_id
stringlengths 38
41
| version_id
stringlengths 36
36
| type
stringclasses 1
value | jurisdiction
stringclasses 1
value | source
stringclasses 1
value | mime
stringclasses 2
values | date
stringlengths 19
19
| citation
stringlengths 21
1.02k
| url
stringlengths 61
64
| when_scraped
stringlengths 32
32
| text
stringlengths 1
1.02k
| chunk_index
int64 0
3.72k
|
|---|---|---|---|---|---|---|---|---|---|---|---|
nsw_caselaw:178fd5962177b5b782d5c74c:152 | 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 | The statement of claim
90. It is instructive at this point to consider in some detail the way in which Hailee Williams frames her case against each defendant. As will already be apparent, the essential background to her claims is that Dr Mutasim found her to be “tender over the (L) ASIS and L4-5” and that he gave her a referral to undergo a pelvis and hip X-ray and an ultrasound of both hips. Dr Fraser was provided with a history of lower lumbar pain by Dr Mutasim in his letter of referral for X-rays. The amended statement of claim then contains the following allegations:
1. Dr Fraser knew that young men and women with lower lumbar pain in the age group from late teens to early twenties can be cause by spondylosis and spondylolisthesis and that such conditions can be treated conservatively so that permanent damage is avoided.
2. Dr Fraser did not provide the history of lower lumbar pain provided to him by Dr Mutasim in the 24 May 2012 X-ray report or in the 31 May 2012 ultrasound report. | 152 |
nsw_caselaw:178fd5962177b5b782d5c74c:153 | 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. Dr Fraser knew or ought to have known that the history of lower lumbar pain in addition to hip pain in a 17-year old girl may be important clinical information to any doctor or specialist reading the X-ray report or the ultrasound report.
4. Had that history been provided, on the balance of probabilities Dr Stening would have ordered further studies and may, or would on the balance of probabilities, have identified the pars defect, spondylitis and spondylolisthesis.
5. Dr Stening would in those circumstances probably have advised Hailee Williams to give up any exercise or work that involved shock to the spine, bending or repeated heavy lifting or twisting and to give up her work at a childcare centre. | 153 |
nsw_caselaw:178fd5962177b5b782d5c74c:154 | 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. Hailee Williams alleges against Dr Stening that he owed her a duty of care on 20 June 2012 and thereafter to exercise reasonable skill and care in reviewing and interpreting her pelvis and hip radiological images, to investigate her right sided pars defect, spondylolytic defects and progressive spondylolisthesis and to investigate her lumbar spinal pain. Dr Stening admits that he owed a duty to exercise reasonable care and skill in managing, advising and treating her but does not otherwise admit the allegation.
92. Dr Stening denies that he was negligent in any way at all. That denial necessarily includes a denial of each and every allegation of negligence pleaded against him at paragraph 97 of the second further amended statement of claim as follows:
1. Failed to review and/or interpret properly or at all, the plaintiff’s pelvic and bilateral hip x-rays of 24 May 2012; | 154 |
nsw_caselaw:178fd5962177b5b782d5c74c:155 | 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. Failed to identify, properly or at all, the presence of an “inverted Napoleon hat” sign on the plaintiff’s pelvic and bilateral hip x-rays dated 24 May 2012 on or about 20 June 2012;
3. Failed to comment on and/or record, properly or at all, the presence of an “inverted Napoleon hat” sign on the plaintiff’s pelvic and bilateral hip x-rays dated 24 May 2012 on or about 20 June 2012;
4. Failed to identify, properly or at all, the presence of the “Scotty dog collar” sign on the plaintiff’s pelvic and bilateral hip x-rays dated 24 May 2012 on or about 20 June 2012;
5. Failed to comment on and/or record, properly or at all, the presence of an “Scotty dog collar” sign on the plaintiff’s pelvic and bilateral hip x-rays dated 24 May 2012 on or about 20 June 2012;
6. Failed to take and/or record, properly or at all, a detailed medical history that included a recent history of lower back ache and/or back pain on or about 20 June 2012; | 155 |
nsw_caselaw:178fd5962177b5b782d5c74c:156 | 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 | 7. Failed to investigate and/or treat, properly or at all, the plaintiff’s lower back ache and/or back pain on or about 20 June 2012;
8. Failed to advise the plaintiff, properly or at all, that she had an abnormal radiological image of a possible unstable spondylolysis on or about 20 June 2012;
9. Failed to advise the plaintiff of the signs and/or symptoms of unstable spondylolysis and/or progressive spondylolisthesis on or about 20 June 2012;
10. Failed to advise the plaintiff to seek medical attention if she developed signs and/or symptoms of unstable spondylolysis and/or progressive spondylolisthesis on or about 20 June 2012;
11. Failing to perform an appropriate examination of the plaintiff on 20 June 2012;
12. Failed to take and/or record, properly or at all, a detailed medical history that included a recent history of lower back ache and/or back pain on or about 18 December 2012; | 156 |
nsw_caselaw:178fd5962177b5b782d5c74c:157 | 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. Failing to perform an appropriate examination of the plaintiff on 18 December 2012;
14. Failed to investigate and/or treat, properly or at all, the plaintiff’s lower back ache and/or back pain on or about 18 December 2012;
15. Failed to order, properly or at all, a lumbo-sacral junction radiological imaging on or before 10 January 2013;
16. Failed to notify, properly or at all, the plaintiff’s treating medical and/or paramedical practitioners of the plaintiff’s right sided pars defect on or before 10 January 2013;
17. Failed to notify, properly or at all, the plaintiff’s treating medical and/or paramedical practitioners that the plaintiff’s abnormal radiological image of spondylolysis may be indicative of instability on or before 10 January 2013; | 157 |
nsw_caselaw:178fd5962177b5b782d5c74c:158 | 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 | 18. Failed to notify, properly or at all, the plaintiff’s treating medical and/or paramedical practitioners that the plaintiff’s abnormal radiological image of spondylolysis may be indicative of a right sided pars defect on or before 10 January 2013;
19. Failed to advise the plaintiff, properly or at all, that she had an abnormal radiological image of a possible unstable spondylolysis;
20. Failed to advise the plaintiff of the signs and/or symptoms of unstable spondylolysis and/or progressive spondylolisthesis on or before 10 January 2013;
21. Failed to advise the plaintiff to seek medical attention if she developed sign and/or symptoms of unstable spondylolysis and/or progressive spondylolisthesis on or before 10 January 2013. | 158 |
nsw_caselaw:178fd5962177b5b782d5c74c:159 | 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. It was accepted by counsel for Dr Stening that Hailee Williams also makes, and that he must meet, an allegation that even if she said nothing to him on 20 June 2012 about her back, and even without a correct report from Dr Fraser identifying her pars defect, a complaint of hip pain to Dr Stening by her or a referral about hip pain from Dr Mutasim should have led him to examine her back. | 159 |
nsw_caselaw:178fd5962177b5b782d5c74c:160 | 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 | Plaintiff’s witnesses – truthful but unreliable? | 160 |
nsw_caselaw:178fd5962177b5b782d5c74c:161 | 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
94. There is no substantial factual dispute between Hailee Williams and Dr Fraser. However, there is a significant factual dispute between her and Dr Stening. Dr Stening does not contend that Hailee Williams is lying in recounting her version of what occurred in consultations with him. Indeed, the defendants’ joint submission was that I should accept that Hailee Williams was attempting to give evidence of her recollection of key events honestly and to the best of her ability. However, the defendants, but Dr Stening in particular, maintain that Hailee Williams’ recollection is poor and should be discounted in favour of his recollection, aided by or derived from his written recording of what occurred there. The principal area of dispute is whether Dr Stening was told by either Hailee Williams or her mother that she was experiencing back pain. | 161 |
nsw_caselaw:178fd5962177b5b782d5c74c:162 | 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 | 95. Dr Stening submitted that there were “multiple bases upon which it can be demonstrated that [Hailee Williams’] recollection is poor so that the Court ought [to] exercise caution in accepting what she now claims to recall having occurred”. Those submissions are as follows.
96. First, Hailee Williams acknowledged that the first occasion on which she tried to reduce her recollection of her attendances on Dr Stening to writing was when she prepared her 1 August 2019 statement. That was obviously many years after the “key attendances” to which it refers.
97. Secondly, while Hailee Williams “vacillated to a degree as to the quality of her recollection”, she candidly conceded that her recollection of what occurred on 20 June 2012 and 3 December 2012 was limited. For example:
“Q. Sitting there today, you don't now recall exactly what happened on each day you attended each doctor, do you?
