District Court New South Wales Medium Neutral Citation: Old v Miniter [2020] NSWDC 401 Hearing dates: 28, 29, 30, 31 October; 25, 28 November 2019; 6 February, 3 April, 7 July 2020 Date of orders: 31 July 2020 Decision date: 31 July 2020 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Verdict and judgment for the defendant; 2. I will hear the parties on the appropriate order for costs; 3. The exhibits may be returned; 4. Liberty to apply on 7 days' notice if further or other orders are required. Catchwords: TORTS – negligence – medical treatment – orthopaedic surgery – intra-operative decision not to remove indwelling elements of redundant ankle fixation hardware due to presence of osteomyelitis infection – failure to arrange for removal at a later time after treatment for osteomyelitis – finding of breach of duty of care – plaintiff developed further osteomyelitis infection 7 years later – failure of plaintiff to establish a causal connection between that subsequent osteomyelitis and the earlier breach of duty of care owed; PRACTICE & PROCEDURE – lex loci delicti – application of the civil liability law of the ACT – Civil Liability Wrongs Act 2002 (ACT) Legislation Cited: Australian Consumer Law, s 60 Civil Law (Wrongs) Act 2002 (ACT), s 42, s 43, s 44, s 45, s 46 Civil Liability Act 2002 (NSW), Pt 1A, s 5B, s 5O, s 15, s 16, Civil Procedure Act 2005 (NSW), s 98 Evidence Act 1995 (NSW), s 56 Evidence Act 2011 (ACT), s 56 Limitation Act 1969 (NSW), s 50C Limitation Act 1985 (ACT), 16B UCPR r 31.27(1)(c) and Sch 7 cl 3(e) Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48 Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45 Amaca Pty Ltd v Ellis [2010] HCA 5 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Browne v Dunn (1893) 6 R 67 Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 Chappel v Hart [1998] HCA 55; 195 CLR 232 Commissioner of Police v Rea [2008] NSWCA 199 Elayoubi v Zipser [2008] NSWCA 335 Glen v Sullivan [2015] NSWCA 191 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 Griffiths v Kerkemeyer [1977] HCA 45 Indigo Mist Pty Limited v Palmer [2012] NSWCA 239 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 Naxakis v Western General Hospital (1999) 197 CLR 162; [1999] HCA 22 Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1; [2015] NSWCA 90 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18 Seltsam Pty Ltd v Guinness [2000] NSWCA 29; (2000) 49 NSWLR 262 Shaw v Thomas [2010] NSWCA 169 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320 Vaccaro v MLC Limited [2016] NSWDC 85 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 Waverley Council v Ferreira [2005] NSWCA 418 Whisprun v Dixon [2003] HCA 48; 200 ALR 447 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Texts Cited: Dorland Illustrated Medical Dictionary, 29th Ed, 2000, WB Saunders & Co Stedman's Medical Dictionary, 26th Ed, 1995, Williams and Wilkinson Category: Principal judgment Parties: Brian Old (Plaintiff) Associate Professor Miniter (Defendant) Representation: Counsel: Mr A Campbell with Ms K Kumar (Plaintiff) Ms A Horvath (Defendant) Solicitors: Gerard Malouf & Partners (Plaintiff) Makinson d'Apice Lawyers (Defendant) File Number(s): 2018/273550 Publication restriction: None Judgment Table of Contents Nature of case [1] Factual background [2] – [36] Focal point of claim by the plaintiff [37] Pivotal determinative questions [38] – [41] Particularisation on behalf of the plaintiff [42] – [48] Applicable law [49] – [53] Procedural default by the parties [54] – [57] Issues [58] Evidence overview [59] – [65] References in oral evidence to relevant dates of treatment [66] Ankle stabilisation apparatus [67] – [70] Credibility and reliability of testimony [71] – [77] Consultation dates not in dispute [78] – [80] Review of factual evidence on liability and causation issues [81] – [168] Survey of clinical records of surgical treatment [83] – [84] Survey of plaintiff's evidence [85] – [124] Survey of Dr Miniter's evidence [125] – [168] Survey of expert evidence [169] – [260] Professor Robin Higgs – First report, 3 December 2018 [170] – [172] Professor Michael Guinness – Report, undated [173] – [177] Professor Martin Sullivan – Report, 16 May 2019 [178] Professor Phillip Braslins – Report, 29 April 2019 [179] Joint report by Professor Higgs and Professor Sullivan [180] – [187] Oral evidence of Professor Higgs and Professor Sullivan [188] – [222] Joint report by Professor Guinness and Professor Braslins [223] – [227] Oral evidence of Professor Guinness and Professor Braslins [228] – [260] Issue 1 – Findings on relevant matters of fact [261] – [317] Issue 2 – The pleaded limitation defence [318] – [322] Issue 3 – The relevant risk of harm [323] – [331] Issue 4 – The duty of care owed and its scope and content [332] – [349] Issue 5 – Preferred expert evidence on breach of duty of care [350] – [365] Issue 6 – Alleged negligence [366] – [427] Particulars of negligence as pleaded [368] – [370] Defendant's complaint concerning plaintiff's alternative case [371] – [386] Legislation [387] – [389] General consideration of the claim of negligence [390] – [392] Consideration of s 43(1) of the CLWA [393] – [414] Consideration of s 43(2) of the CLWA [415] – [422] Consideration of s 44 of the CLWA [423] – [426] Conclusion on breach of duty of care [427] Issue 7 – Consideration of expert evidence on causation [428] – [447] Issue 8 – Causation of harm [448] – [498] Legislation [450] – [451] Background considerations to causation analysis [452] – [462] Requirement of precise identification of the harm incurred [463] – [473] Factual causation – s 45(1)(a) of CLWA [474] – [496] Scope of liability – s 45(1)(b) of CLWA [497] Conclusion on causation [498] Issue 9 – Alleged contributory negligence [499] – [507] Issue 10 – Assessment of damages [508] – [542] Non-economic loss [509] – [521] Past economic loss [522] – [526] Future economic loss [527] – [531] Past domestic assistance [532] – [536] Future domestic assistance [537] – [539] Future treatment expenses [540] – [541] Past out-of-pocket expenses [542] Disposition [543] Costs [544] Orders [545] Nature of case 1. In these proceedings, the plaintiff, Mr Brian Old, claims he received negligent medical treatment from the defendant, Dr Paul Miniter, a specialist orthopaedic surgeon, in connection with the surgical management of an orthopaedic injury sustained on 1 May 2010. Factual background 1. On 1 May 2010, the plaintiff, a resident of New South Wales who was then aged 44 years, fell whilst riding his motorcycle near his home in Jindabyne. Consequently, he sustained a severe right ankle injury. This was ultimately identified as consisting of a displaced fracture of the right fibula and a high ankle sprain involving tearing of the associated medial ligament of that ankle, with disruption and diastasis of the right inferior tibio-fibular syndesmosis, an anatomical structure that comprised the stabilising ligaments of that ankle. 2. On the day of the accident, the plaintiff attended at a local hospital where the seriousness of that injury was not initially appreciated. On 6 May 2010, the plaintiff saw his general practitioner who referred him to see Dr Miniter in Canberra for assessment and treatment of that injury. 3. On 7 May 2010, Dr Miniter saw the plaintiff as his private patient. He arranged for the plaintiff to be admitted to hospital. On 10 May 2010, the plaintiff's injury was treated surgically in the Australian Capital Territory ["ACT"], by means of an open reduction and internal fixation of the fractured fibula. This was achieved by the insertion of a plate and screws. A syndesmosis tightrope stabilising system was also applied by Dr Miniter to reconstruct and hold the ankle joint together under tension. 4. The syndesmosis reconstruction component of that surgery involved a process of laterally drilling two tunnel tracks through the fibula and tibia and associated soft tissues in the right ankle. Two coated and braided high molecular polymer fibre tightropes were then threaded and passed through the ankle via each of those holes. Those tightropes were then anchored, secured and knotted, to maintain them under tension by the use of four anchoring metal discs, called EndoButtons, placed surgically at the medial and the lateral sides of the right ankle, on the tibia and fibula, beneath the skin. 5. The tightrope system used to treat the plaintiff was designed to keep the tibia and fibula in a position that would assist in creating an advantageous environment for the syndesmosis ligaments to heal. 6. A significant feature of relevance to this case concerning that system was that the polymer tightropes used to stabilise the plaintiff's ankle provided what has been described in the expert evidence as a very good or suitable environment for the transmission of infection along the pathway provided by the tunnels that had been drilled through bone, and through which the tightropes had been threaded. 7. Since the plaintiff's operation, an aspect of that system has been redesigned to eliminate the potential for the knots on the sides of the ankle to remain prominent under the skin at the anchor points. Those design changes, which eliminated the need for knots, which could become potential skin irritants, have no practical bearing on this case other than to explain why, on 30 June 2010, Dr Miniter elected to cut those knots on the lateral side, on that account. 8. Dr Miniter carried out all of his surgical procedures on the plaintiff at the National Capital Private Hospital in Canberra, in the ACT. There is no dispute that the initial surgery was appropriate for the injury and that it was properly performed. The plaintiff did not particularise or raise any claim or complaint about the initial surgery carried out by Dr Miniter on 10 May 2010 or in relation to a subsequent surgery he carried out on 30 June 2010. Those operations will be described in further detail in due course. 9. In May and June 2010, the plaintiff unfortunately developed a post-operative infection which led to a diagnosis of osteomyelitis. This was treated with antibiotics and by surgery on 30 June and 4 August 2010. Antibiotic treatment ceased on 3 November 2010, when the treating infectious diseases physician considered that the plaintiff's osteomyelitis had been cured: Exhibit "1", Vol 2, p 551. 10. In Mid-2017, almost seven years later, the plaintiff went on to develop osteomyelitis in his right ankle. He claims that condition ought to have been avoidable if reasonable care had been exercised in the treatment he received from Dr Miniter in the months that followed his initial surgery. That claim is in substantial dispute. 11. Specifically, the plaintiff claims he did not receive reasonable care on 4 August 2010, when Dr Miniter decided to remove only selected components of redundant indwelling fixation devices, following which, he claims he was not informed that remnant components continued to remain in situ. 12. The plaintiff claims that the alleged negligent nature of his treatment on 4 August 2010 only became apparent to and discoverable by him in early August 2017, after he was surgically treated for emergent osteomyelitis. This was shortly after an operation carried out by Dr Miniter on 25 July 2017, when the plaintiff was told that redundant elements of ankle fixation hardware had been removed from his right ankle at that operation. 13. That information perplexed the plaintiff. This was because, beforehand, he had understood, incorrectly as it transpired, that Dr Miniter had removed all redundant hardware components from his right ankle at the operation on 4 August 2010. That misunderstanding may have occurred because an infectious diseases physician who was treating the plaintiff appears to have understandably, but incorrectly, either misapprehended or misinterpreted the terms of Dr Miniter's typed operation note, which was expressed ambiguously, in surgical shorthand. The plaintiff claims that he did not learn that the medial indwelling redundant hardware in his right ankle had previously been left in situ until shortly after the operation carried out by Dr Miniter on 25 July 2017. 14. It is common ground between the parties that redundant indwelling hardware, if not removed, may become a potential nidus for infection that could become difficult to treat, and which could lead to osteomyelitis. Despite the plaintiff having received appropriate post-operative antibiotic treatment in 2010, he went on to develop a recalcitrant osteomyelitis infection which emerged in 2017. The development of that complication was at the time recognised to be a known risk associated with the operative treatment that he had earlier received. 15. The expert evidence discloses that an infection of that kind could occur post-operatively, including much later in time, and if it did, this was not necessarily as a result of negligent treatment. Other known potential causes of such infection included wound contamination by various means, including a failure of aseptic technique or practice in the operating theatre, post-operative blood borne infection, lack of appropriate post-operative rest and limb elevation, and possibly, premature post-operative weight bearing on the affected part causing tissue swelling, delayed healing, and possible wound breakdown. 16. Between June 2010 and August 2010, the plaintiff's post-operative infection was aggressively treated with antibiotic therapy. This included a series of hospital admissions, on 11 June 2010, 30 June 2010, and 4 August 2010. The two latter dates involved surgical management. 17. On 30 June 2010, Dr Miniter wrote-up the plaintiff's medical records to the effect that, on that day he had cut the securing knots on the laterally attached tightropes and removed two adjacent tightrope anchors from the lateral side of the plaintiff's right ankle. He said he did so because the knots and anchors on that side were thought to be the cause of skin irritation. Dr Miniter said he limited the procedure to the removal of only those items and not the fixation plate and screws at that time because intra-operatively, he saw evidence of incomplete fracture healing at that time. 18. This meant that the indwelling fixation plate and screws, which at that time were known to have become infected, and the medial anchoring EndoButtons, which he considered to have not been infected, were thereafter and for the time being, left in place along with some degree of residual tightrope material that appears to have remained attached to the residual redundant medial EndoButtons. 19. Dr Miniter's 30 June 2010 operation was criticised by an orthopaedic expert retained by the plaintiff as having incompletely addressed the need for removal of all redundant hardware. However, insofar as that expert's criticism related to the procedure carried out by Dr Miniter on 30 June 2010, that particular criticism was outside the scope of the plaintiff's particularised case. Furthermore, as will become apparent from the course of analysis, that particular criticism has no causative significance. 20. On 4 August 2010, at an operation carried out on that date, Dr Miniter removed all of the hardware that was located on the lateral side of the plaintiff's right ankle. This related only to the plate and screws. However, in his typed operation note, he wrote up the plaintiff's medical records to include the following statement about the removal operation he had performed: "… TECHNIQUE Lateral approach right ankle Removal of all remaining hardware laterally. Closure after swabs taken and plate and screws sent for MCS closure skin only dressing …" [Exhibit "1", Vol 1, pp 363 – 407.23] 1. Dr Miniter's 4 August 2010 operation note did not record any observations about the appearance of the medial side of the plaintiff's right ankle, and it did not include any descriptive reference to the residual elements of hardware that he had left in situ on that date. A subsequent x-ray of the plaintiff's right ankle taken on 5 August 2010 showed two residual medical EndoButtons remaining in situ on the medial side of the plaintiff's right ankle, but at the time, that finding was not made known to the plaintiff. 2. There was an element of ambiguity within Dr Miniter's 4 August 2010 operation note, which he dismissed as semantics: T125.22. However, Dr Sanajaya Senanayake, a hospital infectious diseases physician who had taken over management of the plaintiff's antibiotic treatment, had apparently and understandably misinterpreted the operation note to mean that all of the indwelling hardware had been removed via a lateral surgical approach, whereas only the elements comprising the fixation plate and screws had been removed in that approach, but not the two residual redundant medial EndoButtons. That misapprehension was apparent in Dr Senanayake's subsequent correspondence to Dr Miniter. Dr Senanayake was not called to give evidence. It was therefore unclear as to whether or not he had ever seen the x-ray taken on 5 August 2010, or a report of that x-ray, which might have redressed his apparent misunderstanding. 3. Dr Miniter explained that at the operation on 4 August 2010, he had made the intra-operative decision that the residual redundant hardware elements remaining on the medial side of the plaintiff's right ankle should be left in situ as that area did not appear to be infected on his external examination of it, and also because he did not want to create a cross-infection of an uninfected area, which could be the result if he opened the skin on the medial side. 4. Neither the tendered clinical records nor Dr Miniter's evidence indicate whether he had made any follow-up arrangement to see the plaintiff again. During the ensuing three months, until 3 November 2010, Dr Senanayake wrote to Dr Miniter on at least three occasions to keep him informed of the progress of treatment of the plaintiff's infection. That correspondence was plainly founded upon Dr Senanayake's belief, apparently based on the content of Dr Miniter's operation note dated 4 August 2010, and his interpretation of that note to the effect that all indwelling hardware had been removed, when that was not so. 5. The plaintiff did not see Dr Miniter again until almost seven years later, on 25 July 2017, at which time he presented for urgent assessment and treatment on referral from his general practitioner, due to an osteomyelitis infection of the right ankle. 6. The plaintiff's liability criticisms of Dr Miniter are in this case necessarily restricted to a focus on the adequacy of Dr Miniter's actions relating to the surgery on 4 August 2010, and thereafter. 7. In the subsequent post-operative period, between August 2010 and 3 November 2010, the care and treatment of the plaintiff's post-operative infection was variously managed by Dr Miniter and the plaintiff's treating general practitioner, in conjunction with hospital infectious diseases specialists. 8. On 18 August 2010, in a letter to Dr Miniter, the hospital infectious diseases specialist, Dr Senanayake, who at the time managed the plaintiff's post-operative antibiotic treatment, indicated to Dr Miniter that he had understood (incorrectly as it transpired), that all of the plaintiff's ankle hardware had been removed on 4 August 2010: Exhibit '1", Vol 2, pp 548 – 549. It appears that Dr Senanayake had not seen either the film or a report of the 5 August 2010 post-operative x-ray which would have revealed the presence of the remaining two medial EndoButtons. Those events, as described, are not intended to be taken to be a criticism of Dr Senanayake as the circumstances and physical location of his consultations with the plaintiff are unknown, particularly as to whether he would have had access to that x-ray or a report on that x-ray. 9. The evidence tendered in these proceedings did not disclose whether or not Dr Miniter had taken any steps, either verbally or in writing, to rectify that incorrect understanding on the part of Dr Senanayake. For whatever reason, Dr Miniter's private practice notes were not tendered in evidence in the proceedings so that question was not illuminated in the evidence. 10. When the plaintiff's antibiotic treatment ceased on 3 November 2010, his infection was thought by Dr Senanayake to have been cured. However, the possibility of a future relapse of that infection remained as a possible risk. This was made clear to Dr Miniter by Dr Senanayake, in his 3 November 2010 letter to Dr Miniter: Exhibit '1", Vol 2, p 551. 11. On 3 November 2010, when Dr Senanayake wrote his letter to Dr Miniter about the plaintiff's treatment to that point, it appears from his letter that he was not aware that redundant surgical hardware had been intentionally left in situ on the medial side of the plaintiff's right ankle. That is a matter which has some bearing on the identification of relevant risk of harm in this case. 12. Unfortunately for the plaintiff, in mid-2017, the known and ever-present risk of emergence or recrudescence of infection in his right ankle appears to have materialised, almost seven years after he had been discharged from previous antibiotic treatment and related medical care. In mid-2017, the plaintiff saw Dr Miniter again for treatment of that newly emergent problem. On 25 July 2017, at an exploratory operation, Dr Miniter found that the plaintiff had developed a fulminating and purulent osteomyelitis infection in his right ankle. On that occasion, the remnant medial hardware was removed by Dr Miniter. 13. In his oral evidence, in cross-examination, Dr Miniter referred to a CT scan report dated 19 July 2017 concerning imaging of the plaintiff's right ankle: T136.25 – T137.48. The conclusion of that CT scan report was as follows: "Fibular periosteal reaction, together with widening of the more inferior tibiofibular drill tract are features suspicious of osteomyelitis" [Exhibit "1", Vol 2, pp 565 – 566] 1. In his oral evidence on that matter, Dr Miniter stated that the plaintiff's final presentation was "… let's face it … [it] was basically what I would regard as poor management is (sic) [of his] osteomyelitis": T137.42. In a context where the hospital clinical records relating to the plaintiff were tendered, and where these records had apparently been available to Dr Miniter's solicitors for some considerable time, it is significant to observe that no expert who was called to give evidence in this case gave any evidence to support that criticism as stated by Dr Miniter in his oral evidence. 2. To decide the issues in these proceedings, it is necessary to identify some determinative matters of fact in more detail after surveying the array of factual material. Those facts will be identified in a sequentially structured way when setting out my reasons regarding what will in due course be described as Issue 1 commencing at paragraph [261] below. This can only be achieved after a meticulous review of the evidence of all the factual and expert witnesses, and a similar review of all relevant documents that touch upon those facts. The extent and length of these reasons is necessarily commensurate with that approach. Focal point of claim by the plaintiff 1. In essence, the plaintiff claims that his osteomyelitis was caused, or materially contributed to, by the alleged negligent failure of Dr Miniter to remove what had become redundant residual indwelling fixation components at the operation performed by him on 4 August 2010, when at that time, those components no longer continued to serve any therapeutic purpose. Dr Miniter disputes the plaintiff's claims and denies that he had been negligent in any way. Pivotal determinative questions 1. On a broad overview of the evidence and arguments in support of the case as particularised by the plaintiff, and having regard to the evidence and arguments against that case, I consider that the outcome of these proceedings stands to be determined by the answer to two pivotal questions. 2. The first question is whether or not Dr Miniter's decision not to remove residual redundant hardware components at an operation on 4 August 2010 was consistent with the provision of reasonable medical care by him at that time. 3. The second question is whether the plaintiff is able to satisfactorily prove the causation question of whether or not the osteomyelitis that was found at his last operation on 25 July 2017, could have been guarded against, if not avoided, if the residual redundant elements of hardware had been removed earlier, on 4 August 2010, in the exercise of reasonable and due skill and care. 4. That said, there is a more extensive and complex range of underpinning issues that call for determination in this case. Those issues are identified at paragraph [58] below after identifying some procedural matters arising out of the particulars and the applicable law by which the proceedings are governed. Particularisation on behalf of the plaintiff 1. The particulars of negligence that the solicitor for the plaintiff has pleaded in this case were narrowly confined to an alleged failure on the part of Dr Miniter, on 4 August 2010, or thereafter, to remove all infected hardware including sutures and EndoButtons, and an alleged related failure to adequately describe the surgery performed on that date so as to record the fact that residual sutures and anchor buttons had been left to remain in situ. 2. Those particulars necessarily constrained the approach taken by counsel appearing for the plaintiff. It transpired that he was briefed by the plaintiff's solicitor only three days before the trial date in this complex case. 3. On the third day of the trial, counsel for the defendant objected to an expansive expert commentary that was thought to have emerged on a particular point concerning the descriptive adequacy of operative findings recorded in Dr Miniter's operation notes. The concern was that counsel for the plaintiff was attempting to anchor alleged operative failures on Dr Miniter's part to an earlier and hitherto unparticularised date, namely 30 June 2010: T165.24 – T171.18. 4. Whilst it was noted, at T167.36, that the origin of that problem was not the fault of counsel for the plaintiff, the state of the particularisation of the plaintiff's case, both in the pleadings and in the answers to requested particulars, was nevertheless disquieting: T169.26. 5. In those circumstances, counsel for the plaintiff was afforded a short adjournment to take an opportunity to consider the position so instructions could be obtained on the preferred course to be taken, following which, no application was made to amend the particulars: T169.46 – T171.17. The case therefore proceeded as was originally pleaded. 6. On the fourth day of the trial, uncontested evidence was given by both infectious diseases experts to the effect that the four infective organisms grown from ankle swabs taken at the plaintiff's final operation on 25 July 2017, were probably introduced at the same time, that is, at the operation on 10 May 2010. This was thought by those experts to be due to a breakdown of aseptic technique at that operation, which the experts said could occur for multi-factorial reasons, not necessarily the fault of the surgeon. That evidence was given in the context of a hindsight analysis that was permissible in a causation analysis: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124]. 7. That evidence poses but one of a number of potential causation difficulties that the plaintiff must overcome in order to succeed in this case. The plaintiff did not seek to make a case against the hospital at which the 10 May 2010 operation took place. Applicable law 1. During the course of the hearing it became apparent that, in formulating their respective positions in the litigation, the legal advisors for both the plaintiff and Dr Miniter had incorrectly structured their expert evidence in the mistaken belief that the provisions of the Civil Liability Act 2002 (NSW) ("CL Act") governed the proceedings, when as a matter of law, that was plainly not so. 2. After that error was drawn to the attention of the parties (T173.50 – T174.1), they acknowledged that they were required to restructure their approach to the issues in dispute. This was because the proceedings are governed by the lex loci delicti, which in this case, is the substantive law comprising the Civil Law (Wrongs) Act 2002 (ACT) ["CLWA"]; John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, at [100]. Given the stage the evidence had reached at that point, a practical course was taken in the further running of the case in that neither party sought to introduce fresh or amended expert reports to refocus on the newly confined issues. 3. At this point it is relevant to observe that the CLWA contains some materially different provisions when compared to the provisions within Pt 1A of the CL Act (NSW). Foremost amongst those differences, first, is that the CLWA has no equivalent provision of a sheltering defence to professional negligence proceedings as may be afforded by s 5O of the CL Act (NSW) where that latter Act might apply, and secondly, damages for non-economic loss must be assessed on common law principles rather than on the basis of a sliding table of percentage impairment in comparison to a most extreme case, as provided by s 16 of the CL Act (NSW). 4. Therefore, because of the first of those differences concerning the determination of the liability issues, aspects of the expert evidence that formerly influenced the approach taken by the legal representatives of both parties on the issue of what might have constituted competent peer professional practice in Australia, within the meaning of s 5O of the CL Act, were no longer of determinative relevance to the proceedings, contrary to what had been initially assumed by the legal representatives of the parties. 