Australia: Williams v Fraser: did a failure to diagnose cause compensable damage?

Abstract
Williams v Fraser ¹ was handed down by the New South Wales Court of Appeal on 7 October 2022. It involved an appeal from the Supreme Court of New South Wales arising out of the alleged negligence and failure of a radiologist, Dr Fraser, to identify and report of the Plaintiff's congenital pars defect. The Court of Appeal dismissed all grounds of appeal and, in doing so, criticised the appellant's last minute changes to pleadings and the corresponding lack of evidence produced to support them.

Introduction and background

The appellant was born with a congenital pars defect (also known as dysplastic spondylolysis); however, she remained asymptomatic until 2009 when she was aged 15 and began to experience hip pain. Initially, this was treated conservatively with no diagnosis being made — the pain went away. However, in March 2012, when the appellant was aged 18, the pain returned shortly after she had begun working at a childcare centre, a job involving repetitive lifting. Her general practitioner referred her for radiology and orthopaedic review in May 2012. While the X-ray showed the pars defect, the respondent radiologist, Dr Fraser, failed to identity this. The orthopaedic surgeon, Dr Stening, relied on the respondent's report and ordered conservative treatment.

The appellant's symptoms worsened. In June 2013, further radiology was done. This demonstrated that the appellant had spondylolisthesis, consequent to the pars defect, whereby one of her vertebral discs was slipping forward on the other. The appellant was referred to a different orthopaedic surgeon who performed urgent spinal surgery on her. The appellant then developed a secondary chronic pain syndrome as a direct consequence of the surgery. It was recognised that the surgery was performed competently, but the chronic pain syndrome was an inherent risk thereof.

Procedural history

In 2015, the appellant brought proceedings in the Supreme Court of New South Wales claiming damages arising from breaches of duty of care owed to her by three medical professionals—the radiologist, Dr Fraser, the initial orthopaedic surgeon, Dr Stening, and her physiotherapist, Mr Seabury. The proceedings against Mr Seabury were subsequently discontinued. The primary judge gave judgment in favour of both defendants with costs.² The appellant appealed against the judgment in favour of Dr Fraser.

The grounds for appeal were that the primary judge erred in:

(1) failing to address the appellant's submissions on causation;

(2) failing to provide adequate reasons on the issue of causation;

(3) failing to make relevant findings on the issue of causation;

(4) making errors of factual analysis and reasoning underpinning the causation conclusion; and

(5) misdirecting himself in his analysis of the evidence of two medical practitioner witnesses by finding that their evidence amounted to a "loss of chance".

The appeal was undertaken by way of rehearing.³ Acting Justice of Appeal Simpson noted the significance in the present case of the Court of Appeal's ability to exercise the powers and duties of the Supreme Court in drawing inferences and making findings of fact ⁴ given the last-minute changes to the appellant's argument at trial.⁵

The Court of Appeal's decision

Acting Justice of Appeal Simpson, Macfarlan JA ⁶ and Gleeson JA ⁷ agreeing, dismissed the appeal. They were particularly critical of the last minute changes to pleadings made on behalf of the appellant. The first of these changes was that the appellant's pars defect had not progressed to spondylolisthesis in May 2012, such that the respondent's breach effected this progression. The second identified that the harm underlying the cause of action was not the chronic pain condition but rather the specific damage caused to the appellant's spinal discs. Each of these, and the Court of Appeal's response, is considered in turn below.

Pars defect or spondylolisthesis?

At first instance, the appellant's case against Dr Fraser had largely been argued on the basis that the appellant's condition as at May 2012 had included spondylolisthesis. However, shortly before the conclusion of trial, it was contended that the appellant only had a pars defect at this time. As such, the appellant's case became that had she been appropriately treated and ceased the work she was doing, she may have been able to avoid spondylolisthesis, the consequent spinal surgery and thus the chronic pain condition.

To succeed in her case of negligence against the respondent, it was necessary for the appellant to establish, on the balance of probabilities, that the respondent's failure to recognise and/or report on the existence of the pars defect was a necessary condition of the occurrence of the harm she suffered ("factual causation").⁸ As the appellant accepted that her chronic pain condition was always a possible outcome of the 2013 surgery, it was necessary for her to prove, on the balance of probabilities, that but for the respondent's negligence she would have avoided the surgery and the adverse consequences which followed (chronic pain syndrome).⁹ This requires a hypothetical comparison between what actually happened and what would have happened had the respondent recognised the pars defect in the 2012 X-ray.¹⁰ While it was accepted that Dr Stening would have ordered a different course of treatment, the Court of Appeal found this would not necessarily have obviated the need for the 2013 surgery. As identified by the Court of Appeal:¹¹

If the appellant already had a disc slippage—spondylolisthesis— it may be taken (and it is implicit, if not explicit, in the medical evidence) that that would significantly diminish the prospects of a favourable outcome from conservative treatment and make it more likely that the appellant would have come to surgery in any event.

Therefore, whether the appellant had spondylolisthesis in May 2012 became an "important, if not critical, fact in the hypothetical analysis".¹²

However, as Simpson AJA noted, there was never a clearly spelled-out distinction between the potential diagnosis of a pars defect and spondylolisthesis.¹³ If this had been done, then the primary judge would have had to determine whether the appellant had spondylolisthesis as at May 2012. If it was found she did not, then the inquiry would have become whether conservative treatment would have prevented such degeneration. However, Simpson AJA identified that the primary judge did not undertake that exercise as he, as well as the numerous medical experts in the case, were not asked to do so.¹⁴ Indeed, the respondent's response to grounds 1 to 3 was that given the belated raising of these issues, it was unfair to criticise the primary judges response.