A. No, I don't exactly recall.
…
Q. How did you lie down on it?
A. On my back. | 162 |
nsw_caselaw:178fd5962177b5b782d5c74c:163 | 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. On your?
A. Back.
Q. And at some point did you turn over and lie down on your stomach?
A. I do not recall that.
Q. What I want to suggest to you is that Dr Stening got you onto the examination bed in order to examine you and did a number of things, so can you, as I go through it, can you respond and indicate whether you agree or disagree?
A. Yes, I can.
Q. So, first of all, I want to suggest that he got you to lie on your back and he felt on your pelvis, that is, felt with his hands on the outside of each side of your pelvis, do you recall that?
A. No. I do not recall.
Q. I want to suggest, he then pushed down on your pelvis and also at the top of your hips, that is, put some pressure down, do you recall that?
A. I do not recall that.
Q. I want to suggest that he moved your hips around and moved them into different positions when you were lying on your back, do you recall that?
A. No, I do not recall that. | 163 |
nsw_caselaw:178fd5962177b5b782d5c74c:164 | 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. I want to suggest to you that he then got you to turn around and lie on your stomach, do you recall that at all or not?
A. No, I do not recall that.
Q. I’m suggesting that, on your stomach, he did a couple of things, first of all, he pulled your legs backwards, do you recall that at all?
A. I don’t know, I do not recall being on my stomach so, no, I do not recall that either.
Q. Well, if you don’t recall being on your stomach at all, what I’m suggesting is that that occurred, do you say your recollection it didn’t occur or you just don’t recall now?
A. That’s not, I don’t recall.” | 164 |
nsw_caselaw:178fd5962177b5b782d5c74c:165 | 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 | 98. Thirdly, even though Hailee Williams accepted that her recollection of the various attendances on Dr Stening had been refreshed by reviewing his records, he submitted that it was “strange” that she could no longer recall any of the relevant records she reviewed. The defendants submitted in those circumstances that “there must be a real risk that [her] actual recollection has been inadvertently contaminated with information gleaned from reviewing parts of the relevant treating records”. | 165 |
nsw_caselaw:178fd5962177b5b782d5c74c:166 | 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 | 99. Fourthly, and said to be allied to the previous point, the defendants submitted that “it is well settled that…where determination of critical issues of fact will involve an evaluation of oral evidence of disputed events, the process of fact finding should be informed as far as possible ‘on the basis of contemporary materials, objectively established facts and the apparent logic of events’”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31]. The defendants referred to what was said by Lord Pearce in Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 at 431 as follows: | 166 |
nsw_caselaw:178fd5962177b5b782d5c74c:167 | 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 | “Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes, the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”
100. Fifthly, the defendants submitted that some aspects of Hailee Williams’ recollection of what occurred on 20 June 2012 and 3 December 2012 “are patently wrong”. For example, Hailee Williams has no recollection of lying in the prone position. However, Dr Stening’s report to Dr Mutasim on 20 June 2012 explicitly refers to the fact that he performed the Ely test which can only be done in that position. | 167 |
nsw_caselaw:178fd5962177b5b782d5c74c:168 | 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 | 101. Sixthly, there is a conspicuous absence in the treating records of other health professionals of Hailee Williams reporting or complaining of back pain. The defendants’ submission was that “it is [therefore] far more likely that this reflects the fact that [Hailee Williams] is wrong as to what she was actually experiencing and complaining of at the time, as opposed to the alternative conclusion, which would be that multiple, independent, practitioners have made a consistent error in recording complaints of hip pain but not back pain”. | 168 |
nsw_caselaw:178fd5962177b5b782d5c74c:169 | 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 | 102. This proposition was supported by some examples. Hailee Williams’ evidence was that her back pain began in about May 2012, which was a couple of months after she began full-time work at Kindalin. This became more severe, more constant and more debilitating in the second half of 2012. The defendants’ submissions emphasised that while Hailee Williams gave evidence that she would have told the general practitioners she was seeing about what was troubling her, there is no reference at all to back pain in the Hawkesbury Valley Practice notes from 30 August 2012 through to 15 November 2012, although there are multiple references to hip pain.
103. The defendants also submitted that Hailee Williams did not complain of back pain to Dr Maria Jelinek who she saw on 5 and 15 November 2012, when she complained only of problems with tonsillitis, right hip pain and tremors in her hand. Even though the entries are long, none contains any reference to back pain. | 169 |
nsw_caselaw:178fd5962177b5b782d5c74c:170 | 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 | 104. Hailee Williams did complain of back pain to Dr Mutasim. On 21 May 2012, he recorded a history of pain in her hips and back that had arisen through her work. Dr Stening submitted that “the structure of his notes strongly suggests that what [she] initially reported to him…was pain in her left and right hip and [that] it was only through specific examination of [her] back that he identified some tenderness over the L4-5 region”. Dr Mutasim recorded no complaint of back pain at her consultation with him on 16 August 2012.
105. Dr Fraser and Dr Stening summarised these points with the following written submission: | 170 |
nsw_caselaw:178fd5962177b5b782d5c74c:171 | 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 | “Overall, there is a strong flavour of reconstruction in the plaintiff’s evidence. That is not in any way a criticism of her or her honesty. Indeed, it is a tendency the courts have recognised …In circumstances where the plaintiff has ended up with a poor outcome following on from her back surgery and she and her mother hold a strong belief that the spondylolisthesis should have been picked up earlier, it is entirely plausible that they may have convinced themselves of making certain complaints (and effectively being ignored) particularly when seeing Dr Stening.
The end result of the above submissions is that the defendants urge that where there is a conflict between the evidence of the plaintiff and Dr Stening as to what occurred, Dr Stening’s version of events, as supported by the contemporaneous records, should be preferred. He candidly accepted that he could not now recall the detail of the consultations and relied on the contents of his notes and his usual practice.
… | 171 |
nsw_caselaw:178fd5962177b5b782d5c74c:172 | 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 has the considerable advantage of having contemporaneous records, which most likely were dictated immediately after each appointment with the plaintiff…His evidence about his usual practice, particularly as regards complaints of back pain in teenage patients, accorded with common sense and had the ring of truth about it.” | 172 |
nsw_caselaw:178fd5962177b5b782d5c74c:173 | 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
106. The defendants made the same submissions with respect to Meigan Williams. While she was not dishonest, they submitted that her evidence was tainted by hindsight and of poor quality. The defendants referred to the following matters as examples of that.
107. Meigan Williams’ evidence was that Dr Stening did not examine her daughter on 20 June 2012. The evidence otherwise indicates that that is wrong.
108. Secondly, Meigan Williams disputed that when he injected Hailee Williams’ left hip with Celestone Chronodose, he said that he would inject the other side if Hailee got a good response from the procedure. Dr Stening submitted that it was “exceedingly likely that he would have spoken those words”, given the terms of his 22 June 2012 letter to Dr Mutasim, and that Meigan Williams “must be wrong in her recollection”. | 173 |
nsw_caselaw:178fd5962177b5b782d5c74c:174 | 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 | 109. Thirdly, Meigan Williams said that she recalled seeing Dr Daniel Frost in about November 2012 in respect of her daughter’s ongoing hip and back ache. However, the Hawkesbury Family Medical Practice records demonstrate that Hailee Williams did not see Dr Frost at all in November 2012.
110. Finally, the defendants submitted that “there were some bizarre elements to Meigan Williams’ evidence about certain matters”. For example, she said in her evidentiary statement and oral evidence that it was, in effect, her usual practice to read the various radiology referrals. Meigan Williams later changed that evidence to suggest that her usual practice was instead to read the X-ray or radiology reports. The defendants submitted that her evidence about that “made no sense” and was inconsistent. | 174 |
nsw_caselaw:178fd5962177b5b782d5c74c:175 | 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 | Plaintiff’s response – truthful and reliable
111. Hailee Williams submitted that she has not sought to set out the terms of any conversation that she could not remember. She admitted that she had no recollection of some things that must have happened in her consultations with Dr Stening. She recognised the difference between memory and reconstruction. These things “stood to her credit”.
112. Additionally, there were differences in the recollections of Hailee Williams and her mother about the same events. This indicated that there was “no real pollution of memory arising from discussions between them”.
113. Meigan Williams gave evidence that she advised Dr Stening that “Hailee has had niggling hip and back pain on and off for a couple of years”. Hailee Williams submitted that that was consistent with the pre-existing medical evidence. Meigan Williams’ description is significantly understated. Meigan Williams was cross-examined about it: | 175 |
nsw_caselaw:178fd5962177b5b782d5c74c:176 | 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. Did Hailee speak at all in terms of discussions with Dr Stening?