5. The parties then proceeded to reformulate their respective approaches and arguments in accordance with the identified practical course. The cost consequences of those circumstances are a matter to be considered by a Costs Assessor in due course. Procedural default by the parties 1. On 4 June 2019, a pre-trial interlocutory order was made by the Judicial Registrar requiring that the parties participate in an informal settlement conference, or a mediation, to be held by 30 September 2019. 2. Astonishingly, for a case of this kind, not only was there a failure of compliance with that order, but the parties failed to bring the fact of such non-compliance to the attention of either the List Judge or the Judicial Registrar in accordance with the Court's Standard Orders and prevailing practice, so that appropriate remedial orders could have been considered. 3. After that default was critically examined in the course of the hearing, the parties took up the suggestion that an intra-trial mediation should take place, following which, the proceedings remained unresolved. 4. No adverse inferences arise from the fact that mediation did not result in a resolution of the proceedings. Affidavit evidence was required to explain the circumstances in which that procedural default occurred. The costs consequences of those circumstances were reserved to be revisited after the substantive issues have been determined, if that course became necessary. Issues 1. The pivotal issues have already been identified at paragraphs [38] to [41] above. Apart from the related matters of credibility and reliability of testimony, on my consideration of the pleadings, the evidence, the submissions of the parties, the substantive issues that underpin and which will determine those pivotal issues, are identified as follows: 1. Findings on relevant factual matters are required as such findings will be influential on the assessment of the expert evidence. My findings on those matters appear in paragraphs [261] to [317] of these reasons; 2. The determination of the limitation question of whether the plaintiff is entitled to maintain these proceedings in light of the defendant's filed defence to the effect that, in answer to the whole of the plaintiff's statement of claim, the claimed cause of action is statute barred pursuant to s 50C of the Limitation Act 1969 (NSW). My findings on this issue appear in paragraphs [318] to [322] of these reasons; 3. Identification of the relevant risk of harm within the meaning of s 43 of the CLWA. My findings on this issue appear in paragraphs [323] to [331] of these reasons; 4. The scope and content of the duty of care owed by the defendant. My findings on this issue appear in paragraphs [332] to [349] of these reasons; 5. Resolution of critical aspects of difference in the array of expert orthopaedic opinions on the question of whether or not the defendant has breached the duty of care he owed to the plaintiff. My findings on this issue appear in paragraphs [350] to [365] of these reasons; 6. Whether, according to the analysis required by s 43 and s 44 of the CLWA, the defendant should be found to have relevantly breached the duty of care that he owed to the plaintiff. My findings on this issue appear in paragraphs [366] to [427] of these reasons; 7. Identification of the key conclusions to be drawn from within the array of the expert opinions of the infectious diseases physicians on the question of whether any established breach of the duty of care owed by the defendant was a relevant cause of the harm claimed to have been suffered by the plaintiff. My findings on this issue appear in paragraphs [428] to [447] of these reasons; 8. Whether, in terms of s 45 of the CLWA, any established breach of the duty of care owed by the defendant was the relevant cause of the plaintiff's claimed harm. My findings on this issue appear in paragraphs [448] to [498] of these reasons; 9. Whether, as claimed by the defendant, any damages awardable to the plaintiff should be reduced on account of his own alleged contributory negligence. My findings on this issue appear in paragraphs [499] to [507] of these reasons; 10. The assessment of the plaintiff's damages in respect of non-economic loss; past economic loss; future loss of earning capacity; future treatment expenses; and past out-of-pocket expenses. My findings on those matters appear in paragraphs [508] to [542] of these reasons. Evidence overview 1. The plaintiff was the only witness called to give oral evidence on factual matters in his case. Dr Miniter was the only witness called to give oral evidence of a factual nature in the case for the defendant. 2. The parties relied upon the opinions of medical experts from within the specialist medical disciplines of orthopaedic surgery and infectious diseases. 3. Prior to the hearing, those separate sets of experts met their respective counterparts and joint reports were then prepared concerning the results of those meetings. In those joint reports the experts set out the matters upon which they agreed, and they also set out their reasons for disagreement on the matters on which they remained in disagreement. At the hearing, the opinions of those two sets of experts were explored in the course of their oral evidence, in which experts of like qualification gave their evidence at the same time. That evidence has assisted the task of determining disputed medical issues. 4. The respective orthopaedic experts were Professor Robin Higgs, qualified by the plaintiff, and Professor Martin Sullivan, qualified by the defendant. The respective infectious diseases experts were Professor Michael Guinness, qualified by the plaintiff, and Professor Phillip Braslins, qualified by the defendant. The evidence of those experts will be examined and evaluated in detail in the course of these reasons. 5. The plaintiff also relied upon documentary evidence, including the voluminous clinical records that were created following the series of his hospital admissions. Aspects of the detail of those records will be referred to where it becomes relevant to do so. 6. In this case, unlike cases where the law of NSW must be applied, where the sheltering provision of s 5O of the CL Act (NSW) may provide an available defence to a claim of professional negligence, the opinions of experts based on what constituted accepted peer professional practice in Australia, whilst relevant to the provision of some general guidance to assist the task of making appropriate findings, are not statutorily determinative of the issues concerning the content and scope of the duty of care owed, and whether or not there was a relevant breach of that duty. 7. The acceptability of expert opinions in this case must be dependent upon the facts and the logical reasoning upon which those opinions are based. Such expert opinions provide guidance to the process of making findings, and they are not necessarily determinative of the question of whether or not reasonable care had been provided by Dr Miniter in the circumstances: s 42 of the CLWA. References in oral evidence to relevant dates of treatment 1. The transcript of the questioning of the witnesses on factual matters reveals many instances that involved imprecise date references, which variously omitted the day of the month or the year of occurrence in which a relevant event was being discussed. That level of imprecision and the concomitant minimalist attention to detail has added an unhelpful and needless burden to the required analysis. At places of important reference in the citation of evidence on factual matters, I have endeavoured to interpolate complete date references so that the dates on which various events occurred can be more clearly followed. Ankle stabilisation apparatus 1. A short video demonstration was played in opening addresses showing an animated sequence of the method of deployment of a similar but not identical tightrope device to the two such devices that were used to treat the plaintiff on 10 May 2010: MFI "1": T6.15 – T7.35. 2. Absent a useful demonstrative diagram being tendered in evidence it is appropriate to set out some further descriptive detail of the syndesmotic stabilisation system used. 3. The syndesmosis fixation hardware equipment used in the plaintiff's treatment was variously described in the evidence as including metal discs, anchors, or EndoButtons, connected by fibrous braided polymer tightrope sutures, at times mis-described as wires, and also variously referred to in the evidence as cable, thread, and rope. 4. Two sutures or tightropes were separately inserted through two tunnels or tracts drilled through the bones of the plaintiff's right ankle to allow passage of those sutures. Two anchor discs or EndoButtons were then located on bone, on each of the lateral and medial sides of the right ankle, to secure and tension those sutures on either side of the ankle to hold the ankle ligaments in place whilst healing took place. Credibility and reliability of testimony 1. I consider that all the witnesses who gave evidence on historical matters of fact did so to the best of their respective recollections. No direct credit challenges were made to either the evidence of the plaintiff, Dr Miniter, or to their respective expert witnesses. 2. In final submissions made on behalf of Dr Miniter, it was suggested that some cited comments made by Professor Higgs in his oral evidence cast some doubt upon his independence: Defendant's written submissions, par 52. In my view, that submission was overstated as to its basis, and I considered that it was unfounded, particularly as that criticism was not specifically put to him for comment: Browne v Dunn (1893) 6 R 67. I consider that the reasons advanced for that submission should not be accepted because the matters upon which that submission was dependant were peripheral, and Professor Higgs' process of reasoning for his opinions was adequately exposed for analysis, and such views were reasonably open on the evidence. 3. In his oral evidence, the plaintiff fairly acknowledged that he could not precisely recall every detail of his multiple hospital admissions. He deferred to the content of the clinical records regarding such matters: T46.21 – T46.27. Similarly, he acknowledged that he could not recall, with accuracy, the details of what had been said to him in clinical consultations that had taken place with Dr Miniter at hospital, almost nine years before the hearing: T47.2 – T47.13. In that regard, he also mis-recalled the date of his accident as being 7 May 2010, instead of it being 1 May 2010. 4. Dr Miniter said he had a reasonable recollection of his treatment of the plaintiff but he also relied upon the content of his clinical records. He had referred to those records on the morning he gave his evidence. It is reasonable to assume that process served to refresh his memory on some of the detailed content of his evidence. Those records were not tendered in evidence. Understandably, he could not recall the verbatim content of the key discussions he had with the infectious diseases team about the plaintiff's care, in the period between 2010 and 2017 and in the subsequent period leading up to the hearing in 2019. 5. The material elements of difference that emerged within the respective testimonies of the expert witnesses must be assessed according to the underlying facts and the reasoning that underpinned their respective opinions: UCPR r 31.27(1)(c) and Sch 7 cl 3(e). That determination must proceed by evaluative reasons for conclusions arrived at on the balance of probabilities. 6. The parties declined to approach the analysis of the expert evidence on the basis that the respective joint reports of the two sets of experts, which followed their conclave meetings, represented the essential opinions requiring analysis. 7. Instead, those reports were required to be read in conjunction with the earlier reports of the respective experts. That approach has necessarily led to a lengthier analysis of the detail of the expert evidence, and a similar analysis of the underlying factual evidence than otherwise might have been required before reaching a distillation of the material facts for the purpose of deciding the issues that call for decision. Those material facts are identified in the consideration of Issue 1, which commences at paragraph [261] below. Consultation dates not in dispute 1. In light of the plaintiff's acknowledgment that he has an imprecise recall of some events, for convenient reference, at this point it is appropriate to identify the undisputed dates of clinical contact between the plaintiff and Dr Miniter in 2010, that is, before the plaintiff was discharged from his care in that year. 2. Dr Miniter acknowledged that in 2010 the plaintiff was his patient on a total of seven occasions, on 7 May 2010, 10 May 2010, 20 May 2010, 12 June 2010, 17 June 2010, 30 June 2010 and 4 August 2010: Defence, paragraph 4(a). In 2017, Dr Miniter had one consultation with the plaintiff, namely on 25 July 2017, when he operated on the plaintiff for the last time: Defence, paragraphs 4(e) and 5(c)(iii). 3. The factual chronology that emerged from within the plaintiff's evidence-in-chief concerning his treatment by Dr Miniter was understandably led from him without objection given that it was substantially based on the chronology prepared on his behalf: Exhibit "A". In these reasons, for accuracy, I propose to refer to the relevant dates and events that are anchored in the contemporaneous historical clinical records. Review of factual evidence on liability and causation issues 1. Before referring to the factual evidence as was given by the respective parties, and before referring to the evidence of the respective experts concerning the liability and causation issues that arise for determination in this case, it is necessary to review the framework of that evidence in the form of the relevant clinical records, as supplemented by the content of the oral evidence of both the plaintiff and Dr Miniter. 2. That framework, and the subsequent review of the expert evidence commences from paragraph [83] below. It continues until the commencement of my reasons for decision that starts with the consideration of Issue 1 at paragraph [261] below. The extensive detail of that evidence required marshalling for consideration in a logical factual sequence before the distillation of relevant findings of fact could be achieved. Survey of clinical records of surgical treatment 1. The paragraphs that follow set out in chronological sequence the clinical events that became evident from a reading of the tendered clinical records, but also annotated in some places with additional matters of relevance that were explored in the oral evidence of both the plaintiff and Dr Miniter: Pre-operative consultation with Dr Miniter – 7 May 2010 1. On 7 May 2010, Dr Miniter reviewed the plaintiff at his clinic in Canberra and advised him he needed surgery. At that time Dr Miniter explained to the plaintiff the significance of his injury, the risks and benefits of the surgical treatment he proposed, and he satisfied himself the plaintiff had a full understanding of those matters: Exhibit "1", Vol 2, p 540; First hospital admission – first operation by Dr Miniter – 10 May 2010 1. On 10 May 2010, Dr Miniter's initial operation record shows that he treated the plaintiff for a displaced fracture of the right lateral malleolus, a complete disruption of the syndesmosis, with a loose detached osseous body in the ankle joint arising from a recent disruption of the distal talo-navicular eminence. Those findings also noted there was CT evidence of a fracture of the anterior calcaneal process. The operative technique was identified as a lateral approach to the right ankle, reduction and fixation with plate and screws, these comprising two AO screws and 3 locking screws, stabilisation with tightrope anchors and re-establishment of the medial space. An arthroscopy was performed which showed a 6mm diameter loose osseous fragment freshly detached from the anterior tibial plafond (ceiling). The surgical wound was closed in layers, with prolene to the skin, and dressings and plasters were applied. Post-operative orders were for hourly observations of the right foot, gentle elevation, non-weight bearing, and for discharge home the following day with the anticoagulant clexane: Exhibit "1", Vol 1, p 262; 2. On 20 May 2010, Dr Miniter wrote to the plaintiff's treating general practitioner advising of the operative findings on 10 May 2010, and the surgical technique he applied at the time. At that time, he also foreshadowed seeing the plaintiff again soon: Exhibit "1", Vol 1, pp 237 – 238; Exhibit "1", Vol 2, pp 541 – 542; Second hospital admission – treatment of infection – 11 to 13 June 2010 1. Between 11 and 13 June 2010, the plaintiff was an in-patient at the National Capital Private Hospital under the care of Dr Miniter. He was there for treatment of his infected surgical wound to his right ankle, five weeks post-operatively, for daily dressing changes. On admission the plaintiff was mobilising on crutches and using a protective blackboot. The discharge instructions were for him to wear the blackboot at all times, to rest and elevate his right foot, and to present to Dr Miniter for follow-up on the following Thursday, 17 June 2010: Exhibit "1", Vol 1, pp 284 – 304; 2. On 12 June 2010, the hospital clinical progress notes contain an entry to the effect that Dr Miniter saw the plaintiff and approved the plaintiff being discharged home on the following day: Exhibit "1", Vol 1, p 295; 3. On 17 June 2010, in a letter to the plaintiff's general practitioner, Dr Miniter observed that the small pressure area that had been evident on the interior and lateral portion of the plaintiff's right foot, which was described as resolving well, was described as probably related to the swelling which occurred whilst the plaintiff was immobilising with the plaster on his right lower limb: Exhibit "1", Vol 1, p 239; 4. Significantly, in his 17 June 2010 letter to the plaintiff's general practitioner, Dr Miniter did not suggest that the plaintiff had been weight bearing on that foot, either inappropriately, or contrary to advice: Exhibit "1", Vol 1, p 239; Exhibit "1", Vol 2, p 543; Third hospital admission – second operation by Dr Miniter – 30 June 2010 1. On 30 June 2010, in Dr Miniter's operation record, reconstructing for spelling errors, he identified the operative technique used on this occasion as a re-opening of the plaintiff's previous surgical wound. The operation note recorded a finding of sepsis or infection, which was queried as to whether it was deep. On visual inspection it was noted that there was no appearance of deep fluid or obvious involvement of infection around the hardware plate. In the subsequent expert evidence, the perceived technical difference between a severe infection and a deep infection took on some apparent significance. However, having regard to Dr Miniter's evidence of having told the plaintiff that the infection should be assumed to have been deep (T102.30), the apparent difference in descriptions seems to have no significance. At that operation, both lateral tightrope knots were cut and the related lateral EndoButton anchors were removed. Tissue swabs and specimens were sent for pathology examination. The detail of how those swabs were taken and how the sampling occurred, was not described. The surgical wound was then lavaged, the skin was then closed after removal of all remnant sutures from the previous dressing. IV antibiotics were ordered to be commenced, hourly observations of the right foot were ordered, and a PICC line was scheduled to be inserted the following morning: Exhibit "1", Vol 1, p 240; 2. It appears from the evidence (Exhibit "E"), that following the operation on 30 June 2010, Dr Miniter did not write to the plaintiff's referring general practitioner to outline what had been done surgically in that operation; 3. Between 30 June and 7 July 2010, the plaintiff remained as an in-patient at the National Capital Private Hospital under the care of Dr Miniter and Dr Peter Collignon, an infectious diseases specialist, for treatment comprising open drainage of his right ankle wound on 30 June 2010 in view of the sepsis found in the right ankle at the operation on 30 June 2010. The plaintiff remained in hospital for observations, dressing changes and antibiotic therapy. In that time, on 2 July 2010, Dr Collignon was unclear if the infection involved bone and hardware or just soft tissues. He considered that a Pseudomonas organism was growing. On 4 July 2010 Pseudomonas and Staphylococcus Aureus growths were isolated and the antibiotic therapy then changed. On 7 July 2010, the plaintiff was discharged on crutches into the care of his general practitioner with a PICC line in place and instructions for antibiotic therapy and dressing changes every second day or earlier if needed. An infectious diseases consultation was scheduled for one month later: Exhibit "1", Vol 1, pp 305 – 361; 4. On 2 July 2010, the hospital clinical progress notes record that at 11.30am on that day, Dr Miniter saw the plaintiff in hospital and indicated his approval for the plaintiff to go home with a community nurse, and the treating infectious diseases physician approved of that course: Exhibit "1", Vol 1, p 335; 5. On 5 July 2010, the hospital clinical progress notes record that the plaintiff was seen in hospital by Dr Miniter, who ordered continuation of antibiotics and dressing changes: Exhibit "1", Vol 1, p 314; Fourth hospital admission – third operation by Dr Miniter – 4 August 2010 1. Between 4 August and 13 August 2010, the plaintiff was an in-patient for surgical treatment at the National Capital Private Hospital for removal of the indwelling AO plate and screws and wound debridement: Exhibit "1", Vol 1, pp 363 – 407.23. In Dr Miniter's operation record for 4 August 2010 he identified the operative technique on this occasion as being a lateral approach to the right ankle to remove all remaining hardware laterally on the right ankle. The operative findings were a united fracture of the right ankle, without intra-operative evidence of deep sepsis. Wound healing was noted to have been much improved since recommencement of the planned antibiotic treatment. Deep swabs were taken, and the removed screws were sent for MCS. The swabbing locations and the swabbing technique were not described in detail. At the conclusion of the procedure, only the skin of that wound was closed, dressings were applied, and post-operative orders were given for the plaintiff to be discharged home for bed rest, analgesia and antibiotic therapy. The discharge assessment stated "Staph infection R ankle" and "weeping": Exhibit "1", Vol 1, pp 370 – 371; 2. On 4 August 2010, the hospital clinical progress notes record that Dr Miniter saw the plaintiff in hospital and indicated he should remain in hospital but that he could be discharged after a review that was to take place on the following Saturday: Exhibit "1", Vol 1, p 407.3; 3. On 5 August 2010, the hospital clinical progress notes record that Dr Miniter saw the plaintiff in hospital at about 14:55 hours and reviewed an x-ray, following which he ordered continued bed rest for that day and the next day: Exhibit "1", Vol 1, p 373 and p 407.3. The hospital notes do not contain any commentary or interpretation from Dr Miniter in relation to what was seen on that x-ray, which, indisputably, must have revealed the presence of the two retained medial EndoButtons; 4. On 7 August 2010, the hospital clinical progress notes record that at about 13:00 hours, the plaintiff was seen in hospital by Dr Miniter, who ordered daily wound dressings, along with a plan for discharge on the following Tuesday, with antibiotics to continue; 5. On 10 August 2010, at about 06:00 hours, the hospital clinical progress notes record that Dr Miniter ordered that the plaintiff be given Jellonet / Kaltostat to be applied to his wound despite the plaintiff stating he had a skin reaction to one of those products: Exhibit "1", Vol 1, p 376 and p 405; 6. On 11 August 2010, at about 10.05 hours, the hospital clinical progress notes record that Dr Miniter saw the plaintiff in hospital and ordered intravenous antibiotic treatment with daily dressing changes, with Kaltostat, gauze and bandaging (but without Jellonet): Exhibit "1", Vol 1, p 405; 7. The hospital records tendered do not make any reference to any follow-up arrangement made for the plaintiff to see Dr Miniter again. In the meantime, another of the hospital's infectious diseases physician, Dr Senanayake, took over the management of the plaintiff's antibiotic treatment. That treatment proceeded upon the apparently incorrect understanding that all redundant hardware had been removed from the plaintiff's right ankle when that was not the case: Exhibit "1", Vol 2, p 548. No correspondence was tendered to show that Dr Miniter had made any follow-up arrangements with the plaintiff's treating general practitioner for the removal of the residual redundant hardware that had been left in situ on 4 August 2010; 8. There is no evidence from within the materials tendered to show that Dr Miniter sent a copy of his 4 August 2010 operation note to either the plaintiff or the plaintiff's treating general practitioner. Similarly, there is no evidence to show that he wrote to the plaintiff's general practitioner drawing attention to the fact that he had left the two residual elements of redundant hardware in situ on the medial side of the plaintiff's right ankle; Unrelated ENT consultation – 23 November 2011 1. On 23 November 2011, the plaintiff had an otolaryngeal consultation with Dr Marlene Soma, who recorded that he had a longstanding deviated nasal septum from sporting injuries some years earlier. She noted his nasal turbinates were mildly congested: Exhibit "1", Vol 2, p 552. Nothing of significance turned on that evidence; Fifth hospital admission – unrelated surgery – 11 April 2014 1. On 11 April 2014, the plaintiff underwent a right shoulder arthroscopy and rotator cuff repair and biceps tendinosis procedure at an unstated hospital in Southern NSW: Exhibit "1", Vol 2, p 555. That surgery involved implanted hardware, as was observed in the expert evidence; Sixth hospital admission – unrelated surgery – 26 May 2014 1. On 26 May 2014, the plaintiff underwent an arthroscopy procedure on his right knee at Cooma Hospital for treatment of a locked knee syndrome: Exhibit "1", Vol 2, pp 799 – 845; Seventh hospital admission – unrelated surgery – 18 February 2016 1. Between 18 and 20 February 2016 the plaintiff was an in-patient at The National Capital Private Hospital for the unrelated procedure of right orchidectomy and left vasectomy, this being treatment of a testicular tumour: Exhibit "1", Vol 1, pp 407.24 – 407.71; Exhibit "1", Vol 1, pp 407.57 – 407.58. That tumour appears to have had no lasting consequences in terms of the issues raised in this case. The discharge summary for that hospitalisation noted that post-operative steri-strips were to be left in situ until they naturally fell off and a note was made to monitor for infection pending follow-up with the operating surgeon in 4 weeks' time: Exhibit "1", Vol 1, p 407.26. Whilst the note on discharge referred to "dressing intact with old ooze", no concerns about the existence of an infection were noted at that time: Exhibit "1", Vol 1, p 407.39; Eighth hospital admission – fourth operation by Dr Miniter – 25 July 2017 1. Between 25 July and 1 August 2017, the plaintiff was an in-patient at The National Capital Private Hospital, having been transferred there from Calvary Hospital by Dr Miniter: Exhibit "1", Vol 1, pp 407.73 – 407.154. On 25 July 2017, in Dr Miniter's operation record, he identified the operative procedure on that occasion as being debridement/removal of fixation/excision of sinus. The operative technique was identified as an excision of a sinus tract on the lateral aspect of the right ankle. Suture material in the base of the tract was also stated to have been removed after the excision of the EndoButton on the medial aspect of the tibia, after it was located under image intensification. The sinus tract, which is described elsewhere as traversing a distance, presumably some centimetres, through bones and soft tissues, was stated to have been cleaned, swabs and suture material was sent to pathology, wash-out then occurred, and the wound was closed "easy" with prolene. The surgical findings were stated as being osteomyelitis, plus retained foreign material in the right ankle, and EndoButton tightrope fixation. Post-operative orders were for the plaintiff to continue with IV antibiotics, to rest, to await swab results, and for the PICC line to continue in place: Exhibit "1", Vol 1, p 242; p 407.132; 2. Following the operation performed on 25 July 2017, on 4 August 2017, Dr Miniter faxed a copy of his 25 July 2017 operation note to the plaintiff's treating general practitioner, under cover of a fax cover sheet, without further explanation: Exhibit "1", Vol 2, pp 587 – 588. That note was in the following terms: "FINDINGS osteomyelitis plus retained foreign material right ankle endobutton/tightrope fixation TECHNIQUE excision of sinus tract lateral aspect right ankle suture material in base > removed after excision of endobutton medial aspect of tibia : isolated with II sinus tract cleared swabs and suture material sent washout prolene : easy wound closure POST-OP ORDERS continue iv antibiotics rest PICC line to continue await swab results" [Exhibit "1", Vol 2, p 588]; 1. As was revealed in Dr Miniter's oral evidence, his operation note describing the removal of that suture material was qualified by some further detail. In his oral evidence he explained that the material he had removed at the