pain.
18. The MRI and ultrasound of the left hip were reported as normal. Treatment continued to be conservative and Dr Stening referred Ms Williams to a physiotherapist (O’Neil Physiotherapy). The referral letter from Dr Stening stated ‘Bilateral ASIS tendonitis for strengthening programs’. There was no reference to back pain in the referral.
19. On 10 January 2013, Ms Williams attended the O’Neil Physiotherapy Practice and saw Mr Craig Seabury, physiotherapist. He recorded history of worsening bilateral hip pain for more than one year. He also noted lumbar discomfort. | 22 |
nsw_caselaw:178fd5962177b5b782d5c74c:23 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 20. Physiotherapy continued without any success. Mr Seabury reported back to Dr Stening on one occasion in a letter erroneously dated 28 June 2013.
21. Hailee Williams was prescribed some home exercises. During this period of performing exercises, her problems became worse and she was struggling at work. Sometime around February 2013, she found it difficult to climb stairs. Physiotherapy continued until approximately 20 May 2013.
22. On 3 May 2013, Ms Williams was seen by an osteopath, Dr Thomas Samels. She was reviewed three times by him, and he recorded findings of low back pain and hip pain. Sometime in May 2013, Ms Williams started experiencing urinary incontinence. | 23 |
nsw_caselaw:178fd5962177b5b782d5c74c:24 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 23. On 5 June 2013, Dr Samels ordered a lumbar spine X-ray. In June 2013, Hailee Williams consulted her general practitioner seeking a referral to Associate Professor William Walter, an orthopaedic surgeon, for a second opinion. On 11 June 2013, she had an X-ray of her lumbar spine which demonstrated a 1.7cm anterior slip of L5 on S1 due to bilateral pars defects amounting to a grade II spondylolisthesis. The next day Ms Williams saw Dr Walter. He recorded a history of 18 months of pain which was initially a stabbing pain in the groin, but which had moved to the lower back and buttocks bilaterally.
24. Dr Walter reported that Hailee Williams was suffering from paraesthesia on the dorsum of the right foot, along with urinary incontinence with urgency. He performed a neurological examination and reviewed some of her prior radiology, nothing that an X-ray of her lumbar spine showed 50% spondylolisthesis at L5 on S1. He then referred Ms Williams to Dr Andrew Cree, orthopaedic surgeon, for urgent review. | 24 |
nsw_caselaw:178fd5962177b5b782d5c74c:25 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 25. On 12 June 2013, she was admitted urgently to the Mater Hospital.
26. On 13 June 2013, Hailee Williams underwent a further MRI scan of her lumbosacral spine which was reported with Grade III spondylolisthesis and severe L5 foraminal compression. She was seen on 13 June 2013 by Dr Cree who recorded bilateral L5 radiculopathy and partial cauda equina syndrome. Dr Cree was concerned about urinary incontinence worsening over the previous three months. In neurological examinations, he found a minimal weakness of extensor hallucis longus bilaterally, although the rest of the examination was normal. Dr Cree also noted some slight hypo-anaesthesia about the dorsum of the right foot and that the straight leg raise test was positive bilaterally. | 25 |
nsw_caselaw:178fd5962177b5b782d5c74c:26 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 27. On 13 June 2013, Ms Williams underwent an L5/S1 spinal decompression and fusion. On 14 July 2013, Dr Cree considered that Ms Williams was developing secondary pain syndrome and referred her to a pain management specialist. On 27 November 2017, Ms Williams was reviewed by Dr Cree who noted that she continued to have ongoing discomfort in her lower back with pain intensity ranging from 6/10 to 10/10 and that she had syncopal episodes as a result of severe pain. He also noted her to have pain in both legs, the left being worse than the right. Dr Cree suggested that enlargement of lumbar foraminal dimensions may alleviate her legs symptoms.