A. Only when she was asked to point out where the pain was.
Q. You say that Dr Stening asked her to point it out?
A. Yes.
Q. At paragraph 69 you have set out what you say you told Dr Stening after he asked, what seems to be the trouble?
A. Yes.
Q. Accepting that that’s your account there, I’m suggesting to you that when you spoke to Dr Stening on that occasion, that is 20 June 2012, you didn’t describe to him Hailee having any back pain, do you agree or disagree?
A. I disagree with that.
Q. I’m suggesting to you that neither did Hailee indicate, through pointing or standing and motioning any back pains, during that consultation do you agree or disagree?
A. Disagree.
Q. You maintain that the words you spoke were as set out in paragraph 69?
A. Yes.” | 176 |
nsw_caselaw:178fd5962177b5b782d5c74c:177 | 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 | 114. Hailee Williams emphasised that she did recall some things that her mother also remembered. Significant among those was the suggestion that Hailee Williams performed a demonstration to assist Dr Stening: she stood up and pointed to where her pain was. She gave evidence of the demonstration and was not cross-examined about it. She submitted that, even though her mother was cross-examined about it, the failure to cross-examine her on this issue was “critical to the finding of breach against Dr Stening”.
115. Hailee Williams made the following written submission in this context: | 177 |
nsw_caselaw:178fd5962177b5b782d5c74c:178 | 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 also gave evidence that Hailee demonstrated to Dr Stening where she suffered pain by standing up and using her hands to indicate pain. She was cross-examined at T183.20 and reiterated the plaintiff had demonstrated to Dr Stening where the pain was. Meigan corroborates the plaintiff’s account. More importantly, the unchallenged evidence of the plaintiff corroborates Meigan’s account. This makes it impossible for the court to find that Hailee did not demonstrate back pain to Dr Stening. As such, there was a relevant communication to him in the clearest terms.” | 178 |
nsw_caselaw:178fd5962177b5b782d5c74c:179 | 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 | 116. Hailee Williams submitted that it is “critically important with lay witnesses to challenge their account in cross-examination…as a matter of procedural fairness which gives rise to the fundamental rule of advocacy”: see Browne v Dunn (1893) 6 R 67; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11. She submitted that the High Court decision in Kuhl means that the defendants could not rely on cases like Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [42] to the effect that cross-examination may not be the only way in which to guarantee procedural fairness. Hailee Williams submitted that the obligation to cross-examine a witness on a critical topic cannot be displaced by particular practices that may have developed. Specifically, it was not enough for Dr Stening to rely upon his usual practice, to the effect that he would have recorded matters differently in his report to Dr Mutasim if Hailee Williams had demonstrated back pain as she alleges, to counter the evidence from | 179 |
nsw_caselaw:178fd5962177b5b782d5c74c:180 | 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 | her that she did so. | 180 |
nsw_caselaw:178fd5962177b5b782d5c74c:181 | 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 | 117. Usual practice evidence may be relied upon to base findings as to whether things were done or said: see Morris v Hanley (2003) 173 FLR 83; [2003] NSWSC 42 at [70]; Bergman v Haertsch [2000] NSWSC 528 at [271]; Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721. Dr Stening conceded that he could not recall the detail of his consultations with Hailee Williams and relied upon the contents of his letter to Dr Mutasim and his usual practice:
“Q. Yes. Now, I take it that really, given the number of patients you see, you have very limited, if any, recollection of this consultation.
A. Very limited recollection, yes.”
118. I have earlier recorded at that Dr Stening uncontroversially conceded that he did not have any recollection of anything other than what was outlined in his letter to Dr Mutasim. The letter did not record a complaint of back pain. | 181 |
nsw_caselaw:178fd5962177b5b782d5c74c:182 | 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 | 119. Dr Stening was cross-examined about photographs tendered by Hailee Williams that depicted the type of demonstration she said occurred at the 20 June 2012 consultation. He said that if she had pointed to her back it would have been “a red flag”. He relied on his letter to Dr Mutasim to suggest it did not happen and that such a demonstration would have led to a completely different medical assessment. | 182 |
nsw_caselaw:178fd5962177b5b782d5c74c:183 | 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 | 120. It does not seem to me that a failure specifically to cross-examine Hailee Williams about the demonstration she says she performed was a denial of procedural fairness that offended the rule in Browne v Dunn. It is clear from a comparison of their respective evidentiary statements that, well before the time that Hailee Williams and Dr Stening came to be cross-examined, there was a factual dispute about the matter. Hailee Williams appended photographs depicting the type of demonstration she said took place. Dr Stening dealt with it in his statement at some length. It could hardly be suggested that Dr Stening is now purporting to rely upon his general practice to gainsay Hailee Williams’ evidence about it where she had not already been given an appropriate opportunity to confront or to deal with Dr Stening’s evidence about it. Significantly, Dr Stening does not say from his recollection of the consultation that the demonstration did not occur. There seems to me therefore to have been little point in | 183 |
nsw_caselaw:178fd5962177b5b782d5c74c:184 | 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 | confronting Hailee Williams with a suggestion that her memory of a demonstration was flawed when the provenance of the contrary proposition merely derived from Dr Stening’s recollection which itself rose no higher than his assumptions about usual practice. | 184 |
nsw_caselaw:178fd5962177b5b782d5c74c:185 | 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. The question remains about whether Dr Stening’s usual practice evidence is decisive or even persuasive. Hailee Williams accepted that usual practice may be brought to the aid of a doctor when assessing his or her evidence but that the issue depended largely on the circumstances. However, she submitted that the proof of the existence of Dr Stening’s usual practice does not resolve the dispute favourably to him on the question of whether the demonstration took place in fact. In effect, Dr Stening’s usual practice argument was limited to what was or was not in his letter to Dr Mutasim, which is quite different to reliance upon a practice of only asking 17 year-old girls who present with a complaint of back pain to demonstrate where the pain was experienced. | 185 |
nsw_caselaw:178fd5962177b5b782d5c74c:186 | 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 | 122. Dr Stening’s argument, that because there was no reference to back pain in his letter to Dr Mutasim there could have been no reference to back pain during the 20 June 2012 consultation, is obviously circular. It does not take account of the possibility that he failed in this case to conform to his usual practice for some reason. Hailee Williams suggests that one reason may have been that Dr Stening was under time pressure and did not dictate his report immediately before seeing other patients. He may possibly have dictated the letter to Dr Mutasim having lost his notes or made an incomplete recording of what occurred at the consultation. He may have failed to record a complaint of back pain even if it had been made to him. Hailee Williams submitted that the administrative processes in Dr Stening’s surgery give rise to the possibility of note-taking error, dictation error or even transcription error. | 186 |
nsw_caselaw:178fd5962177b5b782d5c74c:187 | 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 | Disposition of the 20 June 2012 consultation dispute
123. In my opinion, a combination of factors points to the conclusion that Dr Stening was not told of back pain at or before the 20 June 2012 consultation with Hailee Williams and her mother.
124. First, neither Dr Mutasim’s request to Dr Fraser for X-rays or imaging, with whose report dated 24 May 2012 headed “PELVIS AND HIPS” Dr Stening was provided, nor Dr Mutasim’s 3 June 2012 letter of referral to Dr Stening, makes any mention of back pain despite Dr Mutasim having taken a history on 21 May 2012 that included back pain. Dr Mutasim is not a defendant. | 187 |
nsw_caselaw:178fd5962177b5b782d5c74c:188 | 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 | 125. Secondly, Dr Stening did not refer to back pain at all in his letter reporting to Dr Mutasim. That of itself is not conclusive of whether Hailee Williams or her mother referred to back pain at the 20 June 2012 consultation. Its significance lies primarily in the fact that the letter from Dr Stening reporting to Dr Mutasim directs attention to the very matters that Dr Mutasim referred to in his letter to Dr Stening.