base of the sinus comprised the remnants of the fibrous tightrope anchor, which appeared to look like suture material: T119.31. What was left unclear was the length of that remnant material and the depth at which that suture material was located in relation to the lateral surface of the bone where the sinus tract commenced and traversed medially into the depth of the ankle, and its closeness or distance from the internal surface of the medial EndoButton. The varied descriptions in the content of the post-operative note identifying suture material appears to have subsequently influenced the assumptions made by the infectious diseases specialist, Dr Senanayake, who then continued with the management of the plaintiff's treatment for osteomyelitis, as explained below; Clinical notes made by infectious diseases specialist – 26 July 2017 1. On 26 July 2017, in the course of the plaintiff's last hospital stay, Dr Senanayake, who had obviously worked in consultation with Dr Miniter regarding the plaintiff's history and treatment, made an entry in the clinical progress notes on the day after post-debridement surgery, as follows: "Day 1 post debridement Note suture material & an endobutton were discovered intraoperatively → removed & sutures sent for culture" [Exhibit "1", Vol 1, p 407.94]; A reading of the content of that note raises for consideration the possibility that, at least from the perspective of Dr Senanayake, the discovery of the suture material and an EndoButton was for him, a surprising or unexpected event. The implication of that note is that, as a treating clinician, he did not know before 26 July 2017, that redundant hardware had been left in situ in the plaintiff's ankle at a time when he was being treated by the infectious diseases team for recalcitrant infection. That position is consistent with the content of Dr Senanayake's letter to Dr Miniter dated 18 August 2010: Exhibit "1", Vol 2, p 548. It appears that Dr Miniter did not take any steps to correct Dr Senanayake's misapprehension in that regard; 1. In this case, Dr Senanayake's note dated 26 July 2017, appears to have been construed by the plaintiff's legal representatives as indicative of an earlier omission or failure on the part of Dr Miniter to remove the suture material and an EndoButton on 4 August 2010. The words "discovered intraoperatively" were interpreted by the plaintiff's legal representatives to mean discovered unexpectedly. Dr Miniter rejected that proposition robustly when it was drawn to his attention for comment. Instead, he stated that the construction Dr Senanayake had placed on the operation note was simply not correct: T126.45. This issue will also be taken up further in my reasons for decision on whether or not there has been a breach of the duty of care Dr Miniter owed to the plaintiff; 2. On the following day, 27 July 2017, Dr Senanayake made an entry in the clinical notes on his review of the pathology cultures concerning the specimens obtained on 25 July 2017. He considered the result to be odd. An extract of the commencement of that note is as follows: [Exhibit "1", Vol 1, p 407.95] 1. The above note, and the results of the consequential microbiological tests that were initiated at that time, are relevant to the analysis of aspects of the expert opinions provided by the respective infectious diseases physicians on the issue of causation. Survey of plaintiff's evidence 1. It is necessary to say something of the plaintiff's background. Plaintiff's background 1. The plaintiff was aged 44 years at injury, and he was aged 53 years at the hearing. He is a resident of Jindabyne, NSW. He left High School in Year 11. He had completed a four year apprenticeship as a butcher. He has also worked as a labourer. He was also involved in a family laundry and laundromat business that served the hospitality industry in tourist seasons in the Snowy Mountains region between 1996 until August 2019. In August 2019, that business was unfortunately destroyed in a fire. 2. Prior to the events the subject of these proceedings, the plaintiff had been in reasonably good health apart from having had asthma. He has had a number of other injuries and surgeries, none of which had any obvious relevance to this case. Those matters included a fractured lower jaw in 1987, a deviated nasal septum from a sporting injury some years ago, an injury to his right knee and left ankle in 2003, knee surgery in either 2005, 2006 or 2007, left thumb surgery in 2007, and a shoulder fracture in 2007. A series of subsequent unrelated health issues that affected the plaintiff 1. It is convenient to here record that since the surgery carried out by Dr Miniter in 2010, the plaintiff has also had a number of other non-related health issues, injuries and surgeries. These included an unspecified knee injury when he fell from a bicycle on 10 November 2010 (T56.35); a right shoulder injury from a fall from a segway (T58.37); right shoulder surgery in March 2014 (T58.3); an injury to his right knee in 2014 which required arthroscopy to remove torn cartilage (T60.13); removal of a testicular tumour in February 2016; scratches and swelling to both feet in November 2016 from wearing wet boots whilst on an overseas holiday (T63 – T64); and a bruised leg in April 2018 after falling from a bicycle: T79.1. Precipitating event on 1 May 2010 leading to surgery on 10 May 2010 1. On 1 May 2010, following the plaintiff's fall from his motorcycle which has led to this claim, his injury was initially assessed at Cooma Hospital. There, it was apparently assessed as comprising an uncomplicated fracture. The plaintiff entertained some doubts about the validity of that assessment. After consulting his family doctor in Jindabyne, doubts also emerged about the validity of that assessment. Dr Miniter was then contacted by the plaintiff's general practitioner for advice on the appropriate management of the injury. He then promptly saw the plaintiff in Canberra on 7 May 2010. At that time, Dr Miniter assessed him as needing immediate surgery, which was then scheduled for Monday, 10 May 2010. Plaintiff's account of surgery by Dr Miniter on 10 May 2010 – open reduction and internal fixation and the aftermath of that operation 1. Before the surgery on 10 May 2010 was performed, the plaintiff said he was informed of the intended nature of that surgery, and the need for reduction of his fracture using indwelling hardware. He was not familiar with all of the detail of the procedure, and he understood it was to be a reduction and fixation procedure involving the insertion of plates and screws. At the time he had no other knowledge of the technicalities, or the details of any other devices that were used in conjunction with the plate and screws, such as tensioned tightropes and EndoButtons that were also employed in that surgery. He only later learnt of those details in 2017. 2. In May 2010, after spending an initial few days in hospital, the plaintiff was discharged into the care of his general practitioner. At that time he wore a protective cast. 3. Over the ensuing weeks, the plaintiff noticed that the top of his right ankle had become red and swollen in its appearance. He made the same observation concerning the toes of his right foot. He said he also noticed what he considered to be an unpleasant, malodorous smell coming from his right foot. In light of other unchallenged evidence from Dr Miniter (at T101.16 – T101.23), to the effect that there were different types of post-surgical malodour that signified different things, not necessarily infection, without more, no reliable diagnostic conclusions as to an infection or its type can be drawn from that aspect of the plaintiff's description of the odour. 4. On 11 June 2010, the plaintiff presented with the above problems to his general practitioner, who contacted Dr Miniter. The plaintiff was then seen by Dr Miniter on 12 June 2010. Urgent arrangements were then made for the plaintiff to be admitted to The National Capital Private Hospital where he remained under the care of Dr Miniter on intravenous antibiotic treatment, which then continued until 13 June 2010. It is safe to infer that in those circumstances, by then, an infection of the right ankle wound had become evident. 5. On 17 June 2010, the plaintiff consulted Dr Miniter by appointment. This was because at that time, his own observations were that the site of his ankle wound on the right side was open, gaping, red, pus was evident, and the wound was not healing: T24.44 – T25.2. Some of the plaintiff's recollections as to those observations differed to those of Dr Miniter. Nothing seems to turn on those differences as to those matters at that time. The plaintiff denied that in the events leading to that time he had not been resting and elevating his affected leg, and he denied weight bearing on it: T44 – T45. 6. On 28 June 2010, the plaintiff returned to see his general practitioner. At that time he was prescribed further oral antibiotics comprising keflex and flagyl. A wound swab was then taken because at that time the plaintiff's general practitioner had detected an apparent smell of a Pseudomonas infection. Arrangements were then made for the plaintiff to return to see Dr Miniter. Plaintiff's account of Dr Miniter's surgical treatment on 30 June 2010 1. On 30 June 2010, the plaintiff saw Dr Miniter again in Canberra. Dr Miniter indicated that there was a need for a clean-out or wash-out procedure of the wound under general anaesthetic. He then carried out that procedure, following which the plaintiff remained in hospital until 7 July 2010. In those events, the plaintiff was given intravenous antibiotics, first by injection into an arm, and later, via a PICC line. The plaintiff said that at that time, he did not know that some remnants of the indwelling hardware that had been inserted at the operation on 10 May 2010, had not been removed on this occasion: T27.42. 2. The plaintiff's chronology (Exhibit "A") and the operation note dated 30 June 2010 state that two tightrope anchors were removed on this occasion. At that time, other elements of hardware were left in situ. Those elements comprised the lateral plate and screws, and the medial discs of the EndoButtons. The reasons for that material being left to remain in place became a point of contention in this case. 3. At that operation, swabs were taken, and those revealed Pseudomonas Aeruginosa, which was sensitive to ciprofloxacin, and MSSA. At that time the plaintiff was given one week of treatment with IV timentin 3.1gm QID, IV vancomycin and IV gentamicin, followed by oral dicloxacillin, 500mg QID and ciprofloxacin 500mg PO BD: Exhibit "A". 4. On 9 July 2010, following the plaintiff's return to Jindabyne, he saw his general practitioner, who expressed some concern about the state of his ankle wound as it was red, swollen, sore, and it did not appear to be healing. The plaintiff's wound sutures were visibly stressed, and there was some discharge apparent on examination. The plaintiff's general practitioner was then advised by Dr Miniter and by the hospital infectious diseases physician to remove the sutures and to take swabs: Exhibit "A". 5. The plaintiff saw his general practitioner again in Jindabyne on 12 and 14 July 2010 for a review of his ankle. This was because it was not easy for him to travel to Canberra to see Dr Miniter, or the infectious diseases specialist there. On 12 July 2010 the plaintiff's general practitioner thought that the wound had much improved: Exhibit "A". 6. On 14 July 2010, the plaintiff saw his general practitioner again following the results of the recently performed swab tests. The swabs had grown MCS Staphylococcus, which was sensitive to flucloxacillin. The plaintiff was then advised to continue on the prescribed antibiotics for a further two weeks, and then to attend to be reviewed by Dr Miniter: Exhibit "A". Plaintiff's account of Dr Miniter's surgical treatment on 4 August 2010 – surgical lavage and partial removal of hardware 1. On 30 July 2010, the plaintiff again saw Dr Miniter in consultation in Canberra. At that time he signed a consent form for a planned further wash-out procedure to be performed on his right ankle: Exhibit "A". The plaintiff said that in a bedside consultation with Dr Miniter he was told that procedure was to be for the removal of all internal hardware and fixation devices in his right leg and to "clear it all out to help the recovery process" as the antibiotics did not seem to have been working and "the infection was harbouring in the plates and screws and fixation devices" in his leg, so the approach was to "take it all out": T27.1 – T27.20. 2. Dr Miniter denied having told the plaintiff pre-operatively that he intended to remove all hardware at the operation scheduled for 4 August 2010: T123.48 – T124.1. Although Dr Miniter did not clearly recall the words he used at that time, I accept that he remembered the essential content of that conversation. I find it improbable that the plaintiff recalled the conversation in the words he recounted as cited above, especially given his conceded general lack of accurate recall on matters of clinical detail: T46.21 – T46.27; T47.2 – T47.13. 3. On 4 August 2010, the plaintiff underwent the further wash-out procedure of his right ankle wound as planned. At that time Dr Miniter removed all remaining hardware on the lateral side of his right ankle. After that surgery, two residual redundant elements of hardware, namely EndoButtons and some attached tightrope fibres, remained in situ on the medial side of the plaintiff's right ankle. 4. After swabs were taken from the wound, the organisms Corynebacterium Jeikeium and Staphylococcus Capitus were isolated. The plaintiff was treated with vancomycin for 3 days. He was discharged with instructions to take doxycycline 100mg BD and ciprofloxacin 500mg BD: Exhibit "A". The plaintiff said that Dr Miniter came to see him about two days post-operatively and said: "It's all out, everything is gone … hopefully your infection will start getting better now, it will be treated better": T27.30. Dr Miniter disputes elements of that account. 5. The plaintiff said that at that time, he had understood from his discussion with Dr Miniter that no residual hardware devices had been left in his right leg that could serve to harbour infection: T27.48. The plaintiff's claimed account of the content of that post-operative conversation may not be entirely correct given his concessions concerning matters of recorded detail. The plaintiff's account was not corroborated by the contemporaneous operative record, as was explained by Dr Miniter, which was to the contrary, namely that only the lateral hardware had been removed at the procedure carried out on 4 August 2010. 6. I consider the most probable and correct view of the circumstances was that Dr Miniter made the conscious intra-operative decision not to surgically interfere with the medial side of the plaintiff's right ankle. The result of that decision was that the residual EndoButton and a connecting segment of the tightrope were left in situ. The records do not indicate whether or not that fact had been explained to the plaintiff or to his treating general practitioner into whose care the plaintiff was later discharged. 7. In that latter regard, it was not suggested to the plaintiff that he had failed to make, or that he failed to heed the need to make, any follow-up arrangements for the removal of the residual redundant medial hardware that then remained in situ. Plaintiff's account of subsequent antibiotic management between August 2010 and 3 November 2010 1. Thereafter, the plaintiff's treatment remained under the supervision of Dr Senanayake, who successively reviewed him on 18 August 2010, 22 September 2010, and 3 November 2010, following which he was discharged from Dr Senanayake's care. At that time, all further antibiotic treatment ceased: Exhibit "A". The plaintiff said that in that period he had followed Dr Senanayake's advice in relation to the antibiotic therapy that had been prescribed for him. He believed the infection he had experienced had finally been treated successfully and cured. That belief is consistent with Dr Senanayake's correspondence to Dr Miniter. Plaintiff's account of an apparent 7 year infection-free period between late 2010 and mid-2017 1. In the ensuing years, between late 2010 and until mid-2017, the plaintiff pursued an active lifestyle with his family, including pursuing activities such as waterskiing, snow skiing, wake boarding, motorbike riding, cycling, gymnasium exercise, squash, tennis, fishing, boot camp, weight training and a generally active lifestyle, including overseas travel. He described those activities as "participating in life": T29.42. 2. In those years the plaintiff had encountered some other unrelated illnesses and injuries for which he was treated successfully. This included surgery for testicular cancer in 2016, a shoulder injury, surgery to a knee, and treatment for cellulitis due to an infection in 2016, a matter that attracted some analytical focus from the infectious diseases physicians to the effect that an infection could have entered the plaintiff's bloodstream at that time. There was also a suggestion in the expert evidence that the plaintiff's shoulder surgery could have had an influence or a contribution to the adverse course of his right ankle condition due to possible infection from that source. Plaintiff's account of onset of symptoms of infection in the right ankle in May 2017 1. In May 2017, the plaintiff noticed that his right ankle had become progressively sore, and he noticed that emergent wound weeping had begun to appear in a split that became apparent over the top of his surgical scarring. He also found his right foot had become very swollen, and that it was excruciatingly painful to walk upon. He found it problematic to drive because he experienced difficulty and pain when operating the brake pedal on his vehicle, and this also involved danger: T30.41 – T30.44. 2. In May 2017, he consulted his general practitioner in relation to those problems. He also attended the out-patient clinic at his local hospital on several occasions. He saw his general practitioner for those problems on 19 June 2017, 21 June 2017, 28 June 2017, 12 July 2017 and 19 July 2017. 3. On 21 June 2017, the plaintiff attended Cooma District Hospital. The presenting problem was that his previously healed right ankle wound had broken down. Pus was seen in the wound. He was treated with IV vancomycin and oral ciprofloxacin: Exhibit "A". In those events the plaintiff's general practitioner contacted Dr Miniter for advice on management of the plaintiff's condition. Plaintiff's account of the final surgery carried out by Dr Miniter on 25 July 2017 1. On 20 July 2017, Dr Miniter admitted the plaintiff to the emergency department at Calvary Hospital. On the following day he was admitted to that hospital proper. Dr Miniter then arranged for the plaintiff to be transferred to the National Capital Private Hospital in Canberra where he remained until 25 July 2017 for treatment of osteomyelitis: Exhibit "A"; T31.20 – T31.36. 2. The plaintiff said that in those events, initially, Dr Miniter had told him the treatment would be by way of surgery, but this then changed to antibiotics, and then later, to surgery, after the infection did not settle. 3. On 25 July 2017, the plaintiff was transferred and admitted to the National Capital Private Hospital, at which time Dr Miniter operated upon him. The plaintiff said Dr Miniter had given him the understanding that he was just going to have "another wash-out" to "improve … [his] … chances": T32.8 – T32.21. Given the plaintiff's fair concessions as to the limits of his accurate recall of events, I consider that the plaintiff's account of that conversation is not an entirely reliable basis for concluding that it was accurate as to its content: T46.21 – T46.27; T47.2 – T47.13. 4. Between 25 July 2017 and 1 August 2017, the plaintiff remained an in-patient at The National Capital Private Hospital for treatment of his osteomyelitis. The treatment was described as removal of retained foreign material in the right ankle, the excision of a sinus tract in the lateral aspect of the right ankle, the removal of suture material in the base, removal and excision of EndoButtons on the medial aspect of the tibia, with wash-out. It was noted that MSSA had been grown from the swab samples taken. Antibiotic treatment consisted of IV flucloxacillin 2gm QID to continue to 9 August 2017, to be then changed to bactrim DST BD until 25 October 2017: Exhibit "A". 5. After the plaintiff woke from the anaesthetic for that procedure he said he had a conversation with a nurse in the recovery ward in which he asked "what, what happened": T32.33. The answer the nurse gave to that question was recounted by the plaintiff (at T32.4), but this was objected to, correctly, as inadmissible hearsay, and the topic was not later illuminated by further admissible evidence. 6. The plaintiff said he did not see Dr Miniter after that surgery, but that he had spoken to him by telephone on about the third post-operative day when Dr Miniter rang to see how he was going: T32.37. The plaintiff's evidence-in-chief on that subject was somewhat disjointed: T32.29 – T32.39. Nothing of determinative significance seems to turn on that evidence. In those events the plaintiff's general practitioner had been in advisory contact with Dr Miniter. Plaintiff's account of further antibiotic treatment under the supervision of Dr Senanayake 1. At that time, Dr Senanayake again took over the plaintiff's treatment and care. He placed him on antibiotic therapy, including the administration of antibiotics through a PICC line. At that time the plaintiff was experiencing some social and business pressures due to the ill-health of his brother's children, so Dr Senanayake arranged for him to be discharged home with a portable device for administering antibiotic therapy. This was to enable him to return to Jindabyne to assist in the family business as it was peak season for that business. 2. Whilst the plaintiff was at home recuperating in the period following his final operation, his right ankle was very sore. At that time, he noticed there had been an incision on the left or medial side of his right foot, which he thought to be "weird": T34.30. His general practitioner continued to monitor his condition, and later, the stitches were removed when this was required. The plaintiff still had to see Dr Senanayake on a regular basis as he was then on antibiotics for a period of three months. Plaintiff's account of genesis of the litigation – August 2017 1. In August 2017, on becoming post-operatively aware of surgical scarring to the medial side of his right ankle relating to a surgical wound created there on 25 July 2017, and in thinking about a related difficulty in wearing certain footwear, he was confused about having had surgery at that site: T34.45. It was that awareness which has led the plaintiff to a pathway of inquiry resulting in him becoming aware of the residual medial hardware only having been removed at the most recent operation on 25 July 2017. That pathway has resulted in the initiation of these proceedings. Plaintiff's present situation 1. Stated briefly at this point, the plaintiff's work, domestic, marriage, and day-to-day activities, and his outlook on life, including his ability and inclination to pursue leisure activities, changed for the worse following the events described above. Those matters will be revisited in the consideration of his claim for damages. Survey of Dr Miniter's evidence 1. It is necessary to say something of Dr Miniter's professional background and clinical experience. Dr Miniter's professional background 1. Dr Miniter completed his primary medical qualifications in 1985 and completed his fellowship in orthopaedics in 1993. He has been in continuous practise as a specialist orthopaedic surgeon in the Australian Capital Territory since then. He has appointments at several hospitals. He currently holds an appointment as Associate Professor in the Faculty of Health Services at the University of Canberra. His qualifications and experience were not disputed. 2. Dr Miniter has had considerable experience over the course of his orthopaedic career in performing ankle surgery for at least 1500 patients with ankle fractures: T88.41. Dr Miniter's initial assessment of the plaintiff's injury 1. Dr Miniter said that he recalled his first consultation and interaction with the plaintiff, including his review of the plaintiff's radiological imaging: T88.46 – T89.49. He described his assessment of the plaintiff's injury and his initial advice to the plaintiff in the following terms: "A. There was an injury not only to the ankle, where there was a fragment of bone avulsed from the front of the ankle joint, that was part of the syndesmosis. The ankle ligaments were also disrupted medially. There was a fracture of the anterior calcaneal process, and there was also a fracture of the anterior portion of the talonavicular joint. Q. What if anything did you say to Mr Old about what you saw on the X rays or CT? A. I said it was a very serious injury, and that the full magnitude would not be understood until I had put a telescope in his ankle. Q. When you say a telescope in his ankle, what is that? A. It is common for us to use a small device which looks like a, a pen, the purpose of which is to look inside the joint, and it allows us to visualise the joint surfaces. It's called an arthroscope. Q. So did you recommend to Mr Old any particular surgical technique or describe to him what surgery you were expecting to do? A. I told him that I would assess the ankle whilst he was asleep, that I would internally fix the fracture of the fibula, which was seen on the X ray, and that I would then assess the syndesmosis, which is between the two bones. If I thought that was unstable, I would then stabilise that and I would use a different apparatus to do it. And I also said to him that I would look inside the ankle with a telescope, and deal with any problems that I felt. Q. Do you recall whether Mr Old had any particular questions about the surgery, before it happened? This is in the consultation. A. I don't clearly recall. Q. Do you recall saying anything else to Mr Old during the consultation, other than describing what it was that you saw on the X rays or CT and describing the surgery? A. I said to him that it's a serious injury and it's not necessarily the case that this will go well, even if I had done the surgery perfectly. Q. Did you tell him anything about post-operative care? A. I did. Q. What did you tell him? A. I emphasised the importance of rest, elevation, and particularly in the first two to three weeks." [T90.5 – T90.45] 1. Dr Miniter said he told the plaintiff that a crucial requirement of post-operative care was for rest, elevation and the general avoidance of work-related activities immediately post-surgery: T91.17. Dr Miniter explained the significance of that advice, as follows: "A. The immediate post-operative period, your Honour, is, is really a very important time. There is a race between the healing of the wound and the dissolution of swelling. If swelling becomes an issue, then the wound will tend not to heal. And if the wound breaks down or becomes macerated, then secondary infection may occur. So it is a golden period of time in the first two to three weeks, during which time we like to see perfect rest, elevation, wound healing, sutures out usually somewhere between two and three weeks. Q. The nature of the infection that you were apprehending as possibilities at that stage, were they from sources that were aerobic or anaerobic? A. Well, both, but mostly aerobic; mostly aerobic. An aerobic infection - do you want me to say anything further or not?" [T91.28 – T91.39] 1. Dr Miniter identified the terms of a post-operative conversation he had with the plaintiff about the plaintiff's stated timing of his need to return to work, and the countervailing medical consideration, namely the importance of the plaintiff's need for post-operative rest for healing to take place: T92.22. 2. As the account of Dr Miniter's first clinical encounter with the plaintiff as described in the preceding three paragraphs was not challenged or contradicted, and as it did not seem to be inherently improbable, I accept Dr Miniter's account as cited above as being accurate. Dr Miniter's description of the first operation and aftercare advice – 10 May 2010 1. The first surgical procedure Dr Miniter carried out on the plaintiff, on 10 May 2010, was described as right ankle arthroscopy, fracture fixation and syndesmotic reconstruction: T92.30. First, a plate and a series of screws were applied to fix the fracture of the fibula, then, after confirming arthroscopically that there was syndesmotic instability, cartilage and ligamentous damage, and the presence of an avulsed non-articular bone fragment which was removed, followed by the installation of the tightrope system for stabilising the ankle was applied using two tightropes. After drilling, through the fibula and tibia, a needle device was deployed to insert and place stabilising EndoButtons on either side of the ankle under tension to hold the ankle components in place with immobilisation and following which a protective plaster was applied: T92 – T95. 2. Dr Miniter stated that to the observer, those circumstances would have been that there had been a main lateral incision that was sutured, and a small non-sutured medial puncture mark where the suture or tightrope came through the ankle on the medial side: T96.10. 