28. On 19 February 2018, Ms Williams was reviewed by Dr Cree and he suggested a further surgical decompression to enlarge the narrowed foramina at L5/S1 for that purpose. | 26 |
nsw_caselaw:178fd5962177b5b782d5c74c:27 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 29. On 13 March 2018, Hailee Williams was admitted to Westmead Private Hospital and underwent removal of lumbar L5 instrumentation and resection of the inferior pedicle walls to create more room for L5 nerve roots. However, she continued to experience low back and bilateral leg pain. | 27 |
nsw_caselaw:178fd5962177b5b782d5c74c:28 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Breach of duty
30. In this context it therefore becomes necessary first to examine and determine the issue of precisely what complaints Hailee Williams made to her medical practitioners and when. | 28 |
nsw_caselaw:178fd5962177b5b782d5c74c:29 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Hailee Williams
31. Ms Williams gave evidence in the form of statements dated 1 August 2019 and 19 May 2020, upon which she was extensively cross-examined. Ms Williams acknowledged that she recalled some things very clearly but that she had only a vague recollection of others. For the purpose of making her statements, Ms Williams had been shown the clinical records of hospitals in which she had been treated in order to refresh her memory about the dates and times of various consultations with doctors. Ms Williams stated in terms that her statement is based on her memory of what happened at each of her appointments or admissions or presentations to hospital but that there are many matters that she cannot now recall. | 29 |
nsw_caselaw:178fd5962177b5b782d5c74c:30 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 32. Ms Williams recalled her first appointment with Dr Stening on 20 June 2012. She was at that time taking daily Voltaren and Panadol for her back and hip pain. Her mother attended the consultation and she communicated with Dr Stening unless he spoke directly to Ms Williams. Her statement contained the following paragraphs: | 30 |
nsw_caselaw:178fd5962177b5b782d5c74c:31 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | “87. I have a picture in my mind of handing Dr Stening a large envelope from the radiologist. He took the envelope over to a light box. I recall him opening the envelope and taking out a sheet of paper. The large envelope had X-ray films in it and a sheet of paper which I believe was the X-ray report. I recall him looking at the sheet of paper and placing it back in the envelope and then returning to his desk. To the best of my recollection now, he did not look at the films on the light box. I have no picture in my head of Dr Stening taking any of the X-ray films out and looking at them on the light box on that appointment. He handed the envelope back to either me or my mother. I recall Dr Stening writing on a sheet of paper on his desk.
88. I do not recall whether I informed Dr Stening I was working as a childcare worker at that consultation or at subsequent consultations. I may have filled out this information on a form, or my mother may have told him. | 31 |
nsw_caselaw:178fd5962177b5b782d5c74c:32 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 89. I now know from reading his reports that Dr Stening was aware of my work, although I do not now recall how that information was conveyed to Dr Stening.
90. I do not precisely recall the words I used to describe my pain because I recall at that stage I had a lot of trouble trying to work out how to verbally describe the pain and where it was on my body, but I recall standing up from my chair and telling and showing him, using my hands, that it hurt in my hips (indicating a point inside the points of the hip) and then turning around and placing each hand either side of my spine across my lower back. I have been asked to recreate the demonstration I performed for Dr Stening and I attach two photographs of the hand movements I used on the day. These photographs are marked ‘A’ and are to be found at pages 53 to 54 of this statement. | 32 |
nsw_caselaw:178fd5962177b5b782d5c74c:33 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 91. To the best of my recollection, I recall he asked me to get up on an examination table and sit on the edge of it. I recall laying [sic, lying] down on my back and he was raising both legs up and down while they were straight. I do recall being able to have my legs raised and lowered without any discomfort. I cannot recall experiencing any pain during that procedure. I cannot now recall if there were any other specific assessments conducted on the examination table.
92. I do not have any picture in my mind of lying on my front and I do not recall Dr Stening visually examining my back. I do not have any recollection of Dr Stening asking me to perform heel to toe walk or to remove my shoes or clothes. I do not have any recollection of Dr Stening asking me to adjust my clothing so that he could examine me. At that time I was still body conscious and I was not used to people looking at my body or touching me. To the best of my recollection he did not do so. | 33 |
nsw_caselaw:178fd5962177b5b782d5c74c:34 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 93. I recall being told by Dr Stening words to the following ‘You are experiencing pain due to growth plates and that the pain should resolve over time. You will grow out of it and there is nothing else you can do. It is very common and nothing to worry about.’
94. I recall my mother discussing my treatment with Dr Stening. I do not recall the precise discussion however I recall there was mention ‘You could try a cortisone injection that may relieve the pain, but there is no guarantee it will be effective.’