126. Thirdly, Dr Stening recommended, and Hailee Williams underwent, a steroid injection into her anterior superior iliac spine, but did not receive treatment related to back pain. Dr Stening carried out this procedure and reported upon it to Dr Mutasim. Meigan Williams attended with her daughter on the occasion of this procedure for injection into the hip. | 188 |
nsw_caselaw:178fd5962177b5b782d5c74c:189 | 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 | 127. Fourthly, Dr Mutasim did not subsequently raise with Dr Stening after he received either his 20 June 2012 letter reporting upon the consultation, or his 22 June 2012 letter reporting upon the steroid injection, that there was no reference in either of them to back pain or, in relation to the latter, that it could not have been appropriate for the treatment of a complaint of back pain. Dr Stening’s letter after the injection made specific reference to the alleviation of symptoms, which presumably Dr Mutasim would have questioned if he had not referred a patient for treatment of hip pain. | 189 |
nsw_caselaw:178fd5962177b5b782d5c74c:190 | 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 | 128. Fifthly, Dr Stening’s recommendation for Hailee Williams to refrain from certain activities such as sports and to move from her (then) current duties involving repetitive lifting of children does not point only or even necessarily to the existence of a back problem. The recommendation was not uniquely indicative of the existence of a back pathology but was consistent with the protection of her diagnosed condition of iliac apophysitis. In any event, Dr Stening was not giving a warning with respect to the conservative management of a back condition and there is no suggestion that his warning was inadequate if it related to the management of Hailee Williams’ anterior superior iliac spine. | 190 |
nsw_caselaw:178fd5962177b5b782d5c74c:191 | 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 | 129. In my view, Hailee Williams and her mother are mistaken in their recollections that Dr Stening was told or shown anything by either of them to indicate that Hailee Williams had or was concerned about or was complaining of any pain or problem with her back. The evidence that demonstrates that Hailee Williams was seeing Dr Stening for a problem with her hip, which evidence does not rely on memory or recollection, but instead derives from contemporaneously created documents, is difficult to discount as unpersuasive: see, for example, Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 549. Moreover, the total absence of any critical response to these documents that one might have expected if they were incorrect is telling. That includes not only Dr Mutasim but also Meigan Williams whose involvement in her daughter’s care was commendably close and constant. It is improbable that she would not have picked up on the fact that the medical professionals were all talking about hips if the issue was | 191 |
nsw_caselaw:178fd5962177b5b782d5c74c:192 | 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 | pain in the low back. | 192 |
nsw_caselaw:178fd5962177b5b782d5c74c:193 | 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 | 130. Although Hailee Williams’ reliance upon the events surrounding the 3 December 2012 consultation with Dr Stening is different, the objective facts at that time similarly also in my view support the conclusion that, despite the statements and evidence of Hailee Williams and her mother about that consultation, she was still only complaining of hip and pelvic pain but not back pain. As with the documents produced in June 2012, the letter dated 3 December 2012 from Dr Stening reporting to Dr Mutasim, and the content of the MRI report from Dr Morris dated 12 December 2012, are concerned solely with her hips and not with her low back.
131. Penultimately, and significantly in my view, Dr Stening wrote to Meigan Williams directly on 18 February 2013. Appreciating that she has no medical training and that, to some extent, the letter is couched in technical language, its terms are nonetheless instructive:
“Dear Mrs Murphy, | 193 |
nsw_caselaw:178fd5962177b5b782d5c74c:194 | 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’s MRI scan of her hip was reported as normal. In particular there was no sign of inflammation around the anterior-superior iliac spine, the site of tenderness to palpation.
Consequently, it’s difficult to recommend any surgical treatment in the presence of a normal MRI.
Unfortunately, her symptoms in my opinion can only be dealt with by regular tensor fascia lata or gluteal muscle stretches which can be instructed by her treating physiotherapist.
Hopefully the medical certificate that I’ve also sent you will help in managing the planned trekking trip.” [Emphasis added]
132. Further, and also significantly, Dr Stening provided Hailee Williams with a medical certificate dated 18 February 2013 at the request of her mother, presumably in support of the cancellation of her planned trekking trip. It said this:
“Miss Murphy has been under my care for bilateral hip pain. | 194 |
nsw_caselaw:178fd5962177b5b782d5c74c:195 | 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 | Treatment to date has not satisfactorily relieved her hip pain. For this reason, she has difficulty mobilising. As further investigations are being undertaken presently, she needs to continue seeing me for ongoing treatment and as such is unable to travel. In particular, she would have significant difficulty doing vigorous activity such as a trekking holiday until her symptoms have abated.”
133. Finally, apparently on the recommendation of Dr Stening, Hailee Williams saw Mr Craig Seabury in January 2013, who wrote to Dr Stening in that month in the following relevant terms:
“Thank you for referral of Ms Hailee Murphy for physiotherapy assessment and treatment of her bilateral chronic hip pain.
Initial examination on 10 March 2013 revealed the following:
• Reported – chronic 8/10 pain to bilateral anterior hips with left worse than right
• Pain worsening after activity and prolonged stationary position i.e. sitting | 195 |
nsw_caselaw:178fd5962177b5b782d5c74c:196 | 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 | • Palpation – 9/10 VAS to ASIS bilaterally worsening when moving medially to AIIS
• Tender on palpation to bilateral psoas major.”
134. It is apparent from Mr Seabury’s own examination of Hailee Williams that she was complaining to him of bilateral hip pain but not back pain. His examination notes record that he was dealing with such complaints but not others. This is consistent with what I consider to have been the concerns and complaints to which Hailee Williams directed Dr Stening during 2012. | 196 |
nsw_caselaw:178fd5962177b5b782d5c74c:197 | 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 | 135. Should Dr Stening in any event have been alert somehow to the possibility that Hailee Williams had a back problem that he should have investigated even if I find that she did not disclose it and that Dr Mutasim’s referral did not mention it? The suggestion appears to be that a young woman of Hailee Williams’ age in June 2012 presenting with a complaint of bilateral hip pain should somehow also have been examined and investigated with a view to discovering or teasing out the existence of a lumbar or other back pathology.
136. In my opinion, this issue can be easily disposed of in the context of a consideration of the anterior question raised under s 5O of the Act of whether or not Dr Stening has established that he acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. That is because I have found that Hailee Williams only complained of pelvic and hip pain and did not also complain of lower back pain. | 197 |
nsw_caselaw:178fd5962177b5b782d5c74c:198 | 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 | 137. The orthopaedic experts in their joint report agreed that where there were no complaints of back pain made by Hailee Williams on open ended questioning, and Dr Stening properly inquired as to the duration of the pain, its precipitants and characteristics, it amounted to competent professional practice to examine her as he did on 20 June 2012 concentrating on her hips and to arrive at a diagnosis of anterior superior iliac apophysitis.
138. Question 8 of the joint report of Drs Sekel and Walker dated 9 March 2018 and its relevant answer are as follows: | 198 |
nsw_caselaw:178fd5962177b5b782d5c74c:199 | 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 | “On the assumption that Dr Stening had available to him on 20 June 2012 when he saw the plaintiff the referral letter from Dr Mutasim of 3 June 2012, the 24 May 2012 X-ray report from Dr Fraser and the films of the 24 May 2012 X-ray of the pelvis and hips and by reference to Dr Stening’s letters to Dr Mutasim of 20 June 2012 and 3 December 2012, please provide your view as to whether Dr Stening acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional opinion as competent professional practice in his management of the plaintiff on:
(a) 20 June 2012 (if she complained of):
(i) Pelvic and hip pain?
(ii) Pelvic and hip pain as well as lower back pain?
(b) December 2012 (if she complained of):
(i) Pelvic and hip pain?
(ii) Pelvic and hip pain as well as lower back pain?
The following is agreed:
(a) 20 June 2012 | 199 |
nsw_caselaw:178fd5962177b5b782d5c74c:200 | 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 | 8.1 Re (i) in the case of pelvic and hip pain only: the answer is ‘yes’, Dr Stening did act in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice in his management of the plaintiff. The same reasoning as set out in particular to the answers to question 6, is applicable.
(b) December 2012
8.2 Again, re (i) in the case of pelvic and hip pain only: the answer is ‘yes’. The same reasoning as set out in particular to the answers to question 6, is applicable.” | 200 |
nsw_caselaw:178fd5962177b5b782d5c74c:201 | 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 | 139. Question 6 had raised a similarly bifurcated issue as to the adequacy of Dr Stening’s examination of Hailee Williams. It was agreed that if she had only complained of pelvic and hip pain, his examination of her was adequate. For example, De Sekel said that as at 20 June 2012, with a complaint of pelvic and hip pain alone, it would be reasonable to just look at that area on examination. Both Dr Sekel and Dr Walker agreed that the position in each case would be different if Hailee Williams had complained of lower back pain that Dr Stening overlooked or essentially ignored. In other words, neither doctor would criticise Dr Stening’s conduct in their joint report responses if no complaint of back pain had been made to him in either June or December 2012.