3. Dr Miniter made the assessment that the injury from the plaintiff's motorcycle accident involved a large energy exchange. The impact not only affected bone, but it had also affected the associated soft tissues. He said this made it even more important for the plaintiff to rest and to post-operatively elevate the limb otherwise wound breakdown would be an issue. He said he had made this very clear to the plaintiff that it was very important that he follow those instructions: T96.25 – T96.45. Post-operative consultation – May / June 2010 1. Aided by having consulted his own notes on the morning he gave his evidence, Dr Miniter described the plaintiff's presentation to the post-operative clinic on 24 May 2010, where the ankle plaster was removed. At that time he saw significant swelling, which he had not expected to see: T97.1 – T97.22. He said this to him indicated that the plaintiff had a dependency concerning the use of his right leg, and that it was not being rested and elevated. He said he reiterated his concerns to the plaintiff about wound healing and the importance of rest. No mention was made by Dr Miniter of a malodorous presentation of the plaintiff's right ankle at that time. I consider that if there was a malodour of diagnostic significance, Dr Miniter would have noted it at that time. 2. Dr Miniter described his next post-operative contact with the plaintiff as being in early June 2010, at which time there was a concern expressed, either from the plaintiff's general practitioner, or from his own practice nurse, as to the appearance of the dorsum and plantar surface of the plaintiff's right foot. The appearance was of significant swelling and discolouration, and "what looked like pressure both at the dorsum and plantar surfaces", which he said, to him, indicated this "was probably as a result of excessive dependency" which had led to swelling and internal pressure within the confines of the plaster. In his view those phenomena had nothing to do with what was done at the time of operation: T97.40 – T99.1. In his letter to the referring general practitioner, Dr Miniter attributed the swelling to pressure and not to "dependency" as was stated in his oral evidence. I consider his contemporaneous letter to the plaintiff's general practitioner to be a more reliable source for identifying the views he held at that time. Re-admission to hospital 1. In light of the above circumstances, Dr Miniter decided to re-admit the plaintiff to hospital for several days to see if the swelling would settle so that the presenting problem could be reversed. At that time he felt an infection was unlikely, so no antibiotics were prescribed. The condition of the ankle then improved rapidly over the following three or four days so the plaintiff was then discharged from hospital: T99.5 – T99.33. 2. I consider that if there were signs of infection evidenced by a malodour of diagnostic significance, at that time it would have been recorded somewhere in an appropriate place in the clinical records by either Dr Miniter or a hospital nurse. As there was no evidence to that effect I am inclined to the view that the plaintiff was either mistaken as to the timing of his perception of malodour or that he had perhaps placed an incorrect diagnostic significance upon any such malodour due to an understandable absence of relevant expertise on his part. Given the plaintiff's concessions concerning the limits of his recall of detail, it is of some significance that no corroborative evidence was introduced from the plaintiff's general practitioner as to the timing or the diagnostic significance of any such malodour. Review by Dr Miniter on 17 June 2010 1. On 17 June 2010, Dr Miniter reviewed the plaintiff. There was no comment in the tendered clinical records to suggest that the plaintiff's surgical wound was not intact, or that there was any sign of infection in that area: T101.4. Dr Miniter's letter to the plaintiff's general practitioner noted that his advice for the plaintiff to continue with physiotherapy, and to not weight bear until seen again a month later. That letter included the following summation: "I was pleased to see that Brian has progressed very well since last review. He has a good range of motion and the small pressure area on the interior and lateral portion of the foot which is probably related to the swelling which occurred whilst he was immobilising with the plaster is resolving well." [Exhibit "1", Vol 1, p 239] Dr Miniter's letter to the referring general practitioner made no mention of dependency or excessive dependency. His letter suggested the pressure area was due to swelling, not dependency or weight bearing. As indicated earlier, if dependency had been a significant issue of concern in the sense of a perception that the plaintiff was not following instructions regarding post-operative care, I consider that Dr Miniter would have communicated a concern to that effect to the plaintiff's general practitioner as it was a relevant consideration in the management of the plaintiff's post-operative care. 1. Dr Miniter recalled that at hospital, although he had observed that the plaintiff's stitches were under tension, he thought that this was due to swelling. When his attention was drawn to the question of what if anything should be concluded from the presence of odour from the wound, his evidence was as follows: "Q. If odour had occurred at that point, what significance would you have placed on it? A. It depends what the odour would be. Sometimes there's malodorous smell simply by being immobilised in plaster and sometimes your Honour after a surgical procedure some blood accumulates on dressings and sometimes it is quite malodorous, but there are other smells which can portend more serious consequences and we are more perhaps alert to those." [T101.16 – T101.23] 1. I infer from Dr Miniter's evidence and his notes that if there had been a concern over the presentation of a malodorous wound that portended an infection, it would have been recorded in his letter to the plaintiff's general practitioner on 17 June 2010 as being a matter of clinical significance to be monitored given the geographic distance between Jindabyne and Canberra. There was no mention in that letter of such an observation. I consider it unlikely that Dr Miniter would have failed to mention such a finding if it had been present as a relevant clinical factor. Re-admission to hospital for second operation 1. Several weeks after Dr Miniter's previous contact with the plaintiff, he was informed by the plaintiff's general practitioner that the plaintiff's condition had worsened, and despite having commenced antibiotic therapy, the wound was of concern. The plaintiff was then asked to re-present himself to Dr Miniter for a review: T101.31 – T101 – 50. 2. On 30 June 2010, Dr Miniter reviewed the plaintiff and expressed concern over the state of the appearance of the wound, as he felt that it was not displaying signs of healing. Instead, there was diffuse redness evident, with fishmouth-type openings patent at the points of skin sutures, indicative of an infection, which was assessed as being serious, and in need of surgical attention. He intimated those concerns to the plaintiff and arranged a prompt re-admission to hospital for exploratory surgery: T102.5 – T102.43. 3. At the surgery on 30 June 2010, Dr Miniter removed the lateral sutures, inspected the wound and saw clear evidence of infection. In his oral evidence he described the infection as being deep: T102.30. He inspected the area between skin and the bone below, at a depth of about 1.5cm, and saw a deep space where the wound had not healed, and he could see directly down onto the indwelling fixation plate. There, he saw some purulent material, which he initially described as laudable. When Dr Miniter was asked to explain the use of that term he acknowledged it to be an arcane historical reference to an earlier time in medical history when the clinical appearance of pus in the 1700's was thought to be a good thing, as it was thought at that time to imply healing, but no longer so: T102.43 – T104.30. Professor Guinness, the infectious diseases physician retained by the plaintiff's solicitor, was present in Court when that evidence was given. He later referred to the sign of abundant pus, historically referred to as laudable, as being a deplorable sign: T235.17. 4. In those events, Dr Miniter took swabs for cultures to be grown. This was not described in further detail. He also performed a wash-out of the wound, he cut away the sutures from the tightrope anchors and he removed the lateral anchor discs that were associated with those tightropes. He explained that the fixation plate and its associated screws were not removed at that time because "the fracture itself was fresh and not healed": T104.37 – T104.41. As the treating orthopaedic surgeon, that was a clinical judgment which was open to him to make. 5. In the course of post-operative care, Dr Miniter informed the plaintiff that the infection was a significant problem; it should be assumed that it was deep; that the infectious diseases physician at the hospital would be involved in his antibiotic treatment; and he would have to remain in hospital until those treating him determined he was on the correct antibiotic therapy for the organisms that were grown from the intra-operative samples. At this point, Dr Senanayake, the hospital infectious diseases physician, took over the plaintiff's antibiotic treatment. 6. In respect of that plan of management, Dr Miniter identified some differing clinical perspectives. Whereas in general circumstances, "infectious diseases physicians are keen to have offending fixation removed as soon as practical", he thought the appropriate time to do so in this instance was either late July or early August "by which time we could safely remove the plate and screws", and in the meantime the infectious diseases physicians would manage the antibiotic regime: T105.10 – T105.35. 7. Those divergent views will be revisited after considering the expert evidence and in the course of identifying my findings on whether or not there has been a relevant breach of the duty of care owed by Dr Miniter. Third operation – 4 August 2010 1. Dr Miniter admitted the plaintiff to hospital on 4 August 2010. By then, the plaintiff's surgical wounds were healed, and the swelling in his right ankle had much reduced. He therefore decided that this was the foreshadowed "soon as practical" time for removal of "the internal fixation": T106.5 – T106.14. 2. In discussing that treatment plan with the plaintiff, Dr Miniter said that he had told the plaintiff that although the wound had healed, and although it looked like the fracture had healed, "bugs can still live on these plates, and for that reason we should take them out", and the plaintiff then agreed to that course. In those events, Dr Miniter said he had reiterated to the plaintiff the significance of resting after the removal of the internal fixation. His reasoning for that advice was that the effects of the previous infection had the potential to impair the process of healing from this most recent procedure, and therefore rest and elevation were important to allow for the new wound to heal: T106.16 – T106.42. 3. Dr Miniter described that 4 August 2010 procedure as follows: "Q. Can you describe essentially what you did in the procedure, and I might stop you occasionally if I don't understand, but if you could describe what you did and assume that we are standing behind you watching, trying to understand what you're doing. A. So the patient is asleep. We put a tourniquet on the leg, which stops the blood going to the area in question. We then carefully prepare the area, we put drapes on. And then I made an incision directly down the line of the original incision. Q. Can I ask where are we? A. On the outside of the ankle. Q. Is that the lateral side? A. Correct. Having identified the area where the original incision was, reopened the incision, sometimes remove the scarring itself, which I think I did, and then basically explore directly the bone, identify the plate and screws, remove all the plate and screws, and then take specimens because we're almost sure that there are going to be organisms around these plates. Q. So when you say take specimens, what's that? A. We have a special swab stick, and we also send fresh specimens to the microbiologist, who will put it on plates and attempt to grow organisms from it. Q. How big is this incision that you've opened? A. Same size as the one we used initially, so it's probably 12 centimetres long." [T106.50 – T107.25] 1. Dr Miniter then went on to describe the remainder of that 4 August 2010 procedure as follows: "Q. After the plates were taken out and the screws were taken out, what if anything did you do next? A. Then we washed the wound, and we closed it with interrupted stitches, and once again we dressed the wound. Q. So when you say you washed the wound, what - again assuming that we're standing behind you watching - what are you actually physically doing? A. So what we're doing is really just cleansing the area. So I, I'd be very careful not to traumatise the soft tissues, so we just use a syringe which contains normal saline, which is an isotonic solution. We just wash it out. Q. After you've washed out the wound, what if anything are you looking at? What did you see? A. I see a wound with no evidence of infection that I could see, no evidence of pus, but that's only macroscopic. Q. It's only macroscopic? What do you mean, just A. Well Q. with your eye? A. Correct. Q. After that you sewed up, re-sewed up the A. Correct." [T108.7 – T108.30] 1. Dr Miniter explained the reference in his 4 August 2010 operation record which stated "No evidence of deep sepsis" as meaning that there was no frank evidence of purulent material such as pus that would suggest an ongoing infection: T108.34 – T109.13. That evidence attracted a significant difference in the points of view within the expert evidence provided by the respective infectious diseases physicians. I consider the difference in descriptions to be of little significance in light of Dr Miniter's description of the infection in June 2010 as being deep: T102.30. 2. Dr Miniter explained that at the time of that operation he only removed the lateral hardware in the plaintiff's right ankle because as there has never been any redness on the medial side at the location of the two residual EndoButtons, he thought that to remove those residual items by opening up an uninfected area of the ankle on the medial side, was inappropriate: T109.35. 3. By way of further explanation, Dr Miniter said that those medial EndoButtons were surgically inaccessible from the lateral side: T109.43. He was asked to further explain why he had not removed the residual medial hardware. His evidence in that regard, was as follows: "Q. Why didn't you do that on 10 August, bearing in mind that Mr Old had had an infection in his leg? A. Can I take you back just one minute, and that is to say that when we open these wounds up to remove hardware, we are not sure that it's not infected. In other words, even though it looks like it's not infected, we are not sure it's not infected. And so the possibility exists that we take infection from the infected area and put it into a sterile area and create a secondary infection. And in this situation the post-operative cultures clearly showed that there was infection present, even though it didn't look like it. Q. But you didn't know that at the time you were doing surgery, because you didn't get the post-operative cultures until later, I take it. A. I assumed it. HIS HONOUR Q. So on what basis could you make that assumption? Was it just A. It is well known in the surgical literature and in microbiological literature that these plates are covered in a film called a biofilm, in which these organisms can exist for literally hundreds of years. So simply removing that plate and looking like it doesn't seem infected is insufficient. What we do is we take the plate and we give it to the microbiologist, and they put it through a process called sonication, where they basically break up this biofilm. Within the biofilm there are microorganisms which are dormant. Given the opportunity, they can be reactivated, and that's why I didn't open up the medial side of this guy's ankle, for that specific reason. HORVATH Q. Do you recall having discussions with Mr Old at all at some point after the surgery? A. I did. Q. What discussions did you have with Mr Old after the surgery? A. I rang him on the day after the surgery. I told him that we had removed the fixation from the outside of the ankle, and I did my best to explain to him the nature of that. Q. Do you recall what if any response he made? A. I think he was just pleased to hear from me because he - I had told him that I wouldn't be around for three days because I was in Sydney but I had left him in the care of the infectious diseases physicians and I just wanted to ring him and make sure he was aware that I was thinking about his progress." [T109.50 – T110.42] 1. The content of that conversation was not elaborated upon in the evidence. It made no reference to hardware on the medial side. No contemporaneous correspondence was tendered which served to record the substance of any such discussion with the plaintiff along the above lines. 2. Dr Miniter then left the plaintiff's antibiotic after-care in the hands of the hospital's infectious diseases physicians in order to determine the appropriate therapy for the plaintiff: T111.1 – T111.38. He later saw the plaintiff again about two weeks post-operatively for the purpose of removing the sutures, following which he did not see or hear from the plaintiff until mid-2017. There was no suggestion in the documentary evidence, or in Dr Miniter's evidence that a follow-up arrangement of any kind had been made for him to see the plaintiff after the 4 August 2010 operation in order to arrange a time to remove the residual redundant medial hardware. On the contrary, and to Dr Miniter's knowledge, it seems from Dr Senanayake's letter to Dr Miniter dated 3 November 2010, that it was left to the plaintiff to make contact with either of them if he had a concern: Exhibit "1", Vol 2, p 551. Consultation at Calvary Hospital on 25 July 2017 and transfer to National Canberra Private Hospital 1. In May 2017 the plaintiff had an emergent presenting problem comprising an infection in his right ankle. The plaintiff's general practitioner had initiated antibiotic treatment and had then made contact with Dr Miniter's rooms for advice. Dr Miniter then saw the plaintiff at Calvary Hospital on 25 May 2017. Dr Miniter made immediate arrangements for the plaintiff to be admitted to Calvary Hospital. When he saw the plaintiff at Calvary Hospital, he described the circumstances as follows: "Q. When you saw Mr Old that day in Calvary Hospital, what, if anything, did you learn about the historical events leading up until the day you saw him? A. I, I recall it very clearly and Brian was unhappy, he was in discomfort and he had a recollection of a number of weeks of ongoing symptoms which were clearly those of a developing infection to an experienced practitioner and that's what he told me. Q. What, if anything, did you say to him when you examined him and took his history? A. I expressed concern that he hadn't contacted me. I did say to him, "Why did you not ring us?" And his answer I cannot recall but it - I was expressing a degree of frustration because this was an important historical feature. Q. What at that point was your treatment plan when you examined him and took his history? A. So I outlined very clearly what I thought was going on and I said to him that this clearly needed surgical re-exploration and I told him that that would need to be done urgently. I said to him that we would take swabs to see whether the organism was the same as last time and we would also then need him to be on intravenous antibiotics for a period of time. I assumed that the infection was deep and involving bone and I told him that. Q. Now, just to be clear, I may have jumped over a step. You took a history from him, did you also examine his foot? A. I did. Q. Could you describe what it was that you saw? A. So I remember that his wound on the lateral side was angry. Q. What does that mean? Can you describe what that means? A. A lay term, I suppose, for a wound that is red and swollen and we would use the word "erythematous" but, you know, red and swollen and just looking very unhappy and it looked like it had been going on for quite a while. Q. Other than the wound on the lateral side, was there anything else that you observed about the foot at all? A. The foot was swollen, as you'd expect, pretty indicative of ongoing sepsis and also the fact that he's probably been on it for quite a while but there was no swelling or no, no redness, should I say, over the medial aspect, none. Q. So you told Mr Old, I think, that you needed to do some further exploratory surgery and do you recall what Mr Old's response was? A. He was angry and frustrated. He kept saying to me that, you know, "I have a job to do. I have a business to run" and I was very clear to him and I said, "Well, Brian, it is very unfortunate but this is unfortunately have to take - has to take precedence over that." He wanted to go home. He did actually want to discharge himself." [T112.29 – T113.25] 1. Dr Miniter said he managed to persuade the plaintiff to remain in hospital and to have surgery to address the presenting problem. The plaintiff was apparently reluctant to do so because of seasonal business demands, but ultimately, he accepted Dr Miniter's advice. Dr Miniter's evidence of the detail and findings of that procedure was as follows: "Q. Can you recall what happened next in the clinical picture? What went next? A. Well, having, having reassured him of the seriousness of this matter and having him understood that this really did need to be managed, I took him to the operating room as soon as I could and I opened up the wound on the lateral side. Q. What did you see when you opened up the wound on the lateral side? And, again, to the extent that you can, can you imagine that we're standing behind you and looking over your shoulder and can you describe what it is that you saw when you opened him up in 2017? A. So looking through the lateral side I could see where the original plate had been. I could still see the remnants of the screw holes, from which there was purulent material issuing forth. Q. So pus? A. Correct. There was also a more significant degree of cavitation in the depths of the wound so it looked like this had been going on for a long time and in the depths of the wound the cavitation was associated with - right at the absolute tip I could see a couple of fibres of material. Q. Can we slow you down because I don't know what cavitation is. Can you explain - when you say you saw cavitation, what's that? A. So cavitation is where bone is lost and over a period of time a chronic inflammatory process will lead to bone loss. HIS HONOUR Q. So this is different from resorption? A. Basically that's what it is but it becomes so significant by any loss through the central portion of the, of the - what is effectively the abscess cavity. We don't see these things very much anymore because it's - you know, we don't usually see things that go on this long but, yes, an abscess cavity with cavitation and right in the depths of that I've already mentioned to you. HORVATH Q. I'll come to the fibres because I don't know what they are yet but we'll come to those in a moment. So when you say that it looked to you that it had gone on for a long time, what does that mean? I don't know what a long time is. A. Well, it's impossible to put a quantum on that but I'd have to say at least months. Q. When you say that there was this cavitation, are you able to explain where on the bone this was compared to, say, either the screws or the plate or the device or something so that we can follow where you were looking at? A. So where the plate had originally been removed there are screw holes in the bone and through the middle of those screw holes, which is where the TightRope anchors were, you could see that there was an enlargement of the aperture. So what normally happens with bone when you've taken out internal fixation is that the bone closes over, over time but in this situation you could see that it was expanding and through the middle of that, which I washed out, there was purulent material and that's how I could identify it. Q. I think you said that you saw fibres? A. Correct. Q. What are fibres in this environment? A. So I thought that the fibres could possibly be the very tip of the material used for the EndoButton. Q. Does that mean you were seeing, essentially, through the bone? A. Correct. Q. So when you saw the fibres, what, if anything, did you do next? A. So I made the assumption that the fibres were arising from the EndoButton construct on the inside of the ankle and I asked for the X-ray machine to be brought in and I located the EndoButton through a separate incision and then I removed it and all the fibres and, having done that, I washed all of the wounds out completely. Q. And that was what led to the incision, I take it, on the medial side? A. Correct." [T 113.37 – T114.49] 1. In Dr Miniter's operation note for that procedure (Exhibit "1", Vol 1, p 242) there was reference to the removal of a sinus tract on the lateral aspect of the plaintiff's right ankle, and removal of suture material that was located in the base of the sinus, and an excision of the residual EndoButton on the medial side. 2. Dr Miniter was asked to clarify the procedure of removal of the sinus tract. He did so in the following terms: "Q. What was that? A. So that's an indication - a sinus is a point of communication between, for instance, in this case, bone and the outside world. So it basically forms a tunnel which never heals, that's what a sinus is. So one of the parts of dealing with this surgical is to remove that sinus tract and then go to the base of the wound and find what's causing the problem and also deal with that. So that's what a sinus tract is. Q. That was during the first part of the operation, I take it? A. Correct. Q. And, again, I think you said you took swabs? A. Correct." [T115.17 – T115.28] 1. The actual or estimated depth of that sinus tract was not further clarified in the evidence. The locations selected for swab sampling were not further described. 2. After that procedure, and after the cultures had been grown from the surgical swabs, Dr Miniter said that the hospital infectious diseases physician made decisions about appropriate antibiotic therapy as his own role, which he described as his main role, had been with regard to wound care: T115.50 – T116.3. The plaintiff did not contact Dr Miniter after his discharge from hospital. Dr Miniter initiated that later contact. 