95. I do not precisely recall when, perhaps a couple days later, my mother took me back to the rooms of Dr Stening for a cortisone injection for my pain. My mother was present throughout that consultation. He gave me a cortisone injection into my left hip. | 34 |
nsw_caselaw:178fd5962177b5b782d5c74c:35 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 96. On this occasion, I observed Dr Stening going into open room on the side of his office where there was another examination bed with a curtain. Upon his return I was instructed to lay [sic, lie] on the examination table and I was asked to adjust my clothing by pulling my top up and my pants down to about my crotch so that my undies were showing. Once I was settled, he gave me an injection into my left hip on the front of my body. I did not get any injection on the right-hand side and I did not get any injection my back.
97. I recall again hearing a discussion between my mother and Dr Stening regarding the injections and possible follow up reviews. I have no specific recollection of exactly what was said but I recall we were told: ‘It will take a few weeks to know if you will get a lot of benefit from the injection. It is not guaranteed to stop your pain and you will have to take it easy at work and home and you should not play sport for a few weeks’.” | 35 |
nsw_caselaw:178fd5962177b5b782d5c74c:36 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 33. Ms Williams later described her second consultation with Dr Stening later that year as follows:
“116. I do not precisely recall when, but I recall my mother taking me back to the rooms of Dr Stening in late 2012. My mother was present throughout the consultation and I heard her discussing my condition with Dr Stening, although I do not recall all of the details of what was said.
117. To my recollection, I barely spoke during that consultation and I let my mother speak on my behalf. I do recall, however, telling Dr Stening words to the effect of, ‘My pain has not gone away, it’s in the same places as before and it’s much worse.’ | 36 |
nsw_caselaw:178fd5962177b5b782d5c74c:37 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 118. To the best of my recollection, at the time I saw Dr Stening on this occasion, I did not have any numbness or any weakness or cramping in either leg. I did not have any urinary difficulties. These things came on in 2013. If I had been asked about numbness or weakness in my legs, I would have told Dr Stening I did not have these symptoms at this stage. I was still flexible.
119. To the best of my recollection, I was not asked any questions by Dr Stening about any pain I felt in my back. I may have demonstrated to him where the pain was using my hands.
120. I specifically recall remaining seated next to my mother in front of Dr Stening’s desk throughout that consultation. I do not have any picture in my head of being asked to sit on the examination table. I do not recall Dr Stening looking at my back or touching my back. | 37 |
nsw_caselaw:178fd5962177b5b782d5c74c:38 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 121. I do not have an image in my mind of lying face down or face up on a bed at Dr Stening’s rooms in December 2012. I do not have any memory of getting undressed at Dr Stening’s rooms. I was not used to getting undressed in front of strangers and I was still very body conscious at that stage. I think if he had asked me to undress or adjust my clothes, I think I would have remembered this.
122. I vaguely recall Dr Stening saying words to the following effect:
(a) One solution is to try another cortisone injection. However, I doubt it will do any good as the last one did not have any lasting effect; and
(b) What is going on is a problem with the growth plates in your hip. It is a reasonably common condition and you will grow out of it as your body matures; and
(c) I will refer you for an MRI to make sure there is nothing else wrong.” | 38 |
nsw_caselaw:178fd5962177b5b782d5c74c:39 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 34. Ms Williams said that she was never given advice by any doctor or physiotherapist from June 2012 to June 2013 that she had spondylosis or spondylolisthesis. Ms Williams did not refer in her statements to her original consultation with Dr Stening on 21 November 2009. | 39 |
nsw_caselaw:178fd5962177b5b782d5c74c:40 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Cross-examination of Hailee Williams
35. Hailee Williams agreed, somewhat uncontroversially, that she did not have a perfect recollection of what was said or done at consultations back in 2011 and 2012. She agreed that in the period leading up to her surgery on 13 June 2013 that where there was an issue with her back at the time that was concerning her, she would have reported it to medical practitioners. She did not agree that in the period from March until June 2012 her hip pain was the more constant and serious problem for her or that back pain was only an occasional problem. She said, “I thought it was a constant problem”. However, Ms Williams went on to say this:
“A. During the time from March, I do know that my left hip pain was worse, was a lot worse and very constant; and then when my right hip and back started to hurt, they were not as bad as my hip pain - as my left hip from March/April. And I'd say, yeah, that that's my answer. | 40 |
nsw_caselaw:178fd5962177b5b782d5c74c:41 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Q. So, just dealing with that answer. So, in the period March to June 2012, left hip pain was worse?