140. This issue became a little more complex following cross-examination of these experts. Dr Walker said this: | 201 |
nsw_caselaw:178fd5962177b5b782d5c74c:202 | 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 | “HIS HONOUR: That’s the sort of history that a prudent orthopaedic surgeon examining an 18-year old would try to elicit I think was the question. | 202 |
nsw_caselaw:178fd5962177b5b782d5c74c:203 | 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 | WITNESS WALKER: So your question was for hip pain so this is I come back to this the word hip pain is very - it’s a layman’s word okay? Patients, and unfortunately general practitioners, tend to think that hip pain is in a different region. So, if a patient came to me and said they had hip pain I would say please show me where that pain is. Okay. Now, the pain in this case, if we’re being specific was related to the front of the pelvis over the anterior superior iliac spine. And I would not have then going into a deep detail with regards to asking specific questions, have they seen a podiatrist, have they seen an osteopath. I would have asked a possible cursory question around back pain. But again, if it's specific here and we’re not talking about diffuse pain in the pelvis, then that would have been less likely to have been asked. I would be surprised if I would have attempted to an elicit a lengthy history of allied health treatment for this problem.”
141. Dr Sekel had earlier given this evidence: | 203 |
nsw_caselaw:178fd5962177b5b782d5c74c:204 | 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 | “MORRIS: Dr Sekel, do you have anything to say about that?
WITNESS SEKEL: Nothing more than if they’ve come with a very specific point of complaint of an area that was unwell previously and it’s just exactly the same I wouldn’t necessarily go to the back but if it was anything like mild diffuse or if there was a diffusion and not specific I do think you’d look at the back.” | 204 |
nsw_caselaw:178fd5962177b5b782d5c74c:205 | 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 | 142. Despite the agreed answers in the joint report, Mr Morris attempted in his questioning of these doctors to suggest that with a complaint of only hip or pelvic pain, and without a complaint of back pain, it would amount to less than competent practice, or a breach of duty, not to ask Hailee Williams about back as well. Counsel for Dr Stening submitted that any suggestion to that effect offended common sense. Having regard to the nature of the inquiry required by s 5O, I take that submission to be that any opinion that a doctor should go looking for something about which a patient did not complain, or to which the doctor’s attention had not been directed by a letter of referral or similar, should be considered by me to be irrational: s 5O(2) of the Act.
143. However, the determination of this question was made easier by the following evidence given by the doctors: | 205 |
nsw_caselaw:178fd5962177b5b782d5c74c:206 | 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 | “DOWNING: And you’re aware that we’re talking about consultations in June and December. But if we start with June 2012, would you agree that it would be normal practice to ask a patient on their attendance a question along the lines of, where is your pain?
WITNESS SEKEL: Yes.
DOWNING: And to then, would you agree that if the answer was to the effect that it was pain at the front of the hips, it would appropriate questioning to then ask questions about the - what brought on the pain, any precipitating factor to start with.
WITNESS SEKEL: Yes.
DOWNING: And what was the character of the pain, asking them to describe the nature of the pain.
WITNESS SEKEL: Yes.
DOWNING: And ask them to indicate where the pain was localised.
WITNESS SEKEL: Yes.
DOWNING: They would all be appropriate questions for a competent orthopaedic surgeon to ask, I take it you agree with that.
WITNESS SEKEL: Yes. | 206 |
nsw_caselaw:178fd5962177b5b782d5c74c:207 | 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 | DOWNING: And Dr Walker, do you agree with the answer, with Dr Sekel’s answers to that?
WITNESS WALKER: Yes.
DOWNING: Thank you.
HIS HONOUR: If it’s of any assistance to you Mr Downing, I don’t think there’s likely to be any dispute that what Dr Sekel did--
DOWNING: Stening.
HIS HONOUR: …what Dr Stening did was appropriate, which those questions were, in large, directed at. I think the issue is obviously whether or not he should have done any more.
DOWNING: Well, yes your Honour but perhaps…
HIS HONOUR: Anyway, I’ll say no more, please go on. We don’t want to waste time.
DOWNING: If you assume, Dr Sekel, that on asking that question, where is your pain, the plaintiff only indicated the front of the hips, I suggest to you that it’s not necessary to then specifically ask her about the back, would you agree with that?
WITNESS SEKEL: Yes.
DOWNING: And Dr Walker.
WITNESS WALKER: Yes.” | 207 |
nsw_caselaw:178fd5962177b5b782d5c74c:208 | 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 | 144. I am satisfied having regard to the evidence that Dr Stening did not act otherwise than in accordance with then prevailing professional practice by not inquiring of Hailee Williams, presenting with a complaint of bilateral hip or pelvic pain in June or December 2012, whether she suffered from low back pain in the absence of a specific complaint from her about it. In accordance with recent authority, it becomes unnecessary to consider the different question of whether such a failure would in similar circumstances also have amounted to a breach of Dr Stening’s duty to take proper care in the provision of medical treatment. | 208 |
nsw_caselaw:178fd5962177b5b782d5c74c:209 | 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 December 2012 consultation
145. Hailee Williams does not contend that anything that occurred at the 3 December 2012 consultation gives rise to any fresh allegations of negligence by Dr Stening. Her submissions say that “the primary case against Dr Stening rests with the 20 June 2012 consultation” and that the “consultation of 3 December 2012 was another opportunity for the back issue to have been discovered and acted on, but it was not”. Her submissions go on to say that “in this regard, the breach of 20 June 2012 subsumes what occurred later on 3 December 2012 in terms of causation”.
146. Hailee Williams maintains that her back condition remained undiagnosed at this consultation. That was said to be “in large part” because Dr Fraser did not disclose the existence of the pars defect on the radiology report that was provided to, and relied upon by, Dr Stening. | 209 |
nsw_caselaw:178fd5962177b5b782d5c74c:210 | 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 | 147. Whatever these submissions intended to convey by the use of the expression “in large part”, suggesting or inferring that Dr Stening also committed some additional discrete act of negligence on 3 December 2012, it is not reflected in the particulars of negligence alleged against him in the current pleading. I take this particular submission to mean, in the light of the pleadings, that if Dr Stening did not breach his duty of care to Hailee Williams in June 2012, he did not do so thereafter. The particulars of negligence at paragraph 97 (a) – (k) isolate the relevant date as 20 June 2012. To the extent that the particulars at paragraph 97(l)-(u) allege failures by Dr Stening thereafter, they are all founded on the proposition that Hailee Williams was complaining to Dr Stening of lower back pain, a proposition which I have rejected. Specifically, I do not accept that either Hailee Williams or her mother reported or demonstrated back pain during the 3 December 2012 appointment with Dr Stening. | 210 |
nsw_caselaw:178fd5962177b5b782d5c74c:211 | 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 | Conclusions – breach of duty
148. Dr Fraser’s admitted breach of duty forecloses the need further to consider that issue with respect to him. The question of whether his breach of duty caused any loss to Hailee Williams is discussed below. | 211 |
nsw_caselaw:178fd5962177b5b782d5c74c:212 | 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 | 149. In my opinion, Hailee Williams has not established that Dr Stening was told by her, or by her mother, or that he otherwise became, or should have become, aware that she was suffering from low back pain at any time between 20 June 2012 and December 2012. I find that with respect to the 20 June 2012 and 3 December 2012 attendances, neither Hailee Williams nor her mother made any complaint of back pain, either by words or demonstration. I am satisfied that Dr Stening proceeded upon the basis that Hailee Williams was referred to him complaining of bilateral hip and pelvic pain and that that is what she described to him on 20 June 2012. She did not describe anything different on 3 December 2012. In those circumstances, any conclusion that Dr Stening either failed to act in accordance with widely accepted competent professional practice or any allegation that he breached the duty that he owed to conform to the standard of care required of a reasonably competent paediatric orthopaedic surgeon cannot stand. | 212 |
nsw_caselaw:178fd5962177b5b782d5c74c:213 | 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 | 150. In the result, there should be judgment for Dr Stening. | 213 |
nsw_caselaw:178fd5962177b5b782d5c74c:214 | 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 | Causation | 214 |
nsw_caselaw:178fd5962177b5b782d5c74c:215 | 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 | What was Hailee Williams’ condition after 24 May 2012 but prior to surgery on 13 June 2013?
151. Hailee Williams maintains that she has sustained loss and damage, in the sense that her condition deteriorated to its current state because she did not receive appropriate advice and conservative management after 24 May 2012. She claims further that both her pre-surgical condition and her post-surgical condition would have been entirely prevented if that treatment had been provided and that her damage has therefore been caused by Dr Fraser’s breach.
152. Dr Fraser maintains that Hailee Williams’ problems are the unavoidable result of her congenital spinal condition which could not have been prevented by conservative management as she alleges. Dr Fraser also contends that surgery was in any event inevitable and that Hailee Williams’ current situation is a response to that surgery rather than a continuation and deterioration of her antecedent pre-surgical medical problems. | 215 |
nsw_caselaw:178fd5962177b5b782d5c74c:216 | 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 | 153. In these circumstances, it becomes necessary to determine what her antecedent medical condition was immediately prior to surgery on 13 June 2013. It matters not for the purposes of this question whether that condition was or was not preventable by conservative management in the way she alleges: this is considered below.