3. The final contact between Dr Miniter and the plaintiff ended unpleasantly. Dr Miniter recounted the circumstances of that contact as follows: "Q. After the July 2017 surgery, did you speak to or see Mr Old again? A. Yes, I saw him when he was in hospital and then it came to my attention that he hadn't turned up for his post-operative appointment. Q. What, if anything, did you do following it coming to your attention that he hadn't come to his post-operative appointment? A. Concerned as I was for the matter, I rang him personally. Q. Did you speak to him? A. I did. Q. What, if anything, do you recall about that discussion? A. I remember that he was rather unpleasant and he told me that he was taking legal action and that he wouldn't be coming to see me again. Q. Do you recall what, if anything, you said? A. I said to him that that was unfortunate, but I did also say to him that irrespective of that, that he needs to go down and see somebody else, if he was unprepared to see me." [T116.6 – T116.24] 1. Dr Miniter was cross-examined on various aspects of his care of the plaintiff. During that cross-examination he made a number of concessions, none of which in my view directly reflected adversely on his defence to the plaintiff's claim. Those concessions were as follows: 1. Throughout the course of the plaintiff's treatment there was a concern over the possibility of infection developing and attaching itself to the component parts of the internal hardware inserted into the plaintiff's right ankle: T116.28 – T117.2; 2. At re-operation (on 30 June 2010) he left the hardware components comprising the plate and screws in place because they were still performing the function of assisting bone healing: T117.16 – T117.19; 3. In August 2010, he formed the view that the plate and screws required removal because, if left in situ, retained bacteria on those devices could naturally give rise to infection: T117.45 – T117.49; 4. The decision on whether or not to remove the hardware on 4 August 2010 was his call, in collaboration with the infectious diseases team, and in this instance, there was a concern about possible future infection from bacteria which might have been masked by a biofilm, which led to the collaborative decision to remove hardware, the qualifier being that a delay in implementing a decision along those lines is justified whilst the bones are not sufficiently healed and the ligaments are still healing: T118.15 – T118.50; 5. Any pathway that was surgically created within the ankle, and that tracked through bone, such as for the tightrope system that was used in the plaintiff's treatment, simply by its presence, could be a possible source of tracking and travel for infection: T119.49 – T120.14; 6. Although signs such as erosion of bone, bone loss, fragmentation of bone and cavitation of bone might be absent (as was the case at the procedure he carried out on 30 June 2010), that does not necessarily mean that there is no osteomyelitis present: T120.44 – T121.4; 7. It is impossible to be certain when osteomyelitis first appeared in the plaintiff's ankle: T121.13; 8. One can never be certain that osteomyelitis has gone as it can re-appear many years later, and it was within his clinical experience that it has been seen to be present in patients after 50 years: T122.14 – T122.18; 9. At the procedure on 30 June 2010, it was potentially likely that there would have been Staphylococcus on the lateral EndoButtons and the associated knot where they intersect with the deep part of the wound: T122.44 – T123.4; 10. In the context of a discussion of the content of his 4 August 2010 operation note, he acknowledged that it was of possible relevance to the infectious diseases team to know, in connection with their post-operative management of the plaintiff, that some foreign material had been left in the plaintiff's ankle joint: T126.47 – T126.50. In answer to a question which followed, as to whether he had a discussion with the infectious diseases team about that, he answered by saying: "A. I'm, I'm not sure that that's necessary, but in this case I had no opportunity to see Mr Old again. He never came back to see me.": T127.1 – T127.14. In my view, that answer deflected the question, possibly because the question contained a false premise as Dr Miniter said there was no material left in the ankle joint, being the joint itself as distinct from nearby structures, although the residual tightrope, as described, would have traversed through a range of ankle tissues. That said, in relation to a possible follow-up arrangement, there was no documentary evidence to suggest that in August 2010, or later, Dr Miniter had left any instructions for the plaintiff to be followed-up, or for arrangements to be made for removal of the residual redundant medial hardware that had been left in situ after the operation on 4 August 2010; 11. On 25 July 2017, when he saw the plaintiff at Calvary Hospital, he decided to transfer him to the National Capital Private Hospital for surgery: Exhibit "1", Vol 2, p 634. That surgery is documented at sub-paragraph (25) of paragraph [83] above and at paragraphs [115] to [118] above: Exhibit "1", Vol 1, p 407.72; 12. When asked to consider whether the note made by Dr Senanayake on 27 July 2017, to the effect that suture material and EndoButtons were "discovered" intra-operatively on 25 July 2017, was a correct representation of what had occurred at that operation, he answered robustly that it was not correct. That answer was not rebutted by other evidence: T133.29 – T134.7; 13. When taken to Dr Senanayake's comment that the infection found at that time was "a bit odd" as cited at sub-paragraph (30) of paragraph [83] above, he interpreted the comment to mean that Dr Senanayake was stating that there was a new infection unrelated to the original infection: T134.47 – T135.18. He further explained that the evidence showed the organisms found at operation on 4 August 2010 were not the same as those found at operation on 25 July 2017, which on his understanding, indicated that the plaintiff's right ankle had not been chronically infected over a seven year period with the same organism: T135.5 – T135.18; 14. When asked to interpret the CT scan taken of the plaintiff's right ankle at Calvary Hospital on 25 July 2017 (found at Exhibit "1", Vol 2, p 655) he gave the following evidence: "Q. Can I take you to page 655 and I think that's where you'll find the CT scan? A. Do you wish me to interpret it for you? Q. Yes, so the impression or the under clinical notes, it's suggested that is a likely recurrence of osteomyelitis, do you accept that? A. Yes. Q. Do you accept that that's what's likely to have occurred? A. I mean it's possible, let's face it. The, the, the final presentation after months of basically what I would regard as poor management is (sic) osteomyelitis." [T137.33 – T137.42] At this point it is noteworthy to observe, first, that the plaintiff did not seek to make a case of poor management of osteomyelitis, and secondly, no expert evidence was tendered on behalf of Dr Miniter to support that assertion; 1. On a supplementary question on the above topic, Dr Miniter gave further evidence as follows: "Q. In the findings, it says that the two as I read it, "The two drill tracts reverse (sic for traverse) the distal tibia and fibula both associated with fixation buttons upon the posteromedial surface of the distal tibia. This may reflect TightRope fixation" And here's the critical part I want to get some help with. "The no fixation button is noted on the distal fibula". Can you explain that? A. So do you remember I said at the initial event when I took off those knots - 30 June I think it was, 2010. Q. Yes. A. The little washer which abuts the one upon which the - no knots are tied was removed simultaneously. Q. I see, thank you. A. Can I also point out that the CT scan shows and what I can read of this, that there's no obvious tibia osteomyelitis? It refers to fibula osteomyelitis and the features there of and as far as I could determine, no evidence of tibia osteomyelitis. And the clinical presentation was from the lateral side of the wound which is the fibula. Q. Presumably this would have been a study you would have had regard to before you performed the operation? A. This gentleman's presence in hospital was not my - brought to my attention until the day I saw him. Q. Yes, would you have seen the CT films or just relied upon the report? A. To be - I can't remember, but I would have seen the report. CAMPBELL Q. Following this presentation, following seeing this report, you decided to remove the EndoButtons and the TightRope wire, correct? A. Correct. Q. Could you just tell me if I am describing that correctly, what do you call the wires that go through the bones? A. It's called FiberWire. Q. So you removed the FiberWire in 2017? A. Correct. Q. Because they were involved in the infected process that the patient had, correct? A. Can I take you back to the - what I did actually say? I said to you that when I was exploring the lateral wound, I could see some fibers in the base of the wound. I didn't say that they were involved. I said to you that they were visible in the base of the wound. ... CAMPBELL Q. When you say the fibers, doctor what do you mean by fibers? A. Like the end of a piece of string I suppose. That's what fibers look like. Q. So you're talking about the end of the TightRope? A. Yes, the fibers. HIS HONOUR Q. Was that a normal or abnormal finding? A. I regard it as a coincidental finding actually because you know, I couldn't see them except for the bone erosion cause they're - they're right deep, so deep. CAMPBELL Q. The infection that you found in 2017, it was, I want to suggest to you, the same infection that was cultured or the same bacteria that was cultured on 30 June 2010. Do you accept that? A. It's completely wrong. We've just been through this. It's a completely different organism." [T138.6 – T139.38] 1. In cross-examination Dr Miniter made the following rebuttals to challenges made to his evidence, in which he rejected propositions with which he disagreed: T116 – T145. They were as follows: 1. He rejected the proposition that at the procedure he had carried out on 30 June 2010, it was unclear that the infection "involved a bone or if it was just soft tissue" and stated that he had observed it to have been clearly a bony involvement of the fibula, which could be described as osteomyelitis: T120.18 – T120.27; 2. He was uncertain that osteomyelitis was present at the procedure he carried out on 30 June 2010, as according to his notes, there was no evidence of deep infection which would be expected to show erosion of bone, loss of bone, fragmentation of bone and cavitation of bone, whereas he made those findings at the operation on 25 July 2017. However, he qualified that evidence by saying that the absence of those signs did not mean that no osteomyelitis was present: T120.35 – T121.5; 3. He rejected the suggestion that, on 30 July 2010, when he obtained the plaintiff's consent for the removal of the plate and screws on 4 August 2010, he was going to remove all of the indwelling hardware: T123.49 – T124.16; 4. In answer to the specific question of whether, after recording in his operation note of 4 August 2010, having removed all the remaining hardware laterally, there was any other clinical information that he needed to communicate to the infectious diseases team to ensure that the plaintiff was appropriately managed, he said: "A. I, I feel that I conducted the matter appropriately. I told them that I had approached the side where it was infected and I told them that I had removed the internal fixation. As far as I was concerned there was nothing left in the affected zone. I suppose if you extend this argument to other areas, I mean, we often have multiple fixation devices in bones all over the place, you can't take them all out, you just can't. Q. Yes but my question is this; once you wrote of the removal of all remaining hardware laterally, I understand your explanation for the choice of those words, was there any other relevant clinical information that you needed to convey to the infectious diseases team to ensure that the patient was appropriately managed? A. I don't think so, your Honour, and, in fact, that's borne out by his post operative progress because he had complete recovery." [T128.2 – T128.15] 1. Whilst agreeing that (on 4 August 2010), he had the opportunity to remove "Tight Rope wires and EndoButtons" [which I interpolate to mean all of those structures], he refrained from doing so out of concern over the possibility of infecting the medial side, which he said may well have potentially caused very serious tibial osteomyelitis, which would then have been very difficult to manage: T129.17 – T129.37; 2. Whilst he agreed that there was no evidence of any active signs of infection at the 4 August 2010 operation, he disagreed with the proposition that at that operation, removing residual medial hardware involved no additional risk to the plaintiff if he had operated on the lateral side at that time. His complete disagreement with that proposition stated that the underlying assumptions in the proposition showed "an ignorance of medical practice". In answer to a follow-up question by the cross-examiner on that proposition, he stated: "A. I mean, that shows an ignorance of surgical practice, without trying to be critical of you.": T129.48 – T130.12; 3. The cross-examiner attempted to reformulate the above proposition, which was again rejected in the following exchange: "Q. The risk of taking out the EndoButton in August 2010 was less than the risk of leaving it in and the TightRope wire through the bone and weighing up the risk between that and perhaps the infection that you might get, it was safer to take out the EndoButtons at that time? A. I disagree. Q. And that was, I want to suggest to you, of what you should have done exercising due care and skill? A. You're entitled to your opinion but I've given you my reasons. Q. I'm putting a proposition to you and I take it you're disagreeing with me? A. I am disagreeing with you." [T130.26 – T130.37] 1. When Dr Miniter was taken to the notes made by Dr Senanayake to seek a clarification of matters that Dr Senanayake had recorded, he acknowledged that Dr Senanayake's note of the admission on 25 July 2010 was for debridement on account of the clinical picture, based on CT evidence, which was that of osteomyelitis: T132.44 – T133.25; 2. In the face of some confusion arising out of the different pathogens found on microbiological test cultures taken at different times, Dr Miniter explained: "WITNESS: There were multiple different forms of staph. Like there were 80 different phage types that we know about. There were probably more than that. CAMPBELL Q. My question was, if I can ask it again. Back in June 2010, MSSA was found in the deep part of the wound? A. It was not. You have to understand a bit of microbiology, I understand the difference, but MSSA is not the same as staph aureus which was the organism which was identified initially. They're not the same thing. Q. The osteomyelitis that was discovered in 2017 was affecting the hole that had been drilled through the tibia, is that right? A. I, I can't tell you that for sure because the CT scan showed abnormalities in the fibula. It did not-- Q. I'm sorry? A. The CT scan that was done in Calvary Hospital showed CT - showed widening of the pull in the fibula which is where took the plate and screws out originally. It did not show any evidence of chronic osteomyelitis in the tibia as I recall. And if you look at the CT scan - the report, I think you'll find that." [T136.8 – T136.29] 1. Following the procedure on 4 August 2010, Dr Miniter did not specifically recall telling the plaintiff he had left "EndoButtons or the Tight Rope wires" in place: T124.49 – T125.1. 2. The cross-examination of Dr Miniter resulted in the following clarifying explanations being obtained from him: 1. The tightrope material deployed in the plaintiff's surgery was a braided unbreakable fibrous polymer, stronger than wire, that looks like suture material. When it was applied, it extended from the medial EndoButton, through the tibia, and through a hole at the lateral side of the fibula: T119.27 – T119.45; 2. The post-operative plan for the removal of hardware at the plaintiff's discharge on 7 July 2010, was for the plaintiff to return to see him after discussions with the infectious diseases team, at which time, after considering an x-ray, he would satisfy himself that the fracture had healed sufficiently to proceed to an elective removal of the plate: T121.21 – T121.34; 3. The relevant intra-operative microbiological cultures taken on 30 June 2010, are those taken from the deep part of a wound as the superficial cultures on the skin can be misleading: T122.22 – T122.46. Whether or not the same swab device was used to obtain samples from multiple sites in the wound was not clarified; 4. The reasoning for removal of the EndoButton knots on 30 June 2010 was first, they were very prominent, being about 1cm in width, and there was a concern they could cause mechanical irritation, swelling and skin breakdown, and also because of a concern about infection: T123.8 – T123.35; 5. In response to the perception that his operative note of 4 August 2010 may have contained an incorrect statement (namely the stated removal of all remaining hardware laterally) because the "sutures" and EndoButtons had been left in situ, he said this was possibly a discussion based on semantics, as his surgical shorthand as contained in his operation note indicated to him that he had removed the remaining hardware laterally, this being a reference to removal of hardware on the lateral side only, and that he had made a conscious decision not to explore the medial side, as to do so could have contaminated the other, or medial side of the wound, "which remained uncontaminated until the future": T125.5. – T125.48. That latter phrase "until the future" was not further explored as to its significance or intended meaning; 6. He explained that he had typed and printed his operation notes at the time of the operation: T126.22. In that regard, he was taken to a note made by Dr Senanayake on 18 August 2010 (at Exhibit "1", Vol 2, p 548), where Dr Senanayake had described the procedure on 4 August 2010 as being one that involved "removal of all of the hardware". His comment on Dr Senanayake's note was that those were the words of Dr Senanayake, and not his own words: T126.45; 7. On the topic of a new type of infection found at the operation on 25 July 2017, compared to that found in 2010, Dr Miniter gave the following evidence: "Q. What would be the possible sources of a new organism infecting this area? A. It Q. Over that A. It's one of Q. time span. A. two things. It's either the recrudescence of the original infection, in which case you would see the same organisms. If it's not the same organisms, then it suggests a blood borne carriage of infection, and I note one of the reports actually indicates that Mr Old had an infection at some time at the latter part of 2016. So it's a possibility that the blood borne infection could be taken up by internal fixation. The same thing can happen with hip replacements, knee replacements. It's a common thing. That's the likely cause of this infection. And that can happen with any internal fixation, including the stuff in his shoulder, incidentally. CAMPBELL Q. Yes, well, we know that the shoulder fixatures(as said), they did not become infected. Correct? A. But they could. They're still a possible nidus of infection. Q. But they're still performing a functional job, those fixatures? A. They don't do anything after the first six to eight weeks. They just sit there. But they are a possible point of infection, yes. Q. Do I take it from your last answer that if the EndoButtons and the TightRope wires weren't left in, then the infection would not have reformed in 2017? A. I'm not certain of that, because it's a possibility that he could have had a recurrence of osteomyelitis anyway, as I said earlier in this disposition." [T139.46 – T140.27] Survey of expert evidence 1. The evidence comprising the clinical records and Dr Miniter's explanations concerning his management of the plaintiff's treatment was the subject of expert consideration. In the paragraphs that now follow, I set out my review and summary of the expert evidence presented by the respective parties. Professor Robin Higgs – First report, 3 December 2018 1. Professor Higgs' first report, dated 3 December 2018, was based in part on his examination of the plaintiff on 31 October 2018, and in part on the material provided to him by the plaintiff's solicitor. His report was confined to answering a series of questions that the plaintiff's solicitor had posed to him concerning orthopaedic practice: Exhibit "B", Tab 1, pp 1 – 14. In essence, the opinions he expressed in that report were as follows: 1. The injury sustained by the plaintiff was classified by him as being a Weber B fracture of the right ankle joint; the initial surgical treatment on 10 May 2010 was appropriate; the surgery was complicated by a severe infection that was diagnosed in June 2010, followed by antibiotic treatment, then followed by a "clean out" procedure (in June 2010), at which time the fixation devices were not removed: Exhibit "B", Tab 1, p 3. The evidence did not elaborate on what would require a fracture to be classified as a Weber B fracture. I identify this description because it appears that Professor Higgs had incorrectly assumed that the plaintiff's fracture was a compound fracture, when that was not so. It is not clear as to whether those matters influenced the above classification. That said, nothing seems to have turned on that incorrect assumption; 2. The x-rays taken on 5 August 2010, as seen by Professor Higgs, indicated that after the screw and plate fixation devices had been removed from the lateral side of the plaintiff's right ankle, the previous fractures there were clearly seen to be well united: Exhibit "B", p 8; 3. He said that the plaintiff's six surgical scars were described and measured to cover an overall length of approximately 12.5cm; 4. He considered that Dr Miniter had appropriately arranged for treatment of the infection by an infectious diseases specialist; 5. Professor Higgs identified the following critical commentary of Dr Miniter's treatment of the plaintiff: 1. The basic understanding taught to all students of surgery and to all orthopaedic practitioners is that appropriate surgical treatment of any infection usually requires removal of all implant devices, along with a meticulous debridement as necessary. In the event that not all foreign implant materials are removed, then it is expected that (any) resulting infection usually persists, until such time as all foreign materials are removed. The presence of foreign fixation device materials is well known to predispose to infection, and if not removed, this is well known to lead to the persistence of infection, and that the greatest danger to the success of internal fixation is the occurrence of sepsis: Exhibit "B", Tab 1, p 10; 2. At the time of implant removal (which on the particulars of claim must be taken to be 4 August 2010 and not 30 June 2010), all foreign body material, including implants, should have been removed. Contemporaneous x-ray evidence dated 5 August 2010 showed that two metallic anchor devices were not removed from the medial aspect of the plaintiff's distal right tibia as at that date: Exhibit "B", Tab 1, p 11; 3. The two remaining anchor devices located in the medial aspect of the plaintiff's right tibia ought to have been removed in the surgery performed by Dr Miniter on 4 August 2010, consistent with what he had understood from the plaintiff to be Dr Miniter's stated intention of performing that procedure, namely to remove "all of the hardware": Exhibit "B", Tab 1, p 11; 4. Had all foreign material been removed in July 2010, the plaintiff would probably have recovered from his infection prior to August 2010, and would not have developed osteomyelitis, thereby obtaining a better outcome: Exhibit "B", Tab 1, pp 11 – 12. That evidence must be read in light of the evidence given by the infectious diseases experts on the issue of causation; 5. He was in no doubt that all of the fixation devices (in the plaintiff's right ankle) should have been removed at the procedure carried out by Dr Miniter on 4 August 2010, and had that occurred, the plaintiff's need for treatment would have been less than was in fact the case; 6. Dr Miniter clearly failed to remove all of the foreign body material that was used for fracture fixation (of the right ankle) and of the related inferior-tibio-fibula diastasis, and such failure, in August 2010, was a probable cause of the plaintiff requiring a prolonged period of treatment than might otherwise have been the case: Exhibit "B", Tab 1, p 13; 1. Professor Higgs prepared a supplementary report on 17 July 2019, in response to further material sent to him by the solicitor for the plaintiff for his comment. Part of the commentary that then ensued, related to a difference of opinion between a Dr Mina (whose report was not in evidence) and the opinion of Professor Braslins, the defendant's infectious diseases expert. As Dr Mina's opinion is not tendered in evidence it is not necessary to examine those differences: Exhibit "B", Tab 1, pp 15 – 20. 2. In his supplementary report, Professor Higgs considered the logic of Professor Sullivan's opinion with regard to the (infection) problems suffered by the plaintiff and stated that the treatment provided by Dr Miniter was not consistent with acceptable practice in Australia at the time the treatment was provided: Exhibit "B", Tab 1, pp 19 – 20. Properly, he did not venture opinions on the infectious diseases treatment. Professor Michael Guinness – Report, undated 1. Professor Guinness, a clinical microbiologist, prepared a report based upon a synoptic history constructed from the materials that had been provided to him by the solicitor for the plaintiff. His report set out a series of answers to questions that had been posed to him for his consideration: Exhibit "B", Tab 1, pp 21 – 25. He was provided with reports from Professor Higgs, Professor Sullivan and Professor Braslins. Professor Guinness has had 45 years of experience in the clinical diagnosis and management of infectious diseases. There was no dispute over his qualifications or his experience. His report identified the following matters of relevance: 1. He observed that Professor Higgs had incorrectly described the plaintiff's fracture as being compound, or open, when in fact it was a closed fracture that was then the subject of an open reduction and internal fixation: Exhibit "B", Tab 1, p 22. Nothing seems to turn on that point of observation; 2. The plaintiff's complaint, made on 11 June 2010, of the onset of pain and the appearance of erythema of the ankle joint was considered by him to be the prodromata of a deep infection: Exhibit "B", Tab 1, p 22; 3. On 30 June 2010, when Staphylococcus Aureus and Pseudomonas Aeruginosa were isolated from the plaintiff's right ankle wound (which must be assumed to be a surgical wound), as was agreed with Professor Braslins, septic arthritis was presumed; this represented an acute infection that existed at the time of surgery. At that surgery, a wash-out was performed, and appropriate aggressive IV antibiotic therapy was instituted, namely for one to two weeks, then followed by oral antibiotic therapy for three months: Exhibit "B", Tab 1, p 22; 4. On 4 August 2010, one of the screws removed at operation on that day grew Corynebacterium Jeikeium and Staphylococcus Capitus from tissue, which was a delayed infection, which in agreement with the opinion of Professor Braslins, meant this was an infection that existed at the time of surgery and constituted a delayed infection. He considered that it was curious that Staphylococcus Aureus and Pseudomonas Aeruginosa, different organisms, were grown from pus. In that context, he noted there had been no modification to antibiotic treatment as a result of the cultures that grew Corynebacterium Jeikeium and Staphylococcus Capitus. The plaintiff has not particularised a claim in that regard. The presence of Corynebacterium Jeikeium, Staphylococcus Aureus and Pseudomonas Aeruginosa, together, mandated the removal of all foreign material inserted at arthroplasty, yet this did not happen: Exhibit "B", Tab 1, p 22; 5. Four different bacterial species were isolated from the operative site indicated surgical wound contamination, rather than a haematogenous source of infection: Exhibit "B", Tab 1, p 23; 6. On 25 July 2017, at operation, where all remaining surgical hardware was removed, osteomyelitis was documented to be present, along with the presence of wound breakdown and pus, where Staphylococcus Aureus and Pseudomonas Aeruginosa were again isolated. He considered that the notion advanced by Professor Braslins to the effect that those organisms would re-infect the ankle by haematogenous spread, was not realistic, and that Professor Braslins' discussion on the possibility of a Staphylococcus Aureus infection from the bloodstream was without foundation: Exhibit "B", Tab 1, p 23; 7. He disputed the notion asserted by Professor Sullivan and Professor Braslins that an infected ankle in which hardware remained present can be analytically separated into infected and apparently non-infected compartments, so as to justify the retention of residual hardware in the apparently non-infected compartment. The stated basis of his dispute was: "Bacteria just doesn't recognise such boundaries": Exhibit "B", Tab 1, p 23. 1. Professor Guinness' report was structured to be responsive to a letter of request from the plaintiff's solicitor. Through no fault on the part of Professor Guinness, aspects of his report were difficult to follow only because the plaintiff's legal representatives had failed to tender that letter and the defendant's legal representatives had seen fit not to raise any objection or critical commentary based on that glaring deficiency. Neither party sought to remedy that deficiency. 2. Notwithstanding the difficulty created by the absence of that letter, from the evidence tendered, several further areas of commentary on liability issues were evident in the report of Professor Guinness, as follows: 1. Whilst properly refraining from offering commentary on orthopaedic practice, he observed that the advice of infectious diseases physicians is frequently ignored by their orthopaedic colleagues: Exhibit "B", p 24; 2. The conventional wisdom is that where there is an infected prosthesis, or where there is a fracture with hardware inserted, it is desirable to remove all foreign material. In identifying that conventional wisdom, Professor Guinness acknowledged this was a controversial topic, and that fracture stability was always an important consideration. Properly, he refrained from expressing opinions on matters of orthopaedic judgment: Exhibit "B", p 23; 3. His view, as an infectious diseases expert, was that the identification of four different bacteria from the plaintiff's surgical wound in the pathology results dated 26 July 2017 indicates gross wound contamination, which was a strong indication for the removal of all hardware. He considered that to be an overriding consideration that had not been considered by any of the other experts: Exhibit "B", p 23; 4. He considered Professor Braslins' argued distinction between infected and uninfected portions of the plaintiff's ankle to be unscientific in its nature, and therefore it represented an invalid basis upon which to retain hardware. He added the caution that he had not had the advantage of having observed the surgery and he had not seen the presentation or the appearance of the medial side of the plaintiff's right ankle at that time: Exhibit "B", pp 23 – 24; 5. He considered Professor Sullivan's characterisation of the presence of a "severe infection" as not being evidence of a deep infection, was contrary to his own characterisation of the infection. He considered that a severe infection should be seen as being a deep infection: Exhibit "B", p 24; 6. On the important causation question of whether the plaintiff's infection would have relapsed in 2017 if all the remaining hardware had been removed in 2010, Professor Guinness offered three significant perspectives (at Exhibit "B", p 24), as follows: 1. Infection is more likely to recur if hardware is retained; 2. Frequency of recurrence varies greatly between different scientific papers; 3. Given that four different bacteria were found to be present "in the original wound", three being highly pathogenic and suggestive of gross wound contamination, removal of all hardware would have significantly decreased the risk of latent infection and relapse with osteomyelitis, at the same time observing, in agreement with Professor Braslins, that Staphylococcus Aureus "lurks in the glycocalyx". 