A. Yes.
Q. And it was constant?
A. Yes.
Q. Do you say that during that period you also had right hip pain?
A. Towards more towards the middle of the year, yes.
Q. So, closer to around June 2012?
A. Yes.
Q. When do you say the back pain began?
A. My left hip started in June or the one before June; in the end of May.”
36. After she started at Kindalin, Ms Williams said that her back pain was not intermittent but constant and “showed up constantly after activity”. She said “it wasn’t constant but would be flared up with my work”. Certain activities caused it to be worse. Ms Williams said this about what she told Dr Mutasim:
“Q. I understand that and I don't in any way challenge you on that. But what I'm asking about is what you told Dr Mutasim on 21 May 2012. Can you recall the detail of that now or now? | 41 |
nsw_caselaw:178fd5962177b5b782d5c74c:42 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | A. I believe I said this before, when I said I was having pain from work; it was making it worse; and my hips and back were bothering me. But I do not recall the exact words that I used, or I don't think I can give you much more on that appointment.”
37. She was then asked about her meeting with Dr Stening:
“Q. What I’m suggesting is that you did not, neither you nor your mother said anything about back pain when Dr Stening asked that initial question and one of you, either you or your mother volunteered information about what your problem was?
A. No.
Q. You disagree?
A. Yes, I disagree.”
38. Her evidence continued:
“Q. I’m just asking now specifically about the back so I don’t need the full account of everything but what’s your best recollection, first of all, whether it was you or your mother, you say it was your mother speaking?
A. Yes, I have said that mum was speaking. | 42 |
nsw_caselaw:178fd5962177b5b782d5c74c:43 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Q. And what do you recall her saying to Dr Stening at the beginning of this consultation about your back?
A. About the pain I was having in my hips and my back from working, she explained all of that.
Q. Try and use the words, rather than summarising that she explained all of that about the pain in your hips and back?
A. I do not know the words that she used.
Q. It’s possible, isn’t it, that what she described at the time, was that in your last six months that you’d begun working as a childcare worker you’d developed recurrent pain around both hips and it was worse on the left than the right and nothing more than that?
A. No.”
39. Hailee Williams agreed that on 20 June 2012 Dr Stening said something to the effect of getting up and down from a squatting position and lifting kids was likely to aggravate her problem and that for the time being she should try to avoid those activities. Her evidence continued: | 43 |
nsw_caselaw:178fd5962177b5b782d5c74c:44 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | “Q. What you said yesterday was that your pain was there from early 2012 but it got worse in March 2012 when you went to full time hours at Kindalin, do you recall telling us that?
A. Yes.
Q. And that you said in about May 2012 you had right hip pain and back pain starting, do you recall saying that?
A. Yes.
Q. Thinking about the second half of 2012 from about July to the end of the year, do you say that by then your back pain was constant?
A. Yes.
Q. Do you say that it had become much worse?
A. Yes.
Q. Do you say it was interfering with your activities, that is, in daily life and at work regularly?
A. Yes, it was.
Q. You indicated yesterday that your back pain, in the early part of 2012, was not constant, that is, it was worse with some activity but then was not so bad, do you recall giving that evidence?
A. Yes.
Q. So that do you say in the second half of 2012, that changed?
A. Yes.” | 44 |
nsw_caselaw:178fd5962177b5b782d5c74c:45 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 40. On 2 July 2012, Dr Stening gave Ms Williams a medical certificate placing restrictions upon her duties at work for three months. By October 2012, it had expired. However, by then her back pain was much worse, much more severe and much more constant. It became worse and worse in the second half of 2012.