154. In my opinion, Hailee Williams’ condition in June 2013 was parlous. There is evidence to suggest that on or close to the day her surgery was performed, Hailee Williams was in a state of incipient neurological compromise with potentially catastrophic consequences, including paralysis, if not corrected. | 216 |
nsw_caselaw:178fd5962177b5b782d5c74c:217 | 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 | 155. It is not in issue that Hailee Williams suffers from a chronic pain syndrome consisting of neuropathic and nociceptive pain with significant sensitisation of her nervous system as an aggravating factor. However, there is a divergence of views among experts as to whether that syndrome arose for the first time after surgery on 13 June 2013 or whether what she describes in submissions as “presurgical nerve insults” with developing radiculopathy, spinal lordosis, urinary incontinence and peripheral anaesthesia, among other things, were the prime cause, with later surgery no more than “the tipping point” in that process. | 217 |
nsw_caselaw:178fd5962177b5b782d5c74c:218 | 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 | 156. Dr Fraser asserts that Hailee Williams suffers from what is called a failed back surgery syndrome, which is a group of conditions associated with persistent or recurrent low back pain, with or without sciatica, following spinal surgery. Dr Fraser relies upon material supporting the assertion that between 10 and 40 percent of all people with pre-existing lower back pain who undergo surgery will develop chronic pain in the spine and the limbs after a single spinal surgical procedure. Hailee Williams emphasises that such a statistic is no more than an uncontroversial recognition of the fact that somewhere between 60 and 90 percent of people recover. | 218 |
nsw_caselaw:178fd5962177b5b782d5c74c:219 | 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 | 157. The evidence does not appear precisely to describe or explain the mechanism for the development of Hailee Williams’ chronic pain syndrome other than by reference to her pre-operative and post-operative conditions. Dr Cree was the surgeon who operated on Hailee Williams. His unchallenged evidence was that she had pre-operative urinary incontinence, saddle anaesthesia and diminished tone consistent with “full-blown” cauda equina-type syndrome on 13 June 2013, although not consistent with an MRI scan demonstrating L2-L3 compression.
158. This issue was discussed at considerable length in the evidence of experts in joint session on 26 June 2020. It revolved in large part around the question of whether Hailee Williams had a cauda equina syndrome and whether or not that was in effect an essential indicator for surgery in her case.
159. Dr Sekel agreed that Hailee Williams did not have cauda equina syndrome. Dr Sutton’s view was as follows: | 219 |
nsw_caselaw:178fd5962177b5b782d5c74c:220 | 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 | “WITNESS SUTTON: Can I make one further point, just to go back to what we spoke about earlier this morning. When you have a slip you have an increase in capacity of the spinal canal. You normally see a cauda equina syndrome when there is a disc protrusion and mechanical compression of the cauda equina. We're not - as a result of the spondylolisthesis the spinal canal is actually wider, there is no mechanical compromise of the sacral nerve roots.”
160. Dr Biggs made the following point:
“WITNESS BIGGS: …What we've all agreed upon, everyone in this room and all the radiologists is that there are bilateral defects in the pars, hence the slippage will not cause the compression of the cauda equina.”
161. Professor Dan contributed to the discussion on the issue of whether Hailee Williams’ signs were an indication for surgery. These were things such as kyphosis and loss of lumbar lordosis. He expressed this view: | 220 |
nsw_caselaw:178fd5962177b5b782d5c74c:221 | 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 | “WITNESS DAN: I think that what Dr Biggs was saying was spot on. I also think that it should be stated, fairly strongly that the presence of those factors in themselves aren’t a reason for immediate surgery. And I think that if I had seen her on that day, she would have been put on an elective waiting list, rather than anything urgent. And I suspect she would have come to surgery at around the same time.”
162. I take that opinion to be that Hailee Williams’ condition was such that at or around 13 June 2013 she was going to require surgery sooner or later, even if the urgency perceived by Dr Cree was overstated. However, the corollary of that eminent opinion is that at some point before 13 June 2013, she was suffering significantly from lower back problems that were causing distress that was sufficient for her then treating orthopaedic surgeon to consider that he could not safely postpone operating to relieve her symptoms. | 221 |
nsw_caselaw:178fd5962177b5b782d5c74c:222 | 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 | 163. Associate Professor Boesel offered a very comprehensive and helpful opinion about the aetiology of Hailee Williams’ pain syndrome:
“WITNESS BOESEL: So, I believe that this patient had pre-existing vulnerabilities prior to the development of her spondylolisthesis related nerve compression, and those include a history of migraine and endometriosis, both of which are painful conditions. In the psychological, psychiatric domain, she had been adversely affected by the death of a close friend at some point relatively close to the development of these physical problems, so those can be understood as priming factors or vulnerabilities, and certainly, within the post-surgical pain syndrome literature, these sorts of factors are recognised; right? So, psychological vulnerabilities seem to reduce the resilience of the nervous system to painful insults, and other painful conditions increase the propensity to develop this sensitised state, so that's the background of the patient. | 222 |
nsw_caselaw:178fd5962177b5b782d5c74c:223 | 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 | She then went on to develop a progressive spondylolisthesis, that became symptomatic between December and the time of her operation in 2013. From my reading of the record and the patient's history, the predominant pain complaint was, in fact, one of back pain, which you can certainly attribute to the structure deterioration in her lumbar spine. She then went on to have corrective surgery, and to be clear, if you look at Dr Cree's reasoning, he was concerned about further neurological deterioration. He noted that there was evidence of radiculopathy in the form of weakness, in the extensor hallucis longus, which correlates with the L5 dermatome, and some mild sensory change. He did not comment about neuropathic pain at that point. The goal of the operation was to stabilise the spine and prevent further deterioration and the development of further neurological compromise. Pain, I don't think, was part of the decision making process, your Honour, so it was about mechanical salvage and stabilisation, and | 223 |
nsw_caselaw:178fd5962177b5b782d5c74c:224 | 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 | certainly, I am of the opinion, based on looking at the scans, that that was competently achieved, so she has a stable spine, and that region has been posteriorly decompressed to allow for more room within the spinal canal, and the L5 nerve roots appear to have been successfully decompressed as well. | 224 |
nsw_caselaw:178fd5962177b5b782d5c74c:225 | 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 | Now, the major problem that this lady has subsequently developed, and that she now has, is severe back pain and severe leg pain. The back pain, on my examination, clearly has neuropathic features, so she's hyper sensitive, she can't tolerate light touch, she can't tolerate stimulation with pin prick, but at the same time, she also has some sensory impairment in that region, so they're all classic nerve pain features, and when I speak of the superior cluneal nerves, they're nerves that cover the lumbar region up to the top of the buttock, and that's where she's experiencing a lot of her back pain. Now, there is also mechanical pain really related to muscular deterioration, predominantly, and perhaps a little bit of arthritis next to the fusion as well, so these two things are overlaid with each other. Now, I think there's been a major sensitisation process as part of the development of this back pain. In terms of the lower limb condition, she has neuropathic pain below the knees with associated | 225 |
nsw_caselaw:178fd5962177b5b782d5c74c:226 | 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 | sensory change, but that is in the distribution of multiple dermatomes, which would suggest that something else happened to her beyond a period of L5 compression, which didn't manifest predominantly with pain prior to surgery. So, I would attribute the predominant cause of her condition to a combination of pre-existing vulnerabilities, and then the effects of the surgery with the spinal canal having been instrumented extensively, and manipulated, and the nerves having been manipulated.” | 226 |
nsw_caselaw:178fd5962177b5b782d5c74c:227 | 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 | 164. However, as the experts agreed in the Joint Causation Report, those pre-existing vulnerabilities that occurred between February 2013 and June 2013 included lower back pain, radicular pain, loss of lumbar lordosis, peripheral anaesthesia, urinary incontinence, saddle anaesthesia and diminished anal tone. Dr Fisher was of the view that these pre-existing vulnerabilities materially contributed to Hailee Williams’ ultimate pain syndrome:
“WITNESS FISHER: Well, if all those ducks line up then, you know, on the balance of probabilities, you'd say that it's likely that the spondylolisthesis and the disc compression, and the degree of its impingement on the nerve L5 nerve root is quite likely to have contributed to her pain at that time, and to the ultimate development of a chronic neuropathic pain capped off by the impact of the major operation.” | 227 |
nsw_caselaw:178fd5962177b5b782d5c74c:228 | 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 | 165. I am unable to accept Associate Professor Boesel’s emphatic views that Hailee Williams’ pain syndrome was only caused by her surgery. The evidence in this case satisfies me that Hailee Williams continued to suffer from similar symptoms after her surgery to those she had unfortunately suffered before it, and which significantly supported the decision to operate upon her. | 228 |
nsw_caselaw:178fd5962177b5b782d5c74c:229 | 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 | Could Hailee Williams’ condition have been avoided by prior conservative management and was surgery always inevitable?