Acting Justice of Appeal Simpson opined that this was "particularly so when it is borne in mind that, although the proper classification of the appellant's condition was raised, no, or no cogent, submissions were made as to what would follow from a finding that spondylolisthesis was not present".¹⁵

Having highlighted the lack of evidence presented, Simpson AJA then exercised the powers in the Supreme Court Act 1970 (NSW) ¹⁶ to determine what the evidence established as to the condition of the appellant's spine. After surveying the medical experts' opinions, Simpson AJA found that "the conclusion that, as at 24 May 2012, the appellant already had the condition of spondylolisthesis is inevitable". As such, the primary judge did not err in approaching the question of causation on the basis that the appellant already had spondylolisthesis.

The particular harm: disc damage or chronic pain syndrome

Acting Justice of Appeal Simpson was also critical of the appellant's last minute alteration of her identification of the harm caused by the respondent's breach. While the case was initially run on the basis that the "harm" caused was the chronic pain condition, final written submissions identified the harm as disc damage and the progression of the pars defect to spondylolisthesis. On this basis, the appellant contended that the primary judge had "mischaracterised" the harm suffered by the appellant by not addressing this "secondary position". In this, the appellant effectively identified a cause of action that arose against the respondent after the 2012 X-rays but prior to the June 2013 surgery.¹⁷

Acting Justice of Appeal Simpson disposed of this argument, stating that while there may well have been a complete cause of action at that time, this was not the cause of action on which the appellant sued.¹⁸ Acting Justice of Appeal Simpson remarked ". . . damage is the gist of a cause of action in negligence. And the cause of action on which the appellant sued was based upon damage constituted by her chronic pain syndrome".¹⁹ The particular harm ²⁰ required to establish factual causation was the chronic pain condition, not any other disc damage alter presented by the appellant.

In light of this, Simpson AJA rejected the appellant's contention that the primary judge mischaracterised the appellant's case — the "secondary position was not a case made at trial".²¹

Return to the real issue

Acting Justice of Appeal Simpson then returned to what he considered to be the "real issue" — whether the respondent's breach of duty was the cause of the appellant's present chronic pain condition. Thus, this returned the Court of Appeal to a consideration of whether any alternative treatment plan initiated by Dr Stening would have averted the progression of the appellant's condition and thus obviated the 2013 surgery. Aside from one expert, the overall medical evidence was insufficient to establish, on the balance of probabilities, that the appellant would have avoided surgery.

"Loss of chance"

The Court of Appeal also considered Malec v JC Hutton Pty Ltd; ²² Sellars v Adelide Petroleum NL;23 Tabet v Gett ²⁴ — in rejecting appeal ground 5 that the trial judge misdirected himself in his analysis of the evidence of Dr Drnda and Prof Sekel in finding their evidence amounted to a loss of a chance.²⁵

The Court of Appeal, in rejecting this ground, concluded:

The primary judge was acutely aware of the distinction between proof of damage on the balance of probabilities, and proof that appropriate treatment by Dr Stening would have offered the appellant a chance of a better outcome (in this case, the avoidance of surgery and the consequent chronic pain condition). That is most clearly seen in [226] of the primary judgment, extracted above. His Honour expressly referred to the opinions of various of the specialists, and was unable to be satisfied that a conclusion that the appellant, if treated properly, would have had a chance of avoiding the surgery and thus the chronic pain syndrome equated to proof on the balance of probabilities that she would have done so. There was no error in that approach.²⁶

Key takeaways
The key takeaways from this judgment for practitioners is that in proceedings involving an alleged failure to diagnose, it is imperative to identify the appropriate cause of action, inclusive of the relevant cause of harm, and to lead relevant and probative evidence in order to establish the required elements.

Footnotes

¹ Williams v Fraser [2022] NSWCA 200; BC202210748.

² See Williams v Fraser [2021] NSWSC 416; BC202104058.

³ Supreme Court Act 1970 (NSW) s 75A(5).

⁴ Ibid s 75A(6)(b), (10).

⁵ Williams v Fraser [2022] (n 1) [10) (Simpson AJA).

⁶ Williams v Fraser [2022] (n 1) [1] (Macfarlan JA).

⁷ Williams v Fraser [2022] (n 1) [7] (Gleeson JA).

⁸ Ibid [48] (Simpson AJA); Civil Liability Act 2002 (NSW) s 5D(1)(a).

⁹ Williams v Fraser [2022] (n 1) [48] (Simpson AJA).

¹⁰ Ibid [48] (Simpson AJA).

¹¹ Ibid [48] (Simpson AJA).

¹² Ibid [49] (Simpson AJA).

¹³ Ibid [59] (Simpson AJA).

¹⁴ Ibid [62] (Simpson AJA).

¹⁵ Ibid [63] (Simpson AJA).

¹⁶ s 75A(6)(b), (10).

¹⁷ Ibid [100] (Simpson AJA).

¹⁸ Ibid.

¹⁹ Ibid.

²⁰ Civil Liability Act 2002 (NSW) s 5D(1)(a).

²¹ Williams v Fraser [2022] (n 1) [102] (Simpson AJA).

²² Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; 92 ALR 545; BC9002926.

²³ Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; 120 ALR 16; BC9404621.

²⁴ Tabet v Gett (2010) 240 CLR 537; 265 ALR 227; [2010] HCA 12; BC201002304.

²⁵ Williams v Fraser [2022] (n 1) [125] (Simpson AJA).

²⁶ Williams v Fraser [2022] (n 1) [131] (Simpson AJA).

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