41. Ms Williams saw Dr Stening for the second time on 3 December 2012. She said that she told Dr Stening that her bilateral hip pain and her back pain had got worse and was now constant and severe. She disagreed with the suggestion that neither she nor her mother said anything at all about back pain. She agreed that Dr Stening said words to the effect of “while I'm hoping you will grow out of your pain and it's due to apophysitis, I recommend you have an MRI scan of the left hip to see if there's something else going on to cause the pain”. | 45 |
nsw_caselaw:178fd5962177b5b782d5c74c:46 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Meigan Williams
42. Meigan Williams is Hailee Williams’ mother. She gave evidence in the form of a statement dated 2 August 2019. Meigan Williams indicated that she had been shown the clinical records of the medical practitioners she has attended with her daughter about her hip and back pain and the clinical records of hospitals in which she has been treated in order to refresh her memory about dates and times of various relevant consultations. | 46 |
nsw_caselaw:178fd5962177b5b782d5c74c:47 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 43. Meigan Williams said that Hailee Williams started complaining of hip pain in 2009. She recalled taking her daughter to a general practitioner and being given a referral to Dr Stening. Meigan Williams said that she recalled Dr Stening “making a diagnosis” but does not remember what it was. She recalled that Dr Stening did not offer any treatments. Meigan Williams recalled that Hailee Williams complained to her of lower back ache towards the end of 2011 following her discharge from hospital for an unrelated condition. Sometime later she consulted Dr Mutasim who referred Hailee to Dr Stening for tenderness over her hip and the lumbar L4-5 region.
44. Hailee Williams was X-rayed at the Castlereagh Imaging at Penrith on 24 May 2012. They both attended Dr Stening’s rooms on 20 June 2012 and took the X-ray with them. Meigan Williams said this:
“68. Upon entering his rooms, I proceeded to describe why Hailee and I were there. | 47 |
nsw_caselaw:178fd5962177b5b782d5c74c:48 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 69. I did most of the talking. There was a conversation to the following effect:
‘Dr Stening: What seems to be the trouble?
Me: Hailee has had niggling hip and back pains off and on for a couple of years. You saw her a while back and said it was growth plates. I had her at a podiatrist and she wears orthotics. But she has started working in childcare and she was okay for a month or so but now her back and hip is getting worse.
Dr Stening: What seems to cause it?
Hailee: I get more hip pain and back discomfort when lifting the children and buckets of water. It gets worse when lifting a lot.
Dr Stening: Where is the pain?’
70. I think he asked me about her job in childcare. I do not recall much about this topic. | 48 |
nsw_caselaw:178fd5962177b5b782d5c74c:49 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 71. I vaguely recall him saying something like ‘lifting the children wouldn’t be helping’. It is my recollection today that at no time during that consultation did Dr Stening physically examine Hailee. I have no image in my head of him doing so.
72. I recall observing Hailee standing up from a sitting position in front of his desk and turning slightly towards me as I was sitting in the chair to her left. I remember her placing her hands from her navel, around the right-hand side (as I looked at her) and back behind her towards her lumbar spine and saying, ‘it hurts here and here’. To my recollection now, Dr Stening did not come around from his desk to see where Hailee was pointing. He did walk around behind her to get to the light board. | 49 |
nsw_caselaw:178fd5962177b5b782d5c74c:50 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 73. I handed Dr Stening the envelope containing Hailee’s 24 May 2012 X-rays. I recall he put them onto the light box which was hanging on a wall. I recall him looking at each X-ray for a short time and moving on to the next one. I recall him pointing to one X-ray with his finger and saying something like, ‘She is having trouble here in the growth plate’. At this time, he was point at something on the right-hand side of the picture on the light box. He then pointed to something on the left-hand side of the picture on the light box and said, ‘If you compare both sides you can see where the difficulty is’. I could not work out the significance of what he was point at and I was sitting some distance away, but I took his word for it.
74. I do not have a recollection of seeing him reading an X-ray report, but he may have.
75. He also said: | 50 |
nsw_caselaw:178fd5962177b5b782d5c74c:51 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | ‘Dr Stening: This is a very common thing for girls (or children – I cannot now recall which word he used) of Hailee’s age and it should right itself. It might take six months or so.
Meigan: What else can be done? Hailee’s in a lot of pain. Is there anything that can be done?
Dr Stening: We could try giving her a cortisone injection into her hip. This is a steroid and it can be effective in many cases, but we cannot guarantee that it will work.’
76. I recall asking Dr Stening many questions about this condition, the level of pain she was experiencing and the impact on her and what can be done. Dr Stening said ‘it should right itself and would take time, perhaps up to six months.
45. About a week later, Hailee Williams and her mother returned to Dr Stening for the cortisone injection into Hailee’s “front left hip”. They were told by Dr Stening to come back in six months if the pain persists. | 51 |
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