166. As is apparent, Dr Fraser has conceded that he breached his duty in failing to identify Hailee Williams’ right sided pars defect and in failing to report to Dr Mutasim that she required further radiological imaging of her lumbosacral spine. I have already concluded, and Dr Fraser has acknowledged, that he breached his duty in those respects.
167. Hailee Williams contends that her undiagnosed pars defect could and should have been managed conservatively with core strengthening exercises, restrictions on her work obligations and recreational pursuits and by avoiding strenuous activities entirely. She maintains that on the balance of probabilities, her spinal condition would have effectively resolved if treated in this way and that surgical intervention could and would have been entirely avoided or at least restricted.
168. Hailee Williams’ submissions were as follows. | 229 |
nsw_caselaw:178fd5962177b5b782d5c74c:230 | 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 | 169. The experts agree that had Hailee Williams’ pars defect, whether it be dysplastic or isthmic, been diagnosed in or before January 2013, she would have been treated conservatively with non-operative management. That conservative treatment would have involved physiotherapy, hydrotherapy, core strengthening exercises with advice to avoid lifting, weightlifting and any high impact exercises. She would also have been advised to avoid any hyperextension activities including kickboxing, gymnastics and bending over and lifting children. She would have been told to avoid spinal manipulation and/or spinal adjustments by chiropractors, osteopaths or her physiotherapist. Moreover, Hailee Williams would have been told to change her occupation from childcare to one that did not involve flexion, extension and lifting weights. | 230 |
nsw_caselaw:178fd5962177b5b782d5c74c:231 | 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 | 170. The reason underpinning such advice relates to removing activities that traumatise the lumbar discs and precipitate spondylolysis or low Grade I spondylolisthesis progression or movement. Repetitive activities involving lumbar extension or flexion and lifting heavy weights aggravates the lumbar discs and can wear articulating surfaces of the L5 and S1 vertebrae, ultimately leading to compression of the intervertebral disc, disc degeneration and loss of disc height, crushing the lumbar L5 nerve causing radiculopathy and further spondylolisthesis slippage.
171. The experts agree that symptoms of nerve irritation, such as shooting pains in the legs, leg cramps (including nerve irritation or referred back pain), pain below the knee and into the dorsum of the foot, lower limb pins and needles and lower limb paraesthesia are suggestive, particularly the latter, that the nerves are under pressure or duress. | 231 |
nsw_caselaw:178fd5962177b5b782d5c74c:232 | 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 | 172. Dr O’Neill’s opinion was that sensory loss or sensory symptoms or weakness (including pins and needles and paraesthesia), indicates that the nerves are under serious compromise, and may lead to partially irreversible damage.
173. Furthermore, there is agreement among the experts that had Hailee Williams’ pars defect/spondylolysis or low Grade I spondylolisthesis been identified, she would have been clinically assessed, a detailed history of her symptoms would have been obtained and arrangements would have been made for further radiological investigations, such as lateral X-rays and flexion extension views and MRI scans. The purpose of the further radiology and clinical assessment and monitoring is to identify the problem, the nature and extent of the pars defect (dysplastic or isthmic), spondylolysis or low Grade I spondylolisthesis and to monitor its progression (if any). The experts agree that Hailee Williams would in such circumstances have been reviewed every three months. | 232 |
nsw_caselaw:178fd5962177b5b782d5c74c:233 | 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 | 174. The literature spanning several decades consistently reports on the mechanism likely to cause spondylolisthesis, the prescription of conservative management to treat it and the advice in favour of surgical intervention if the spondylolisthesis progresses to a symptomatic or disabling high grade (Grade III or above).
175. The literature and the experts also agree that the incidence of spondylolysis can appear sometime after walking begins, implying that upright posture and bipedal position plays a significant role in its development. Its incidence increases from 4.4 per cent in children aged six years to 6 per cent by 18 years and remains stable at that rate and from that age throughout adulthood.
176. The condition is observed in children and adolescents who have participated in sports that involve repetitive hyperextension of the trunk, such as gymnastics, weightlifting, swimming, wrestling, rowing, javelin throwing and cricket, thus making the condition symptomatic. | 233 |
nsw_caselaw:178fd5962177b5b782d5c74c:234 | 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 | 177. For adolescents presenting with Grade I (0% - 25%) or Grade II (26% - 50%) isthmic spondylolisthesis (based on the Wiltse-Newman classification and Meyerding spondylolisthesis grading system), those who are treated conservatively experience resolution of their pain symptoms and stabilisation of their spondylolisthesis in over 80 percent of cases. Following conservative treatment, according to the literature, they return to normal activities of daily living, including sporting activities, and do not progress to surgery. Similarly, according to the literature, in adolescents presenting with Grade I or Grade II dysplastic spondylolisthesis and treated conservatively, 68 percent or more responded to conservative treatment and avoided surgical intervention. The literature further notes, and the experts agree, that the progression of spondylolisthesis after 20 years of age is much less likely to occur due to ossification of the growth plates (skeletal maturity) and the tightening (fibrosis) of the | 234 |
nsw_caselaw:178fd5962177b5b782d5c74c:235 | 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 | musculo-ligamentous tendons. | 235 |
nsw_caselaw:178fd5962177b5b782d5c74c:236 | 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 | 178. Dr Sekel and Dr Drnda said that the conservative treatment regime is not only intended to avoid all activities of hyperextension and lifting but also to provide targeted core strengthening exercises, to allow the ligaments to mature and to permit the formation of osteophyte calcification around the damaged disc which stabilises the spine. Conservative management is designed to get past a developmental period where the patient has hyper-elastic musculo-ligamentous tendons which then develop during the transition to skeletal maturity.
179. Professor Earwaker gave evidence that he has seen radiological images of people with Grade II dysplastic spondylolisthesis who were skeletally mature, whose dysplastic spondylolisthesis had stabilised without surgical intervention.
180. The literature also indicates that the incidence of spondylolisthesis progression in the dysplastic type is approximately 32 per cent and in the isthmic type 4 per cent. Dr Biggs gave evidence about this which is referred to below. | 236 |
nsw_caselaw:178fd5962177b5b782d5c74c:237 | 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 | 181. Dysplastic spondylolisthesis is associated with lumbosacral kyphosis, involving a trapezoidal L5 vertebra with hypoplastic transverse processes and sacral doming. The combination of the dysplastic anomaly juxtaposed with the sacral doming increases the potential of a rapid slip. Some experts suggested that sacral doming is indicative of inevitable progression leading to surgical intervention. Hailee Williams challenged that proposition, noting that it does not definitively lead to surgery. She maintained that there is controversy in the literature regarding whether the properties of the L5 vertebral body and the sacrum are predictive of slip progression.
182. The experts agreed, directly or otherwise, that recurrent backwards and forwards movement of the L5 vertebra over the S1 vertebra can cause sacral doming and that the removal of repetitive lumbar extension and flexion movement, consistently with conservative management, reduces the force on the sacrum and thereby reduces sacral doming. | 237 |
nsw_caselaw:178fd5962177b5b782d5c74c:238 | 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 | 183. In short, Hailee Williams submitted that she was a candidate for non-surgical conservative management, notwithstanding the nature and extent of her congenital condition in mid-2012.
184. Dr Fraser contends on the contrary that the pars defect was such that it could never have been satisfactorily managed in this way and that it was inevitable that Hailee Williams would have had to submit to surgery of the type that she ultimately underwent.
185. The process of assessing hypothetical causation was described by Hayne J in Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 at [113] thus:
“The search for causal connection between damage and negligent act or omission requires consideration of the events that have happened and what would have happened if there had been no negligent act or omission. It is only by comparing these two sets of facts (one actual and one hypothetical) that the influence or effect of the negligent act or omission can be judged.” | 238 |
nsw_caselaw:178fd5962177b5b782d5c74c:239 | 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 | 186. This analysis was reinforced by the High Court in Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 at [66] as follows:
“For the purposes of the law of negligence, ‘damage’ refers to some difference to the plaintiff. The difference must be detrimental. What must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that a difference has been brought about and that the defendant's negligence was a cause of that difference. The comparison invoked by reference to ‘difference’ is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligent act or omission not occurred.”