1. The reference to the "glycocalyx", according to two randomly available and accessed medical dictionaries, means the filamentous coating of the apical surface of certain epithelial cells, where in bacterial cells the glycocalyx forms masses of fibres that extend from the cell, and by means of which the cell adheres to the surface (of tissues or objects): Stedman's Medical Dictionary, 26th Ed, 1995, Williams and Wilkinson, p 733; Dorland Illustrated Medical Dictionary, 29th Ed, 2000, WB Saunders & Co, p 759. 2. Professor Guinness' answer to the question of whether Dr Miniter had acted in a manner widely accepted as competent professional practice was predicated on two significant propositions. The first was the existence of a wide variation in orthopaedic practise in Australia, where two orthopaedic experts have in this case given widely differing opinions. The second was from the perspective of a practising clinical microbiologist, which was that the advice of those practising his speciality is frequently ignored by orthopaedic colleagues: Exhibit "B", Tab 1, p 24. Professor Martin Sullivan – Report, 16 May 2019 1. In his report dated 16 May 2019, at the request of the solicitor for the defendant, Professor Sullivan provided opinions on Dr Miniter's management and treatment of the plaintiff to the following effect: 1. Dr Miniter's entire management was in accordance with widely accepted peer professional opinion as competent professional practice in Australia: Exhibit "1", Vol 1, p 1. That proposition as stated broadly, was of diminished evidentiary relevance as it was directed to a non-issue, namely s 5O of the CL Act, which had no application in this case; 2. The treatment of the plaintiff that included surgical management and Dr Miniter's decision to involve an infectious diseases specialist were appropriate: Exhibit "1", Vol 1, p 1; 3. Dr Miniter's decision to remove only the infected anchor button and suture material on 30 June 2010 and not any uninfected hardware was appropriate according to the peer professional practice test he identified in (1) above, which was not the relevant test according to ACT law, and where that decision was also based on the clinical response of the patient, this apparently being a lack of signs of infection on the medial side of the right ankle: Exhibit "1", Vol 1, p 1; 4. Similarly to (3) above, Dr Miniter's decision to remove only the infected anchor button on 4 August 2010, and not any (assumed) uninfected hardware was appropriate, according to the peer professional practice test he was asked to assume and which he identified in (1) above, in the absence of any evidence of infection on the medial side of the right ankle: Exhibit "1", Vol 1, pp 1 – 2; 5. He defended the appropriateness of Dr Miniter's decision not to make a separate incision to remove uninfected hardware on the medial side of the right ankle (on 4 August 2010), and in expressing that view, he assumed the absence of infection on the medial side of the plaintiff's right ankle was based only on Dr Miniter's external inspection of that ankle: Exhibit "1", Vol 1, p 2; 6. He considered that the surgeries of 30 June 2010 and 4 August 2010 "may have been avoided if the plaintiff elevated the right foot, rested, avoided weight bearing, and avoided an early return to work": Exhibit "1", Vol 1, p 2. The factual basis of that opinion was not supported by evidence. In that regard, Professor Sullivan seems to have simply accepted the assumptions proposed on behalf of the defendant. Furthermore, that opinion must be read subject to the opinions of the infectious diseases physicians; 7. His disagreement with the opinion of Professor Higgs, concerning the need to remove all foreign body implants and materials on 4 August 2010, was based on his view of the appropriateness of Dr Miniter's intra-operative observation of an apparent absence of evidence of deep infection at that time, which he argued, had been subsequently confirmed by the results from deep swabs taken at the operation on 4 August 2010. The logic of that opinion requires evaluation because in giving his opinions to that effect, and in his rebuttal of Professor Higgs' view that had the hardware been removed on 30 June 2010 the plaintiff would have recovered from the infection by August 2010, or if not, then not long afterwards. Professor Sullivan acknowledged that the plaintiff had a severe infection such that it is difficult to identify a timeline for recovery, where it was possible for flare-ups of infection to occur on further occasions: Exhibit "1", Vol 1, pp 2 – 3; 8. Given other evidence to the effect that residual redundant hardware left in situ may become a nidus for infection, and given Professor Sullivan's concession that the plaintiff could easily have had an infection from another source (such as a blood borne infection that had settled at a nidus) his conclusion that there was no indication for Dr Miniter to open up the medial side of the plaintiff's right ankle where there was no outward sign of infection, warrants critical consideration: Exhibit "1", Vol 1, pp 2 – 3. Professor Phillip Braslins – Report, 29 April 2019 1. In his report of 29 April 2019 to the solicitor for the defendant, which followed his examination of the clinical records, the assumptions put to him, in response to questions asked of him, and in response to a report that was not in evidence (from a Dr Mina), Professor Braslins, an infectious diseases physician with 17 years of clinical experience, and whose qualifications and experience were unchallenged, provided opinions to the following effect: 1. The plaintiff's ankle infection that was evident on 30 June 2010, was on the balance of probabilities, caused by the introduction of Staphylococcus Aureus and Pseudomonas Aeruginosa, both being high virulence organisms, which most likely occurred at the time of the surgery carried out on 10 May 2010, and which possibly could have spread from the bloodstream to the fixation devices at the time of that surgery: Exhibit "1", Vol 1, p 54. Professor Braslins' view to that effect was expressed on the balance of probabilities; 2. The plaintiff's ankle infection that was evident on 4 August 2010 was caused by Corynebacterium Jeikeium and Staphylococcus Capitus, both being low virulence organisms, which most likely initially occurred at the time of either the original trauma or the implant surgery on 10 May 2010: Exhibit "1", Vol 1, pp 54 – 55. The basis for the original trauma being a possible source of infection is unexplained in circumstances where the plaintiff's skin had not been broken; 3. The plaintiff's ankle infection detected from swabs taken at the operation on 25 July 2017, namely, Staphylococcus Aureus, was on the balance of probabilities, most likely the result of a haematogenous, that is, a blood borne seeding of the fixation device during "another later infection", for example, infection detected on 2 November 2016, which was treated with dicloxacillin, which may have partially treated or supressed a new infection of the fixation devices in the right ankle without curing that infection. That opinion was given against the background of evidence that Staphylococcus Aureus can remain dormant in a biofilm of a fixation device that has been infected. He discounted that possibility because the cultures grown from the fixation devices removed on 4 August 2010 grew Corynebacterium Jeikeium and Staphylococcus Capitus and not Staphylococcus Aureus. He argued that if the EndoButton / tightrope devices removed on 25 July 2017 had been infected on 4 August 2010, then those devices should have grown Corynebacterium Jeikeium and Staphylococcus Capitus, and not Staphylococcus Aureus when they were eventually removed in July 2017: Exhibit "1", Vol 1, p 55; pp 56 – 57. The logic of that argument requires critical consideration, including in terms of other evidence which identified the possibility that infections are capable of spreading to adjacent tissue; 4. The infections of the kind incurred by the plaintiff can occur notwithstanding that an appropriate level of care had been exercised during surgery, and without negligence, where infection is a known complication of the treatment of fractures, despite all available preventative steps being taken: Exhibit "1", Vol 1, p 56; 5. Even where surgery of the kind performed on the plaintiff on 10 May 2010 was performed appropriately, with aseptic technique and with prophylactic antibiotic cover, there is nevertheless a 1 – 2 per cent risk of infection in respect of surgery of this type which involved the installation of fixation devices to repair a closed fracture: Exhibit "1", Vol 1, p 56; 6. On the question of whether it was appropriate for Dr Miniter to have left the medially situated residual hardware in situ in 2010 in order to avoid the risk of infection or cross-infection from the laterally situated and infected hardware, Professor Braslins considered that in the absence of any clinical or laboratory evidence of infection from December 2010 to May 2017, it would be reasonable to leave the devices in place until fracture union had occurred, and he opined that many of his infectious diseases physician colleagues would agree with him on that point: Exhibit "1", Vol 1, p 57. The logic of that opinion must be examined from two analytical perspectives. The first perspective appears to have been based on impermissible hindsight considerations involving the period December 2010 to May 2017, when the correct perspective of a liability analysis is a prospective one as at 4 August 2010. The second perspective, namely a causation analysis, permits a hindsight analysis: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124]; 7. He undertook a detailed analysis of a report dated 18 May 2018 from a Dr Mina: Exhibit "1", Vol 1, pp 57 – 60. Since Dr Mina's report was not tendered in evidence in these proceedings it is therefore not necessary to further consider that aspect of his analysis in these reasons; 8. In conclusion, Professor Braslins stated: "CONCLUSION In my opinion, the Staphylococcus aureus osteomyelitis infection which occurred in July 2017 was a new infection and was not a late complication of infection which occurred in 2010. The infection in July 2017 occurred as a result of haematogenous (that is, blood borne] seeding of the retained endbutton/Tightrope fixation devices during the skin infection diagnosed by Dr Lowe on 2 November 2016. Removal of the endbutton/Tightrope fixation devices in 2010 would not have substantially reduced the risk of a subsequent (new infection] because the majority of retained fracture fixation devices do not become infected even when there is a Staphylococcus aureus blood stream infection. The endbutton/Tightrope devices removed on 25 July 2017 were not contaminated (that is, infected] in August 2010 because when they were removed in July 2017 they grew Staphylococcus aureus. They did not grow the Corynebacterium jeikeium and Staphylococcus capitis which were the cause of infection of the fixation devices that were removed on 4 August 2010. If infection of the devices removed in August 2010 was the cause of infection of the endbutton/Tightrope devices removed on 25 July 2017 then Corynebacterium jeikeium and Staphylococcus capitis should have grown from these devices in 2017, not Staphylococcus aureus." [Exhibit "1", Vol 1, p 60] The plaintiff must show that opinion, particularly the notion of a new infection, dis-applies in this case. Joint report by Professor Higgs and Professor Sullivan 1. Professor Higgs and Professor Sullivan convened a joint meeting conducted by a telephone link on 18 October 2019 in order to address a series of 10 questions that had been posed to them for their joint consideration. Their joint report of that meeting was in evidence: Exhibit "1", Vol 1, pp 184 – 192. Agreements reached between Professor Higgs and Professor Sullivan 1. Excluding matters based on assumptions as to what might have constituted widely accepted peer professional practice in Australia in 2010, as that standard of assessment was not an available defence in these particular proceedings, Professor Sullivan and Professor Higgs agreed on the following remaining matters that were material to the consideration required: 1. The obligation of a surgeon, post-surgery, in reporting on the course and outcome of an operation to the patient whilst the patient was in recovery, is to ensure that the patient is told what has, and what has not been removed at the operation: Q5 at Exhibit "1", Vol 1, p 190. The question of what report, if any along those lines, was sent to the plaintiff's general practitioner by way of hand-over of care correspondence, was not raised, identified or tendered in the evidence in this case; 2. If the plaintiff had been told, after the completion of the 30 June 2010 surgery, that all residual indwelling hardware had been removed, that would not have been an accurate statement of fact: Q6 at Exhibit "1", Vol 1, pp 190 – 191. That statement applies equally to the surgery performed on 4 August 2010; 3. If the plaintiff had been told, after the completion of the 30 June 2010 surgery, that all hardware had been removed, he should also have been told that the (medial) EndoButtons had also been removed: Q7 at Exhibit "1", Vol 1, p 191; 4. After the operation performed on 30 June 2010, the EndoButtons were no longer performing any useful function. That fact on its own would not justify their retention when the infected plates and "wires" were removed: Q9 at Exhibit "1", Vol 1, p 202. I note that the use of the term "wires" was specifically eschewed by Dr Miniter: T119.27 – T119.35. Disagreement that remained between Professor Higgs and Professor Sullivan 1. The first question upon which Professor Sullivan and Professor Higgs disagreed, concerned Dr Miniter's claimed justification for not removing the residual redundant medical hardware on 30 June 2010: Exhibit "1", Vol 1, pp 185 – 186. In that regard: 1. Professor Sullivan's argument in support of Dr Miniter's approach in only removing the anchoring devices and not the plates and screws on 30 June 2010 was that, at that time, it was too early to remove the plate and screws because of the need for fracture healing, and because of the clinical view taken by Dr Miniter that there was a clear indication of infection in the tightrope anchors, which justified the more limited removal of only the latter of those devices, and not all of those devices. The stated basis of Professor Sullivan's view to that effect was that Dr Miniter had acted in a manner consistent with widely accepted peer professional opinion and competent professional practice in Australia in 2010, which was no longer of determinative relevance in this case. Instead, the correct analytical focus was the reasonableness of the action taken in the circumstances; 2. In contrast, Professor Higgs considered that if part of the device was to be removed on 30 June 2020, this would render the remaining components of the device ineffective, and therefore the lack of fracture union at that point was an irrelevant consideration because the stability of the fibula would not have been maintained after such removal. He made some further points. First, the devices should be considered as a whole when considering device removal. Secondly, if there is infection in one area, as it is all in continuity (presumably being a connecting tightrope and tracking tunnel) "infection in one part is quite easily transferrable to the other"). 1. The second question upon which Professor Sullivan and Professor Higgs disagreed, concerned Dr Miniter's justification for only removing the lateral hardware on 4 August 2010, thus leaving the medial EndoButtons in place: Q2(c) at Exhibit "1", Vol 1, pp 186 – 188. In that regard: 1. The framing of the answer to that question, the central focus of which was based on considerations of peer professional practice rather than what was reasonable in the circumstances, is a misdirected inquiry in this case, as explained at paragraphs [49] to [53] above; 2. Professor Higgs maintained the view that the whole device should have been removed on 4 August 2010 when it was known that other parts had been affected by infection, and he considered that as Dr Miniter had not conducted an open inspection of the parts of the device on the medial side, "he had no reason to say there was not an infection in that area"; 3. In contrast, based on Dr Miniter's view that an external inspection of the medial side of the plaintiff's right ankle revealed no sign of infection, Professor Sullivan in effect said that it was not appropriate to open the medial side to remove the residual EndoButton on that side. 1. The third question upon which Professor Sullivan and Professor Higgs disagreed, was a matter of what should be seen to be consistent with competent orthopaedic practice. The point at issue was whether an orthopaedic surgeon would always remove all foreign material irrespective of considerations of managing stability and the extent of infection, either on the basis that Dr Miniter considered there was no evidence of infection on the medial side, or on the basis there was no evidence as to whether the material on the medial side was infected or not: Q3(a) at Exhibit "1", Vol 1, pp 188 – 189. In that regard: 1. Professor Higgs considered that once a decision had been made to remove all the hardware on the lateral side on the basis of an identified infection in that region, it would have been prudent practice on the removal of that hardware to then undertake a surgical investigation for the presence or absence of infection on the medial side, and in that regard, it would have been consistent with competent practice at that time to remove any such medial hardware; 2. In contrast to the above view, Professor Sullivan considered that competent orthopaedic surgeons would not always remove all foreign material where it was considered there was no evidence that the material had become infected or where there was no evidence as to whether or not there was an infection (at the medial side). 1. The fourth question on which Professor Sullivan and Professor Higgs' disagreed, concerned the issue of whether the plaintiff would have experienced a better outcome in relation to the treatment and its complications if all the fracture fixation devices had been removed at the (4) August 2010 operation: Q4 at Exhibit "1", Vol 1, pp 189 – 190. In that regard: 1. Professor Sullivan considered that leaving the medial button in situ after August 2010 had no impact on the outcome of the plaintiff's treatment complications, noting that after surgery the plaintiff had uneventfully recovered, and that remained the case until 2017. In light of the evidence of the infectious diseases physicians to the effect that infective bacteria can lurk in the glycocalyx, I discount this aspect of Professor Sullivan's evidence; 2. In contrast with Professor Sullivan's cited view, Professor Higgs disagreed with that view, both on the basis of an argued deterioration leading to a diagnosis of osteomyelitis, and also because of the assumption to the effect that all previous surgery was satisfactory, involved an erroneous judgment. He maintained a better outcome was probable in relation to treatment and the ultimate outcome. 1. The fifth question on which Professor Sullivan and Professor Higgs disagreed, was whether it was the case that all suspected infected hardware should be removed unless it was performing another function: Q9 at Exhibit "1", Vol 1, p 191. In answer to that question Professor Sullivan and Professor Higgs relied on their earlier answers. Final comment made by Professor Higgs 1. In answer to the question of whether either orthopaedic expert had any further comment to make in general (Q10 at Exhibit "1", Vol 1, p 191), Professor Higgs stated that he was of the view that had the plaintiff been properly treated in the first place (with no specific date identified in that comment), he probably would not have required the administration of two further life threatening anaesthetics. By inference that comment appears to have been anchored on the third-last operation, which was 30 June 2010. The analysis based on the 30 June 2010 date was outwith the boundaries of the plaintiff's particularised case. Oral evidence of Professor Higgs and Professor Sullivan 1. Professor Higgs and Professor Sullivan gave their oral evidence at the same time in a concurrent expert evidence session: T154 – T208. In essence, the opinions they expressed in their oral evidence were to the same effect as their opinions in their respective reports, but with some useful added explanations. Oral evidence of Professor Higgs 1. Although Professor Higgs acknowledged that he had not personally used the ankle stabilisation device that Dr Miniter had deployed on the plaintiff (T186.15 – T186.18), and he had not operated since 2001 (T86.26), I accept his evidence that he has maintained his study of orthopaedics as he finds it invigorating: T186.43. I consider he was suitably qualified by appropriate study to enable him to understand the relevant principles of orthopaedic practise and to relevantly express his stated opinions. That view is confirmed by the content of his opinions. 2. Professor Higgs reiterated his reference to, and reliance upon, a long-established fundamental principle of orthopaedic surgery that once infection has been identified in association with a prosthetic or implant device, it is fundamental that the complete device, and not just selected components of it, be removed for the effective treatment of the infection: T154.30 – T154.49; T181.47. 3. Professor Higgs was of the view that in the context of dealing with the plaintiff's infection, all of the components of the constructed fixation device used on the plaintiff, including the polymer tightrope or suture connecting the stabilising EndoButtons on the medial and lateral sides, should be considered as one whole implant where, if any removal was required, all components should be removed: T155.1 – T155.14. 4. Professor Higgs' reasoning for that view was in substantial part based on an understanding of the intended practical purpose of the whole construct, namely to fix, keep and hold fractures in a position for healing, and to hold the ankle in a stabilised position for ligamentous healing of the diastasis to occur, where the procedure not only involved placing a plate and screws on the fibular fracture, but also involved drilling holes through both the tibia and the fibula to enable two communicating tunnels to be created through bone and soft tissues between the lateral and medial sides, thereby enabling the tightropes to be threaded through those tunnels and then tensioned with metal anchor buttons on either side of the ankle for a dynamic fixation of the syndesmosis, as distinct from a rigid fixation: T155.30 – T155.37. His view was that if those purposes were no longer being served by the implanted materials then the whole apparatus should be considered to have become redundant and should be removed. 5. Professor Higgs was of the opinion that once Dr Miniter had cut the lateral knot of the tightrope (at the operation on 30 June 2010) there was no sound reason for the tightrope device to remain in situ: T196.23. However, he noted that in the present case, the reason for removal was not only because it no longer had a function, but also because of the presence of infection in the ankle: T196.44. 6. Professor Higgs was of the view that if the decision was made to remove the infected material on the lateral side of the plaintiff's right ankle, not only should all components be removed, but if they were not all removed, then the patient should be informed accordingly as to what was actually done at the operation: T155.22. 7. Professor Higgs' reasoning for the removal of all the components on 4 August 2010 in their entirety, rather than selectively, was on the reiterated basis that once the fixation plates had been removed the whole device was rendered useless anyway. This was because mechanical tension was no longer being maintained between the lateral and the medial fixation devices, and the medial components were rendered redundant as soon as the anchoring element on the lateral side was removed, so that any previous tightrope tensioning that had been created by that apparatus then ceased: T156.1. – T156.7. 8. Professor Higgs identified a further reason for removal of the medial component at the same time as the lateral components were removed, namely, infection could have tracked or spread through the drill holes that had been created through the ankle and into the medial side: T156.9 – T156.11. He described the spread of infection as a progression, through areas where the tissues look normal, to where there is evidence of severe infection and osteomyelitis: T182.14. The process of infection spread that Professor Higgs was postulating was that of a spread along the line of the polymer tightrope but not yet reaching the medial side, although it had already spread through the fibula through the interosseous space, and could have been well on the way to reaching the tibia: T201.45 – T202.7. His opinion was that this would have been the natural route, elsewhere described as a highway, following that line, and spreading medially: T202.39. 9. In that regard, Professor Higgs was of the view that by operating and inspecting on the lateral side of the ankle at the time of removal of lateral hardware, if Dr Miniter had made an external visual examination of the medial side, he would have had no idea at that time as to whether or not there was any infection on the medial side, as an external examination would have provided an insufficient insight into that question: T156.12 – T156.26. He said that an incision should have been made on the medial side for that reason: T156.40. 10. Professor Higgs then went on to stress a further point, namely, if the medial hardware had been removed at the time the other elements of hardware had been removed, then in accordance with the fundamental principle that he earlier identified, "there certainly would not have been the chance of any infection on the medial side had [Dr Miniter] removed the entire device…": T156.14 – T156.16. That question must be revisited in connection with an examination of the causation issue raised in this case as the bloodstreaming mechanism of infection must also be considered as a possibility. 11. In response to the defence suggestion that at the time of removal of lateral hardware, it was better not to surgically disturb the medial side as there was no apparent evidence of infection there, and because to do so would risk cross-infection, he stated that, because the braided tightrope structure, or, as I interpolate, its remnant piece, was "a very suitable environment" for transmitted infection to occur, it was even more important to take out the whole of the construct in the totality of its component parts: T156.45 – T157. 12. Professor Higgs said that the fact Dr Miniter had seen suture-like fibres in the base of the tightrope tunnel from the lateral side (where I interpolate, those residual fibres must have related to a connection with the residual medial EndoButton), this further supported the case for taking the fundamental approach to device removal that he had earlier identified: T157.14 – T158.19. 13. In that regard, the actual quote from Professor Higgs' evidence was as follows: "And it's my understanding that Dr Miniter should have removed the entire device in the event that it was probably the case that infection could have tracked through the drill hole and the, and the construct into the medial side. He had no idea whether or not there was any infection on the medial side and as far as I'm concerned, he made no attempt to determine whether there was any, any infection or not on the medial side. But there certainly would not have been the chance of any infection on the medial side had he removed the entire device, and that's a fundamental orthopaedic surgical principle." [Emphasis added] [T156.9 – T156.16] 1. The emphasised text of the last sentence must of course be read subject to the expert evidence given by the infectious diseases specialists who gave evidence on matters of causation. 2. An available conclusion to be drawn from the above summary of Professor Higgs' evidence was that there was a risk of infection spreading from the lateral side of the ankle to the medial side along the route of a drilled hole, elsewhere described as a tunnel that connected the two areas, in circumstances where a retained metallic component could serve as a nidus for infection without necessarily showing signs of infection on a purely external examination, in the context of a post-operative history of difficult to control infection having already occurred in the right ankle. 3. Professor Higgs clarified the time that would normally be taken for bony union to occur, which would influence fracture stability with regard to timing for hardware removal. He considered that at the time Dr Miniter first explored the plaintiff's surgical wound and found pus, this was some seven or eight weeks post-injury, and given that collagen takes three weeks to form and six weeks to mature, and given Dr Miniter's operation report made no mention of any fracture instability on his intra-operative examination, Professor Higgs said that the evidence suggested to him the fracture would probably have been stable and could have sustained plate removal by June 30, 2010: T192.40. 