187. In Bolitho v City and Hackney Health Authority [1998] AC 232; [1997] UKHL 464, Lord Browne-Wilkinson said this: | 239 |
nsw_caselaw:178fd5962177b5b782d5c74c:240 | 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 | “Where, as in the present case, a breach of a duty of care is proved or admitted, the burden still lies on the plaintiff to prove that such breach caused the injury suffered: Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613; Wilsher v. Essex Area Health Authority [1988] A.C. 1074. In all cases the primary question is one of fact: did the wrongful act cause the injury? But in cases where the breach of duty consists of an omission to do an act which ought to be done (e.g. the failure by a doctor to attend) that factual inquiry is, by definition, in the realms of hypothesis. The question is what would have happened if an event which by definition did not occur had occurred… | 240 |
nsw_caselaw:178fd5962177b5b782d5c74c:241 | 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 | However, in the present case the answer to the question ‘what would have happened?’ is not determinative of the issue of causation. At the trial the defendants accepted that if the professional standard of care required any doctor who attended to intubate Patrick, Patrick's claim must succeed. Dr. Horn could not escape liability by proving that she would have failed to take the course which any competent doctor would have adopted. A defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter. I have no doubt that this concession was rightly made by the defendants. But there is some difficulty in analysing why it was correct. I adopt the analysis of Hobhouse L.J. in Joyce v. Merton, Sutton and Wandsworth Health Authority [1996] 7 Med. L.R. 1. In commenting on the decision of the Court of Appeal in the present case, he said, at p. 20: | 241 |
nsw_caselaw:178fd5962177b5b782d5c74c:242 | 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 | ‘Thus a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person's duty towards the plaintiff required that she take that action. The former alternative calls for no explanation since it is simply the factual proof of the causative effect of the original fault. The latter is slightly more sophisticated: it involves the factual situation that the original fault did not itself cause the injury but that this was because there would have been some further fault on the part of the defendants; the plaintiff proves his case by proving that his injuries would have been avoided if proper care had continued to be taken. In the Bolitho case the plaintiff had to prove that the continuing exercise of proper care would have resulted in his being intubated’." | 242 |
nsw_caselaw:178fd5962177b5b782d5c74c:243 | 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 | 188. In the present case, Dr Fraser’s failure to observe or to report upon Hailee Williams’ pars defect on 24 May 2012 caused no immediate loss or damage to her. However, to the extent that Dr Stening and others relied upon the radiology report to treat her, and did so thereafter in a way that differed from what they would have done if they had known of the true anatomical position, any loss that Hailee Williams suffered as a result is on her case a loss that was caused by Dr Fraser’s breach of duty.
189. Hailee Williams has submitted that Dr Mutasim and Dr Stening were reliant upon Dr Fraser’s report in the following ways:
1. In forming their clinical opinions.
2. In formulating clinical management plans.
3. In advising Hailee Williams about the serious nature of her condition and about the vocational and recreational activities she should avoid, and the rehabilitative steps she should take to minimise the risk of further injury. | 243 |
nsw_caselaw:178fd5962177b5b782d5c74c:244 | 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 | 190. Hailee Williams submitted that Dr Fraser’s report was critical to Dr Stening’s decision about whether he had the necessary skills to manage her properly or whether she should be referred on for paediatric orthopaedic care with a sub-specialty in the treatment of paediatric spinal conditions. Dr Stening’s evidence was that if there had been complaints of pain in a different body part, especially if Hailee Williams were not responding to attempts to relieve the pain of which she complained to him, he would have referred her for an MRI scan:
“Q. If it be the case that on 3 December the plaintiff provided you with complaints of pain in a new body part, is that something that you believe you would have included in your letter to Dr Mutasim? | 244 |
nsw_caselaw:178fd5962177b5b782d5c74c:245 | 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. If it's, yeah, if it's a new symptom that would concern me, would prick my ears up that maybe something else is going on. Particularly at that point where she was not responding to, you know, my traditional approach to try and relieve pain around the anterior superior iliac spine so, and I'm starting to think maybe something else is going on, hence the referral for the MRI scan.”
191. In the events that occurred, Dr Stening did not order further tests or other diagnostic assistance. | 245 |
nsw_caselaw:178fd5962177b5b782d5c74c:246 | 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 | 192. Dr Fraser’s position on the issue of whether his breach of duty caused any loss or damage is that it did not, in the sense that the evidence on his account establishes on the balance of probabilities that Hailee Williams would have come to surgery on or about 13 June 2013, as she did, whether or not he had breached his duty of care. He contends that the very same pain condition and consequent psychiatric difficulties from which she now suffers were the inevitable consequence of her congenital defect which would have developed sooner or later, whether she had surgery or not, and could not have been prevented by the implementation in or about June 2012 of a regime of conservative management. In short, the loss she has sustained cannot be attributed to his breach. | 246 |
nsw_caselaw:178fd5962177b5b782d5c74c:247 | 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 | 193. Moreover, Dr Fraser contends that, even if Hailee Williams sustained what might be described as pre-surgical loss as the result of his breach, the genesis of her current pain syndrome is solely to be regarded as the manifestation of the surgical procedure itself, as distinct from her antecedent medical condition, and that the surgery was inevitable. Dr Fraser also contends that anything from which Hailee Williams now suffers is the materialisation of an inherent risk of the surgery that could not have been avoided by the exercise of reasonable care and skill.
194. Consistently with the decision in Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311, where a case can conveniently be decided under s 5I, it should be. This is because s 5I, like s 5O, does not merely deny s 5B causation but provides a defendant with a compete answer to any claim falling within Part 1A of the Civil Liability Act.
195. Section 5I of the Act provides as follows:
5I No liability for materialisation of inherent risk | 247 |
nsw_caselaw:178fd5962177b5b782d5c74c:248 | 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) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
(2) An “inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.
(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.
196. Dr Fraser submitted that at any time during which Hailee Williams may have come to surgery, from mid-February 2013 until 13 June 2013 (or what Dr Fraser suggests is “more realistically” from April 2013 until 13 June 2013), there was an inherent risk of her developing a failed back surgery syndrome or a mixed pain state and that such risk was one that could not have been avoided by the exercise of reasonable care and skill, whether on Dr Fraser’s part or on the part of anyone else who may have treated her if her spondylolisthesis had been diagnosed earlier. | 248 |
nsw_caselaw:178fd5962177b5b782d5c74c:249 | 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 | 197. Clearly enough, Hailee Williams’ primary case is that she would have avoided surgery altogether if Dr Fraser had not breached his duty of care. That case proceeds upon the basis that conservative management, including core strengthening, would have prevented the progression of her slip and that Hailee Williams would have “continued to suffer from minor back twinges from time to time but she would not [have become] grossly disabled”. Dr Fraser maintains that such a proposition “simply cannot be maintained on the available evidence”, particularly the evidence of the radiologists and orthopaedic surgeons, neurosurgeons, neurologists and rehabilitation physicians. | 249 |
nsw_caselaw:178fd5962177b5b782d5c74c:250 | 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 | 198. Briefly stated, Dr Fraser’s position is that Hailee Williams’ pain condition was the unavoidable consequence of surgery that was itself inevitable: the earlier discovery of her spondylolisthesis would not have led to the avoidance of surgery, even with conservative interventions. It follows, therefore, that for the inherent risk defence to succeed, Dr Fraser must establish two things. First, that Hailee Williams would have required surgery for her spondylolisthesis, even if her pars defect had been diagnosed earlier and treated (as she says it should have been), with lumbosacral imaging revealing the spondylolisthesis, associated limitation on activities, the recommendation for core strengthening exercises and physiotherapeutic care. The second is that Hailee Williams would always have risked developing the harm from which she now unarguably suffers, whether caused by the surgery or not, and that it could not have been avoided by the exercise of reasonable care and skill. | 250 |
nsw_caselaw:178fd5962177b5b782d5c74c:251 | 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 | 199. Dr Fraser maintained that irrespective of whether Hailee Williams was properly advised and conservatively managed, as he concedes she would have been had her spondylolisthesis been diagnosed in June 2012, she would always have come to surgery on or around 13 June 2013. This was said to be for several reasons, drawn from Dr Fraser’s written submissions as follows.
200. First, most experts have indicated for various reasons that in her case, surgery for Hailee Williams was inevitable. That is the view of Professor Dan, Dr Tuffley, Dr O’Neill, Dr Sutton, Dr Biggs and Associate Professor Boesel. Only Dr Sekel and Dr Drnda support the alternative view. Dr Fraser suggested that the minority view was flawed for several reasons.
201. For example, Dr Sekel’s support for Hailee Williams’ position was based on statistics as to dysplastic spondylolisthesis. It is also submitted that Dr Sekel has changed the position he agreed to at the experts’ conclave: | 251 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.