4. Although that 30 June 2010 date is outside the terms of the plaintiff's particularised case, it is nevertheless a relevant baseline for the consideration of the surgical events that occurred on 4 August 2010. Oral evidence of Professor Sullivan 1. Professor Sullivan's evidence must be read in light of his concession to the effect that he had no professional experience in the actual use of the particular knotted version of the EndoButton construct that was used by Dr Miniter to treat the plaintiff in this instance because he considered there were reports of problems with that system: T180.5. His experience was with the knotless version that was developed later. That experience commenced after 2010. However, it is plain that he too was suitably qualified to relevantly express opinions on the orthopaedic issues raised in this case. 2. Professor Sullivan said that he had cumulative experience with hundreds of professional athletes as well as patients from the general population, in which he has used the knotless device, and he has lectured and spoken about it at international meetings: T179.45 – T179.50. Therefore, his evidence cannot be dismissed as lacking a relevant factual foundation from within his own experience as the concepts of the different types of device were similar. 3. However, Professor Sullivan's evidence must also be read in light of a series of general concessions which he made to the effect that: 1. Any implant can get infected: T180.29. In that regard, he cited an instance from within his own experience in using the knotless EndoButtons where a delayed infection occurred after a button had rubbed to the point of developing an associated infection, and in that instance, he did not remove that medial device: T180.35. In my view, that explanation was of limited if any comparative relevance to this case, as Professor Sullivan's brief description of his management of that problem did not seem to sufficiently equate to the problem of the co-existence of an infection on the lateral side of the kind that confronted Dr Miniter when he saw the plaintiff on 30 June and 4 August 2010; 2. As a general proposition, it is standard practice to remove hardware from a joint that has been infected, and in that situation there would have to be a good reason not to remove such hardware: T173.7 – T173.16; 3. If indwelling hardware is no longer performing some functional utility, then in general, it should be removed, as it could remain as a possible nidus or harbinger for future infection: T171.34 – T171.38; 4. The general orthopaedic practice is to remove hardware in an ankle joint if it is indicated, and not simply just because it is there: T171.22 – T171.32; 5. In this case, he thought it was appropriate to remove the infected lateral plate and screws once the fracture had united: T172.16 – T172.37. In the context of the postulated plate removal date of 30 June 2010, Professor Sullivan elsewhere in his evidence added that the worse thing one could do to a fracture is to remove a fixation plate if the fracture has not united in the presence of infection, as this would lead to a worse outcome: T195.40; 6. Prior to 30 June 2010, after the plaintiff had been treated with antibiotics it was possible that infective organisms could have still remained on the retained hardware comprising the braided suture or cable connecting the lateral EndoButtons, albeit that such an infection might have been suppressed or covered by a biofilm: T177.34 – T177.49; 7. It was quite possible that bacterial infection could spread along the braided tightrope component of the system: T177.34 – T177.48. 1. Specific to this case, Professor Sullivan conceded that it was acceptable for Dr Miniter to have removed the plates and screws on 4 August 2010 because they were infected: T175.42 – T175.46. However, he also said that it was acceptable to leave the medial EndoButton and residual tightrope in situ because they were not infected: T175.48 – T176.1. That opinion bears close examination. The emergent question is, acceptable to whom, in terms of who bore the burden of the risk involved in such a decision. 2. In that latter regard, Professor Sullivan's explanation for retaining the medial EndoButton in situ was clarified in his evidence, as follows: "CAMPBELL: But you had no way I want to suggest to you, or that Dr Miniter had no way to know whether in fact there had been an infection of that cable and of that medial EndoButton when he went into perform the surgery on 4 August 2010, did he? WITNESS SULLIVAN: Are you familiar with the EndoButton? CAMPBELL: I've seen a video of it, that's about it. WITNESS SULLIVAN: Okay, so-- HIS HONOUR: No, you haven't actually because the video that was shown to the Court was of another device which Professor Miniter agreed was of similar concept and effect, but the parts were different. CAMPBELL: Not the medial button, as I understood the agreement your Honour. HIS HONOUR: While we've interrupted the flow Mr Campbell, page 47 of exhibit 1 contains the letter of instruction to Professor Sullivan and at paragraph 4 on that page, the relevant question appears in relation to the surgery on 4 August 2010: "In your opinion, was Professor Miniter's decision to remove only the infected hardware, plate and screws and not any uninfected hardware, EndoButtons consistent with widely accepted peer professional opinion as complete competent professional practice in Australia in 2010. Please provide reasons". That seems to be the source of Professor Sullivan's commentary. CAMPBELL: Of course, thank your Honour. WITNESS SULLIVAN: So can I just - so the EndoButton, it looks like a Nutri Grain. I'm not sure if you're familiar with breakfast cereal but-- CAMPBELL: Yes. WITNESS SULLIVAN: --and it's about the size of Nutri-Grain and on the medial side, so we're talking about a different bone, the tibia. When the EndoButtons inserted it sits just under the skin. It's easily felt. In fact, there's nothing hiding it below the skin. It's just skin, EndoButton and tibia bone. So if it's infected, it would be very painful and very tender. CAMPBELL: You're also aware that apart from just the button, the retained hardware in the construct included the-- WITNESS SULLIVAN: Mm-hmm. CAMPBELL: --the braided cable which would have otherwise - I think it's called a TightRope between the two end buttons when it was put in there and the evidence from Dr Miniter is that he left that in there. Do you understand that? WITNESS SULLIVAN: Yes. CAMPBELL: Did you understand that when you were preparing reports? WITNESS SULLIVAN: Yes. HIS HONOUR: Just before you go on. The second last answer Professor Sullivan, you said that it would have been obvious according to it being very painful and very tender if infected. I take it that pain requires a pain response from the patient on palpation, but is tenderness something that is observed or deduced in the same way or is it in an objective finding? WITNESS SULLIVAN: If something infected it's usually - there's pain associated with it and maybe redness, swelling. HIS HONOUR: The observation of tenderness, is that something that is deduced from the patient reaction whilst conscious or can it be a conclusion reached on intraoperative examination under anaesthetic? WITNESS SULLIVAN: No, not under anaesthetic, no, no. It's - you've got to be conscious." [T176.4 – T177.28] 1. Paraphrasing the effect of his evidence, Professor Sullivan was of the view that the decision to remove possibly infected hardware involves consideration of a possible associated morbidity because more damage could occur on removal compared to if it was left in situ: T178.2 – T178.7. That evidence did not include a balanced weighing of the risks from infection. 2. Professor Sullivan explained that a decision for removal of hardware must in this case take into account that it involves trying to remove a thread which was possibly adherent to adjacent tissues, effectively passing across a gap between two bones. To remove it required having to drill a bigger hole to get it out because it was still attached to the medial side. In that regard, on his view of what Dr Miniter had before him, Dr Miniter had at the time made the appropriate and perfectly reasonable decision: T178.8 – T178.14. That view is not the end point of the analysis as the plaintiff was entitled to have a say in his care if that was the analytical pathway. 3. Professor Sullivan's basis for that view was that there was no evidence of an infection on the medial side on 30 June 2010 and 4 August 2010: T178.16 – T178.23. This begs questions such as how that conclusion could have been reliably determined in the circumstances of that examination, and was such an approach acceptably reasonable in the circumstances, given the plaintiff's state of infection at those times. 4. Professor Sullivan said that the problem in removing the plate and screws on the fibula was the concern at the time that the fracture had not healed. He considered that to be a perfectly acceptable and plausible reason for leaving the plate and screws in situ on 30 June 2010: T179.5 – T179.8. 5. Professor Sullivan did not accept the proposition that, absent visible signs of infection at the surgery on (4) August 2010, it was perfectly safe to remove the medial EndoButton and the associated braided cable: T179.27 – T179.29. His stated reasoning for that view was as follows: "WITNESS SULLIVAN: Every time you make a cut in any patient risks being infected. In my view, if there's no indication to remove something and make a separate incision on a different bone, then I don't think that's - it's - in my practice, I wouldn't do that." [T179.35 – T179.38] 1. I take the statement cited above to be a general one. It was not a proposition that is specific to this case. This is because it did not adequately take into account or analytically deal with an available counter-balanced view to the effect that, to leave a device of the kind contemplated in situ, without having an identified plan for future management by removal, and in which it was made clear to the plaintiff and to his general practitioner as to what the necessary action should be if adverse consequences ensued, was a risk-laden course. 2. Such adverse consequences included a possible recrudescence of infection, which could lead to other difficulties, especially since a communication tract or tunnel to a known area of infection on the lateral side had been established and would remain, and had within it, some residual thread, cable, suture, or tightrope, by whatever name it was being referred to at the time, which itself was considered to be a very good and suitable environment for transmitting infection. 3. Professor Sullivan described the manner in which the connecting "rope" between the ankle bones would have to be removed as requiring a bigger hole to be drilled through and between the two bones. He said this involved the risk of spreading infection "even more" if this was done from a tunnel drilled on the lateral side: T197.15 – T197.30. 4. Professor Sullivan agreed that one could try removing the braided cable, thread or rope from the medial side (T198.38), but as I understand his evidence, this would have also required drilling into the ankle: T208.16 – T208.27. On my understanding of his evidence on this point, neither approach would have been easy: T198.48. However, difficulty per se is not the determining factor where to do nothing would invite other risks. At the very least, the patient would have to be included in the decisionmaking process on that issue. 5. Either way, the debridement process would have required cleansing of debris using a high pressure pulsed fluid device: T198.3. It seems that device would have been used in any event when debriding any debris intra-operatively in such circumstances. 6. Professor Sullivan described what he considered Dr Miniter's thought process would have been on the prospect of opening up the skin on the medial side to remove the medial disc, as follows: "WITNESS SULLIVAN: And, and the thought process would be by opening up the medial side that you could actually either create an infection. Remember in making cut, every time you cut yourself, there's a risk of infection or that the - spreading the infection. So it's, it's a, it's a decision that, that you have to make at the time and he made a decision not to remove it and I think that's a rationale decision to make at the time." [T199.18 – T199.23] 1. The above evidence will be analysed in determining the relevant facts and whether a relevant breach of duty of care has occurred in this instance. Joint report by Professor Guinness and Professor Braslins 1. Professor Guinness and Professor Braslins convened a meeting by telephone on 8 October 2019 in order to address a series of 19 questions that had been posed for their joint consideration. The joint report of that meeting was in evidence: Exhibit "1", Vol 1, pp 194 – 229. The report also annexed a number of scientific articles for reference purposes: Exhibit "1", Vol 1, pp 210 – 229. Those articles, of themselves, do not serve as a substitute for expert evidence. 2. The joint report was based on a series of assumptions advanced on behalf of the defendant as to the treatment provided by Dr Miniter on 10 May 2010, 30 June 2010 and 4 August 2010. Those assumptions included the following text: " 30 June 2010 surgery 3. Professor Miniter formed the opinion that there was a clear infection in the anchors but that there was no clear infection in the plate, screws or endobuttons. Therefore, Professor Miniter removed the infected hardware only, being the 2 TightRope anchors. 4. Professor Miniter also considered it too early to remove the plate as the fibula fracture had not healed sufficiently to allow plate removal whereas there was no issue in removing the lateral part of the Tightrope device as ligamentous healing of the syndesmosis had taken place. 5. The remaining hardware in the plaintiff's ankle from the May 2010 surgery at this point in time was the plate, screws and metal endobuttons. 4 August 2010 surgery 6. Professor Miniter deliberately took a lateral approach and did not explore the medial side of the plaintiff's joint. There was a clear infection in the plate and screws. Therefore, Professor Miniter removed the infected hardware only, being the plate and screws. 7. As the medial devices were at no time involved in any suspected infection, Professor Miniter did not remove them to reduce the chance of contaminating and causing osteomyelitis in an area which had at no time been clinically involved. Further, Professor Miniter considered that removing uninfected hardware would require an additional incision which meant a greater risk of infection. 8. The remaining hardware in the plaintiff's ankle from the May 2010 surgery at this point in time were the metallic endobuttons. 25 July 2017: 9. There was a clear infection in the metallic endobuttons on this occasion. Therefore, Professor Miniter removed the metallic endobuttons. 10. There was no remaining hardware in the plaintiff's ankle from the May 2019 (sic) after this surgery. Each operation 11. Professor Miniter advised the plaintiff after each operation that it was important that he not weight bear, elevate the limb and rest. The plaintiff was advised that he would require time off work to allow for proper recovery." [Exhibit "1", Vol 1, pp 196 – 197] 1. The assumption numbered 8 as cited in paragraph [224] above, was plainly incomplete. This conclusion arises from the evidence of Dr Miniter because of his evidence that a component of the remaining hardware left in situ on 4 August 2010, namely fibrous thread remnants, was part of the tightrope structure which apparently remained connected to the medial EndoButton. 2. As a result of their meeting on 8 October 2019, the experts agreed on the following matters: 1. At the time of the original operation on 10 May 2010, the inserted fixation devices comprising the fixation plate, the associated screws and the anchors, the connecting sutures and the EndoButtons were inoculated with the organisms Staphylococcus Aureus and Pseudomonas Aeruginosa, and those organisms were found to have been present in the plaintiff's right ankle at the surgery carried out on 30 June 2010: Exhibit "1", Vol 1, p 198, answer to Question 1(a); 2. The infections incurred by the plaintiff can occur even if the operating surgeon took reasonable precautions to prevent infection, and the experts expressed concern that polymicrobial infection or sequential hospital acquired infections, raised questions about hospital practice of infection control: Exhibit "1", Vol 1, pp 205 – 206, answer to Question 15. That said, whilst this was not part of the case he sought to make against Dr Miniter, it is plainly relevant to a causation analysis; 3. At the operation on 4 August 2010, the additional organisms that were identified as comprising Staphylococcus Capitus and Corynebacterium Jeikeium could have been introduced either at the original surgery on 10 May 2010, or on 30 June 2010. Either way, on 4 August 2010, they were causing a deep infection involving the indwelling fixation hardware: Exhibit "1", Vol 1, p 198, answer to Question 1(b); 4. There was uncertainty between the experts over whether the Staphylococcus Aureus infection found at operation on 25 July 2017 was as a result of a latent primary seeding and colonisation at the operation site on 10 May 2010, or alternatively, whether such infection occurred as a result of bloodstream seeding, which is a well-recognised phenomena: Exhibit "1", Vol 1, p 199, answer to Question 1(c); 5. From the limited, that is non-surgical, specialist perspective of the infectious diseases physicians, they considered that the obligation on the treating surgeon is to clearly and accurately document the surgical procedure that was performed and to communicate this information, with Professor Guinness adding that such communication should include communication to the patient: Exhibit "1", Vol 1, pp 200 – 201, answer to Question 4. That opinion stems uncontroversial; 6. It was common ground that not all of the hardware inserted on 10 May 2010 was removed on 30 June 2010: Exhibit "1", Vol 1, p 198, answer to Question 5; 7. In general, from an infective diseases perspective, all infected hardware should be removed unless it is required to remain as it is performing another function: Exhibit "1", Vol 1, pp 202 – 203, answer to Question 9; 8. As at 4 August 2010, the retained EndoButtons had no remaining function: Exhibit "1", Vol 1, p 203, answer to Question 10. 1. Following their meeting on 8 October 2019, the infectious diseases experts remained in disagreement on the following matters: 1. Whilst the experts generally agreed that non-functioning hardware should be removed, sometimes a decision may be made to leave it in situ in an uninfected site. The specific area of disagreement between the experts on this issue was identified as follows: 1. Professor Guinness considered that the medial EndoButtons should have been removed (on 4 August 2010) because there had already been an infection in the operative zone: Exhibit "1", Vol 1, p 203, answer to Question 10; 2. Professor Braslins noted that redundant hardware is often left in place because: "Removing it causes more trouble than it is worth": Exhibit "1", Vol 1, p 203, answer to Question 10. That opinion necessarily raises the question : trouble and worth for whom?; 1. Whereas Professor Braslins considered the Staphylococcus Aureus infection isolated from the surgical swabs taken on 27 July 2017, was a new infection because it had not been isolated from surgical samples collected on 4 August 2010, which in his view meant the infection evident on 30 June 2010 had been successfully treated, Professor Guinness disagreed, saying the 2017 infection was not a new infection, but was instead due to a latent Staphylococcus colonisation of the medial EndoButton. He was of that view because Staphylococci "have the capacity to lie dormant for many years, as was warned by Dr Senanayake on the 14th of November 2010 when writing to Professor Miniter": Exhibit "1", Vol 1, pp 203 – 204, answer to Question 11. The parties agree that the 14 November 2010 date is a mistaken reference to Dr Senanayake's letter to Dr Miniter dated 3 November 2010: Exhibit "E", p 3; 2. Whilst Professor Guinness considered that the four species of infections found at the fracture site on 4 August 2010 indicated a need to remove all hardware at the surgical site, he was of that view because the level of contamination and subsequent infection must have been considerable for four different bacteria to have become involved, which he considered should have led an orthopaedic surgeon to conclude that all hardware should be removed. On that topic, Professor Braslins acknowledged that the final decision about hardware removal rests with the treating orthopaedic surgeon, noting that: "From an infectious diseases point of view, the number of species of bacteria does not influence my advice that in an ideal world, all hardware should be removed – where practical": Exhibit "1", Vol 1, pp 204 – 205, answer to Question 13; 3. On the question of whether it was reasonable for Dr Miniter to leave the medial hardware in situ in the plaintiff's right ankle (on 4 August 2010) on the presumption that it was uninfected: 1. Professor Braslins considered that from the perspective of his specialty it was reasonable to leave it in situ because removing a presumptively uninfected piece of hardware may have resulted in a worse outcome: Exhibit "1", Vol 1, pp 206 – 207, answer to Question 17. This raises the question as to whether that presumption had a soundly reasoned basis; 2. Professor Guinness disagreed with Professor Braslins, arguing standard practice required that where it was possible, a surgeon should operate to remove all hardware from infected sites where it no longer had a role. He took that view because one could not exclude (by visual inspection only) that there was no infection in the medial compartment. Whilst he acknowledged that the removal of the medial EndoButton on 4 August 2010 may have resulted in an infection of the medial compartment, the procedure could have been safely delayed for a month, and then performed separately as an elective clean procedure, with minimal risk of infection. In that regard, Professor Guinness noted: "The risk of infection at a later time has been foreshadowed by the ID consultant (Dr Senanayake) advising Professor Miniter and infection ultimately did occur at the site of the retained endobutton with osteomyelitis": Exhibit "1", Vol 1, pp 207 – 208, answer to Question 17. Oral evidence of Professor Guinness and Professor Braslins 1. Professor Guinness and Professor Braslins gave their oral evidence at the same time in a concurrent expert evidence session on the fourth day of the trial: T225 – T262. Professor Braslins gave his evidence by an audio-visual link from Queensland without difficulty. The oral testimony of those experts clarified aspects of the opinions they had set out in their respective reports: T226.14. 2. Both infectious diseases experts agreed that syndesmosis fractures were associated with a higher risk of infection because of mobility issues and a failure to heal because of mobility. Furthermore, studies of the tightrope system show that when those devices were used, they had a lower rate of failure to heal compared to previous fixation devices: T257.16 – T257.24. 3. In his oral evidence, Professor Guinness reiterated his earlier view as set out in the conclave report to the effect that if at the operation on 4 August 2010 there had been a concern over contamination of the medial side of the plaintiff's right ankle, which had hitherto been left unopened (since 10 May 2010), a hardware removal procedure could have been carried out a month later as an elective clean procedure, once the Corynebacterium Jeikeium infection had been controlled: T248.45. 4. On that topic, the experts were in agreement that there was a known risk of about 1 to 2 per cent of wound infection in performing surgery to remove an uninfected device: T250.10 – T250.12. 5. The experts remained at issue on whether there had been a bloodstreamed infection in the period between 3 November 2010 and mid-2017. In his oral evidence, Professor Braslins explained that in arriving at his conclusion that the Staphylococcus Aureus infection was on the balance of probabilities due to a bloodstreamed infection, he had weighed the following factors into account in order to reach that conclusion: 1. Staphylococcus Aureus had not been isolated in August 2010 although it was isolated in June 2010. This led him to the conclusion that the organism had been eradicated after August 2010: T226.21 – T226.30. That evidence must be read in the context of doubts that emerged concerning the reliability of intra-operative sampling procedures, of which the evidence was scant; 2. The plaintiff had remained well between 2010 and 2016. He developed cellulitis in 2016 which was treated with an oral antibiotic. The fact that cellulitis can be associated with a transient bacterial bloodstream infection led Professor Braslins to believe that the ankle became seeded with a new infection after August 2010, namely in 2017. He held that view because Staphylococcus Aureus was not grown from deep surgical specimens in August 2010: T226.33 – T226.40. That view was necessarily dependent upon the nature, location and extent of the intra-operative swab samplings, of which the evidence was limited; 3. A delayed infection cannot occur if the source of infection has been eradicated: T227.7. That view seemed not to take into account the possibility of recrudescence of a dormant infection that might have given the appearance of eradication; 4. He added that whilst the adequacy of intra-operative sampling may be a determinant of whether Staphylococcus Aureus could be cultured from intra-operative swabs, his view was that because that organism was so virulent, he argued that more than 50 per cent of the time, it would be cultured. This of course depended upon the nature, location and extent of the sampling that was undertaken, of which the evidence was scant. As I understand his argument, this indicated that factors such as dormancy and sampling errors were therefore unlikely occurrences in this instance: T228.7 – T228.18. 1. Professor Guinness remained unconvinced of Professor Braslins' argument in support of an infection by means of bloodstream seeding because of a number of relevant and variable factors. These were, first, the failure to culture a bacterium from a surgical sample does not necessarily exclude the presence of that bacterium from the surgical site, secondly, there can be a question of adequacy of the intra-operative sampling, thirdly, the bacterium might have been suppressed rather than eliminated due to the effect of prior antibiotics, and fourthly, the Staphylococci organisms have a great capacity for dormancy if there is an available foreign body on which they can take refuge: T227.21 – T227.26. An issue here is that the redundant ankle hardware was not the only foreign body the plaintiff had, as he had shoulder surgery in 2014. 2. On the question of reliability of intra-operative sampling in the context of a causation analysis, the oral evidence of the infectious diseases experts included some discussion which identified issues of uncertainty over the sampling and the labelling of swabs, and possible mixed samples being accumulated on the one swab: T231.41. Professor Braslins and Professor Guinness agreed that infectious diseases doctors rarely go into the operating theatre to direct or to collect samples themselves, and they are most often consulted after infection problems are identified: T230.21 – T230.37. Those matters were raised to suggest that an examination of the clinical records and the sampling records alone could not clarify any questions as to adequacy of sampling, whether mixed sampling had occurred, or questions as to the system for labelling of samples. The doubts and uncertainties raised in that discussion were not clarified by the calling of any factual evidence. This raised the spectre that the infectious diseases experts had been asked to make speculative assumptions on matters of such detail which could be important to the analysis. 3. Professor Guinness made an observation of interest to the analysis concerning the state of the infection as at 30 June 2020, as follows: "WITNESS GUINNESS: Reverting to your original question about the first swab, which was simply "swab right ankle". In my experience over, you know, many decades of dealing with, in particular surgeons, one, you know, gets these, you know, rather vague identifiers; you know, right ankle. Well, where in the right ankle; lateral, medial, superficial, deep? In this particular case this was the second operation that was performed. Infection was already well established. Pus had already been collected and cultured by the Jindabyne General Practice. And staph aureus and pseudomonas had already been identified as the offending bacterium. In fact, the astute doctor down there, when collecting the swab, you know, said, "It smells of pseudomonas." Not many GPs would be able to do that, but pseudomonas smells like boiled sweets. For those of us who are old enough to remember what boiled sweets smelt like. And, and so this swab may well have been taken from the skin surface because there was pus coming through the skin surface. The surgeon may have taken a swab, you know, of what he saw. On the other hand, if the, if the wound has now been prepped with, with alcohol and chlorhexidine and the, and the pus wiped away, then in fact, this staph left ankle would represent pus found within the, within the wound. If I could reflect on what we heard yesterday from Dr Higgs, he mentioned that Professor Miniter, the day before, had talked about "laudable pus". You know, and, and - which means abundant pus. It's not laudable, it's deplorable. But nevertheless it's, it's abundant and in the operation record of the tenth of the fifth - correction, that was the first clean procedure, of, of, of 30th of the sixth, it says, "No, no deep fluid and no obvious involvement around plate." There is in fact no mention of pus, laudable or otherwise, in that operation report. So, I'm wondering what happened to it. Where's it gone, or has it simply gone unmentioned? HIS HONOUR: Yes, well I'll just pause to observe here that there's obviously a difference between these swab results, which are used by the clinician in the context of managing a current condition and the use to which the lawyers will be putting these results in a hindsight analysis on causation. We just have to accept the limitations of the descriptions. They may have meant something to Professor Miniter at the time, but this was unexplored in his evidence… " [T234.45 – T235.30] Professor Guinness' commentary as extracted above highlighted the evidentiary limitations affecting the reliability of the descriptions of the locations and sequences for swab samplings in this case. 1. Professor Guinness' evidence as cited above raised an important sampling question. If Dr Miniter had intra-operatively found an abundance of pus, as stated in his oral evidence, it is a fair and relevant question to ask why an operative finding of such importance was not mentioned in the operation report, or elsewhere in other notes or correspondence reporting on that procedure. Dr Miniter's evidence of the presence of abundant pus was not challenged. It was not inherently improbable. Therefore, it should be accepted. Two comments arise. First, it suggests a severe infection was entrenched. Secondly, it raises a doubt as to what was actually sampled for pathological testing for the growth of organisms, and whether the reported results are reliable for drawing conclusions on the balance of probability. 2. Professor Braslins agreed that there was only a limited role for visual inspection (to determine whether or not wound infection was present). He said that microbiological testing was the gold standard for determining such matters: T228.48 – T228.50. However, he believed, again on the balance of probabilities, that the fact the plaintiff had remained well for seven years (that is apparently infection free), in the absence of physical findings in the interim, and in the presence of normal blood tests (which were acknowledged to have limitations as they do not always show positive results), it would be very rare, though possible, for latent infection to erupt again, although he did note that a latency of 30 years has been reported in literature: T228.50 – T229.19. 3. In contrast, Professor Guinness' view in favour of the recrudescence of a latent infection was supported by a number of factors which he identified as follows. First, the 4 August 2010 operation focussed only on the removal of the selected lateral hardware, secondly, at that time, no infection was suspected at the medial site, thirdly, the plaintiff had been appropriately treated for six weeks with IV antibiotics, followed by oral antibiotics, fourthly, on surgically opening the lateral site on 4 August 2010 there was no evidence of deep sepsis, with wound healing apparently being much improved, fifthly, there was no evidence that the in situ cut lateral end of the tightrope had been sampled, which indicated to his analysis that the intra-operative sampling may not have been "as diligent as if there was (visible) evidence of infection", and sixthly, the fact that in 2017, frayed remnant filaments of the redundant tightrope were present at the site in association with a re-appearance of Staphylococcus Aureus. In the opinion of Professor Guinness, all of those elements, in combination, pointed to the likelihood of an infective mechanism of recurrence of an earlier infection rather than a mechanism of bloodstream seeding: T229.40. 4. Professor Braslins considered that given the indolent (dormant) nature of the Staphylococcus Capitus and Corynebacterium Jeikeium organisms which were isolated (on 4 August 2010), if a Staphylococcus Aureus and Pseudomonas Aeruginosa infection had been present (on 4 August 2010), he "would not expect there to be a normal appearing joint": T230.40 – T230.43. Here, I would interpolate that this would appear to depend upon the timing of a recrudescence, if that was the mechanism which was responsible for the outbreak of infection in 2017. 5. Professor Guinness accepted (from his review of the records) that the Staphylococci and the Pseudomonas, if not eradicated, would certainly have been suppressed (as at 4 August 2010), but overall, he referred back to the common ground that had been reached between himself and Professor Braslins during the conclave, namely that the appearance of four bacteria at the surgical event (of 4 August 2010), suggests a significant breakdown of aseptic technique in the operating theatre (on 10 May 2010), for which the surgeon cannot be necessarily blamed, given that there would have been a number of people in the operating theatre at the time of that surgery: T230.45 – T231.18. 6. Professor Guinness made the point that the antibiotics that were prescribed for the plaintiff from August 2010 were not aimed at the Staphylococcus Aureus organism. Instead, they were aimed at the Corynebacterium Jeikeium organism, which is a much more difficult organism to eradicate, and it has a "quite variable susceptibility pattern" which is basically resistant to the antibiotics used for Staphylococcus Aureus: T240.47 – T241.2. 7. As I read Professor Guinness' evidence on the subject of testing for infection, he indicated that without clinical signs of the presence of infection in the plaintiff's ankle after 4 August 2010, and for the remainder of 2010, there would not have been any need for haematological and biochemical testing for markers of infection. His reasoning was as follows: "But you didn't because - you know, in my book, the organism was lying doggo in Dr Braslins book. The organism had been eradicated." [T241.48 – T241.50] 1. In my view, the way in which that evidence is transcribed, the punctuation gives the incorrect impression. In my view, properly understood, it should read as follows: "But you didn't because - you know, in my book, the organism was lying doggo. In Dr Braslin's book, the organism had been eradicated" 1. On that basis, Professor Guinness considered that the Staphylococcus Aureus infection, which became obvious to those treating the plaintiff in late 2010, had remained dormant for about seven years, noting that this organism had the potential to lay dormant for decades: T242.14 – T242.40. 2. Professor Guinness identified the further point that, whilst the potential for dormancy was as stated above, since the plaintiff's osteomyelitis appeared not to be well-established in this case (as at August 2010), the fact remains that it can recur (or re-appear) years "down the track". This led him to consider the plaintiff's 2017 infection was a greatly more likely occurrence in the presence of a foreign body: T242.42 – T243.2. 3. That said, Professor Guinness agreed, as a general proposition, that once osteomyelitis due to Staphylococcus Aureus has occurred, it is possible for a Staphylococcus Aureus infection to recur regardless of whether or not fixation devices remained present: T243.6 – T243.8. 4. In the presence of the legal representatives of the parties, Professor Guinness made the observation that it would be of enormous benefit to the analysis if a post-operative x-ray (which had undoubtedly been taken whilst the plaintiff was in hospital on 4(sic for 5) August 2010), was available for review as this would show the anatomy of the area at the time (after removal of the fixation plate and screws): T245.6 – T246.46. Neither party took any steps to seek to respond to that suggestion to clarify the issue raised. 5. When Professor Guinness was asked to consider the reasonableness of EndoButton retention on the presumption that it was not infected, he reiterated and emphasised the need for removal where it had been twice established that sepsis had been present in the ankle. He applied that emphasis because of the potential for the site to harbour latent infection which could cause a recurrence of infection. This added emphasis emerged because, at the time he wrote his initial report, he was unaware that not only was the medial button retained, but also a portion of the thread or suture which was attached to it, and which went through a tracking hole drilled through the tibia and the fibula, and it had been retained somewhere in there: T250.20 – T250.33. 6. Professor Braslins' comment in response to that view expressed by Professor Guinness was in terms of a risk / benefit analysis, namely, that it was within the province of the treating orthopaedic surgeon, that is, to weigh the risk of performing the procedure (thereby creating another site of infection) and the potential benefit (presumably not causing such an infection): T250.36 – T251.6. That analysis, which was expressed in terms of balance of probability, presumed an eradication of prior infection from Staphylococcus Aureus and Pseudomonas, where latency or dormancy was not part of the analysis. Reliance upon a risk/benefit analysis in this case is problematic where the person bearing the burden of the risk was not informed of the outcome of that analysis as undertaken by Dr Miniter, or of the reasoning which underpinned that analysis. 7. The basis of Professor Braslins' cited view was explored in terms of how he took the dormancy factor into account, as follows: "HIS HONOUR: When you say it should be presumed that the infection was eradicated, what allowance, if any, do you make in that conclusion, when reaching that conclusion for the prospect that there may have been dormancy of these organisms near this site? WITNESS BRASLINS: Yes, again it comes down to a risk/benefit analysis. Dormancy is possible but uncommon, rare to occur after a prolonged period of antibiotics and I take into account the clinical progress, the absence of any clinical findings, the absence of any symptoms and the normal blood tests that occurred not just in the period of treatment but immediately after the treatment was ceased and then for the next seven years. There was no clinical or laboratory evidence of residual infection." [T251.8 – T251.19] 1. Professor Braslins' point about absence of evidence must be considered in the context that there was no indication for testing in that period, as was explained by Dr Guinness. Therefore, the absence of such evidence does not exclude latency or dormancy of infection. 2. In stating his views as cited above, Professor Braslins added that dormancy does not necessarily result in relapse of infection: T251.40 – T252.24. I took that statement to be a general proposition rather than one that was specifically referrable to this case. In my view, that evidence expressed in general terms must be read in conjunction with the other evidence that suggests that residual hardware may serve as a nidus for infection, which is an entirely different consideration. 3. The above extract of Professor Braslins' evidence led to the following discussion: "WITNESS GUINNESS … Even if, however, the staphylococcus causing the infection in 2017 was not the original one and dormancy wasn't the cause of the infection, I believe the presence of a foreign body in the ankle was the prime determining factor for relapse of infection or reinfection at that site. Professor Braslins believes it may - it was most likely to be a blood borne infection. I could accept that. But the blood borne infection wouldn't have settled in that ankle if there hadn't been, I believe, foreign materials still present. That provided the focus of attack, whether it be latent staphylococci or more recent itinerant staphylococci. HIS HONOUR: Do you have a comment on that Professor Braslins? WITNESS BRASLINS: Yes, the presence of any foreign material does increase the risk of infection, but I would point to one of the studies that I quoted in my report regarding the risk of infection in the context of retained devices and in this study, the researchers retrospectively reviewed cases of staphylococcus aureus bacterium in their hospital and they found that less than 7% of patients with a fracture fixation device, or I think it might have even been artificial joints included, less than 7% of those became infected. So, although residual devices do increase the risk of infection, on - the risk is low and I think on the balance of probabilities it's less than 50%." [T252.4 – T252.24] 1. Professor Braslins was asked to consider the nature of the remnant portion of tightrope as being a structure which could harbour infective organisms. This led to the following exchanges: "CAMPBELL: We heard yesterday from Dr Miniter there's about four of these cables that make up the construct, that is the TightRope wire. And that material would be pretty attractive I want to suggest to you, to bacteria. Would you accept that? WITNESS BRASLINS: All foreign bodies can harbour organisms and the greater the surface area, the more risk of harbouring an organism, so in that sense if it's braided and has a larger surface area than a flat un-braided plastic wire, then yes, I agree with your suggestion. HIS HONOUR: Is it just the surface area or is it also the irregularity of the surface area? WITNESS BRASLINS: I'm not sure that that's been specifically scientifically studied, but that would be a reasonable hypothesis, that the irregularity of the surface would also contribute to the increased risk of organisms performing, producing glycocalyx, a slime, if you like, where they can, where they can reside. CAMPBELL: Would it be-- HIS HONOUR: Like a colony perhaps. … WITNESS BRASLINS: That would be my understanding." [T254.12 – T254.42] 1. When Professor Braslins was questioned on whether it would have been good practice to remove the remnant medial tightrope and EndoButton structures at the same time as removing the lateral plates and screws, he agreed that was so, to the extent a second or medial incision could be avoided, because a second incision for that latter purpose would then increase the risk of infection at that site in such a procedure: T255.45. 2. On the issue of whether the plaintiff's Staphylococcus Aureus infection which was found in 2017 was due to him having encountered cellulitis in 2016, in his evidence Professor Braslins raised two relevant explanations. 3. The first such explanation was as follows: "WITNESS BRASLINS: Yes. Brian Old suffered from cellulitis in 2016 following I believe a trip to Japan for some - a skiing vacation and was treated for cellulitis with dicloxacillin. Staphylococcus aureus is the most - or one of the most common causes of cellulitis and I am hypothesising that during the course of the cellulitis there was a transient bacteremia where the staphylococcus aureus entered the bloodstream and travelled around the body and lodged in the right lower leg at the site of previous surgery and five months later, it became clinically evident as an infection." [T257.42 – T257.49] 1. The second such explanation, which was based on an extract from the plaintiff's medical records, copied at Exhibit "1", Vol 2, p 437, was as follows: "So on 2 November 2016, Mr Old consulted Dr Tristyn Lowe at the Jindabyne Medical Centre with symptoms of swelling in his legs after a trip to Japan that was bilateral swelling with redness and swelling of the left foot more so than the right foot, with multiple small wounds on his left foot which he stated were from being in wet boots while travelling, and he was treated with oral dicloxacillin which is an antibiotic which is anchored against staphylococcus aureus." [T258.22 – T258.29] 1. In that context, Professor Braslins explained that the plaintiff's 2016 episode of cellulitis had its origin in over-hydration, with fluid and salt retention leading to vasodilation issues or swelling of the blood venous vessels. He explained that this had led to skin infection, for which dicloxacillin was prescribed, but in the circumstances, which involved skin wounds, there was an increased risk of entry of bacteria into the skin, and then into the bloodstream: T258 – T261. 2. I now turn to the consideration of the issues calling for decision as identified at paragraph [58] above. Issue 1 – Findings on relevant matters of fact 1. In the paragraphs that now follow, I record my findings on relevant matters of fact in the chronological context in which they arise. Plaintiff's background health 1. Prior to his injury on 1 May 2010, the plaintiff had incurred a number of other injuries and he also needed to have a number of surgeries. However, there is no evidence to suggest that before 10 May 2010, he had been adversely or injuriously affected by any infective organisms of the kind that were detected from swab samples taken from his right ankle during the various operations carried out by Dr Miniter either on 10 May 2010, 30 June 2010, 4 August 2010, or 25 July 2017. Propensity for infection to remain dormant or to spread 1. The expert evidence indicates that in the general population there are numerous infective bacterial organisms that some people can carry around with them, and which are capable of causing post-operative wound infection and osteomyelitis after they enter the bloodstream. 2. The nature of infective bacterial organisms is such that they are capable of invading healthy host tissues in the body, and in that process, the extent of an area of infection can spread to also affect nearby structures and tissues with infection that can be persistent and difficult to eradicate. 3. The nature of osteomyelitis infection is that it may give the appearance of having been eradicated by antibiotic treatment, yet it can for many decades remain dormant in or on cells, or on surgically implanted devices at various locations in body tissues, without showing observable diagnostic signs or symptoms of an active infection before a fulminant eruption occurs. Osteomyelitis may be refractive to treatment 1. Antibiotics, of various kinds, are not always capable of eradicating infectious organisms, and refractive osteomyelitis may persist and cause sepsis, including deep sepsis. It may also give the impression of eradication, only to recur at a later point in time. First operation – 10 May 2010 1. The right ankle injury the plaintiff sustained in his motorcycle accident on 1 May 2010 was severe, such that open reduction and internal fixation surgery was required to treat the fractures. That injury most probably also caused damage to soft tissues in the ankle, which increased the risk of infection in a subsequent surgical wound due to the potential for tissue breakdown. The surgery for that injury was performed properly by Dr Miniter on 10 May 2010. The plaintiff received appropriate aftercare and advice in the post-operative period which followed, including up until 4 August 2010. Foreseeability of wound infection 1. At the plaintiff's operation on 10 May 2010, it was foreseeably possible for infection of the surgical wound to occur as a result of non-negligent breakdown of aseptic technique in the hospital operating theatre through no fault of the operating surgeon. 2. Following the plaintiff's operation on 10 May 2010, there was an ever-present possibility of him developing a post-operative infection by various means that are not amenable to exhaustive definition. 3. In the present case, several potential means of infection stand out as prime potential causes. First a wound infection could have been acquired intra-operatively, which could have developed and spread, and in the process, infective organisms could have become attached to any of the component parts of the hardware that was installed to treat the plaintiff's injuries. Secondly, a blood-borne infection could have occurred and become free-moving within the bloodstream, with the infective organisms becoming attached to indwelling surgical hardware. Thirdly, wound breakdown from various causes, and resultant wound contamination, could have possibly occurred. Fourthly, some mechanisms of infection remain unknown, even though the infective organisms can be identified. 4. The ability to make accurate and reliable factual deductions from the results of intra-operative swab sampling as to when particular pathogens were present in a wound is variably dependent upon the swab sampling methods and the sampling techniques adopted, including the extent to which precision or particularity is adopted in labelling or otherwise identifying the locations from which intra-operative swabs are taken. 5. The indwelling hardware of the kind Dr Miniter inserted to treat the plaintiff's injury was capable of becoming a natural location or nidus for infectious organisms to aggregate and multiply into an infective quantity, and to then spread to other nearby tissues. 6. As a consequence of the plaintiff's operation on 10 May 2010, post-operatively, he was at risk of incurring an infection manifesting itself in his surgical wound, where such infection was capable of spreading to surrounding tissues and to any adjacent indwelling fixation devices and the individual components of such devices. He also faced the risk that any such infection, once manifest, could become recalcitrant to treatment, eradication and cure, despite aggressive antibiotic treatment. There was also a concomitant risk that even if there was an appearance of eradication, such infections were nevertheless capable of recrudescence at a later point in time. 7. According to the preponderance of medical evidence from the infectious diseases experts, at the surgery performed by Dr Miniter on 10 May 2010, the plaintiff most probably became infected with the four organisms that were ultimately grown from swabs taken at his subsequent surgeries. The precise locations, sequencing and method of taking intra-operative swabs at that time was not clarified in the evidence. 8. According to the non-controversial expert evidence, this most likely occurred due to a breakdown of aseptic technique at that surgery operation. In that regard, I accept the expert evidence of Professor Guinness and Professor Braslins to the effect that such circumstances cannot necessarily be attributed to fault on the part of any person or entity. 9. The four infective organisms that the plaintiff probably acquired on 10 May 2010, thereafter, very likely and most probably remained dormant in the glycocalyx as postulated by the expert infectious diseases physicians, until those organisms became observably actively infective as osteomyelitis at a later date, in May 2017. Post-operative recuperation in May 2010 and emergence of infection 1. Absent objective evidence recorded in the contemporaneous medical records and correspondence suggesting that, contrary to Dr Miniter's advice, the plaintiff had somehow failed to abstain from post-operative weight bearing after the 10 May 2010 surgery, I accept the plaintiff's evidence that, so far as was practicable for him to do so, he had followed the post-operative advice given to him by Dr Miniter. 2. Dr Miniter's advice to the plaintiff was to wear a protective boot, to rest, to non-weight bear, and to elevate his right foot. I also accept that whenever possible, he used a wheelchair and crutches for mobility. That said, the plaintiff developed a post-operative wound breakdown which become complicated by infection. On the explanatory evidence given by Dr Miniter, I consider that this most probably occurred because of the severity of the impact on the soft tissues affected by the trauma of the accident on 1 May 2010. 3. I consider that if Dr Miniter had a reasonable basis for forming the post-operative opinion to the effect that the plaintiff had undertaken excessive post-operative weight bearing or dependency on his right foot, he would have communicated any such belief to the plaintiff's general practitioner, including any related advice in his written communication to the plaintiff's general practitioner, for the plaintiff to desist from further doing so, as this would have been a matter which was highly relevant to post-operative care and recovery. As there is no evidence that he made any such communications to that effect, I do not accept that the plaintiff's infection was due to weight bearing by him contrary to medical advice. 4. The appearance of pain and redness at the site of previous surgery can be a prodromal indication of an emergent or evolving infection in that area. Such an infection can arise without an obvious or discernible triggering event. Absent evidence of premature weight bearing on the plaintiff's part, as had been suggested by Dr Miniter, and which I do not accept, I consider infection of the plaintiff's surgical wound in the post-operative period that followed the operation on 10 May 2010, was most likely due to causes other than premature weight bearing. Period 10 May 2010 to 12 June 2010 1. In the period between the plaintiff's discharge from hospital following his operation on 10 May 2010, and his next consultation with Dr Miniter on 12 June 2010, he developed observable signs of swelling in his right foot. 2. Although the plaintiff said in respect of that period, he found his right foot had, to his perception, become malodorous, and was later found to have been infected, no precise diagnostic conclusions can be drawn as to whether the plaintiff's perception of malodour was due to an injurious infection from a particular organism at that time, or whether it could have been of benign significance due to matters such as the effect of blood on surgical dressings, as was explained by Dr Miniter: T101.16 – T101.23. 3. In the events of 12 June 2010, Dr Miniter felt reassured by the fact that the swelling in the plaintiff's right foot had reduced after a period of hospitalised rest and elevation, which then reduced his index of suspicion as to whether an infective process was in progress in the plaintiff's right foot. Second operation – 30 June 2010 and relevant preceding events 1. On 17 June 2010, the plaintiff's infection in his surgical wound took a turn for the worse. Thereafter, he remained under the advisory background care of Dr Miniter, as well as remaining under the care of his treating general practitioner. By 28 June 2010, the plaintiff's surgical wound had produced an apparent smell of a Pseudomonas infection, for which appropriate investigative swabs were taken and for which he was given antibiotics. 2. On 30 June 2010, under a general anaesthetic, the plaintiff's infected surgical wound was re-opened and inspected by Dr Miniter. At that procedure, the lateral EndoButtons of the syndesmosis stabilisation devices were removed from the plaintiff's right ankle after the knots securing them to the connecting tightrope had been surgically cut. The evidence does not disclose the extent to which the tightropes themselves were removed at that time. The plaintiff's lateral right ankle wound was then cleaned or washed out. The material removed at that time would have included abundant pus. Removal of that material was achieved by means of surgical lavage carried out by Dr Miniter, following which no infective tissue was detected on a visual inspection. Subsequent to that procedure, the plaintiff remained as an in-patient receiving appropriate antibiotic treatment. 3. At that time, once Dr Miniter had cut the lateral knot on the ankle tightrope apparatus, the remainder of the tightrope apparatus was rendered inoperative and the remnant components then became redundant in their entirety. 4. On 30 June 2010, during Dr Miniter's intra-operative visual inspection of the plaintiff's surgical wound, although he considered sepsis to be present in the wound, he did not consider that a deep sepsis was present. Given the evidence of the infectious diseases physicians, I consider that the distinction sought to be made in the evidence of Dr Miniter to that effect, to be a distinction without significance as that conclusion appears to have been based on his visual inspection after the wound had been surgically cleaned. The evidence of the infectious diseases physicians was that a visual inspection of that kind was not a definitive basis for concluding there was no deep infection in the wound. 5. Dr Miniter had observed the wound to be pustulant, in that he had identified the presence of what he had described as laudable pus. I infer from that evidence that the infection was most probably deep. I also infer from that evidence, and from the oral evidence of Professor Guinness, that the pus had been cleared away at some point before the swabs were taken to sample various areas within the surgical wound for the purpose of growing microbiological cultures: T234.48 – T235.1. The precise locations, sequencing and method of taking intra-operative swabs at that time was not clarified in the evidence. This most probably affected the reliability of the results of testing from those swabs for the purpose of drawing conclusions on the causation issues in this case. 6. On 30 June 2010, at operation, Dr Miniter considered that although the plaintiff's operative wound was infected, it was not appropriate for him at that time, to surgically remove the remaining elements of hardware comprising the fibular fixation plate and screws. This was because at that time, he considered the bony union of the fibular fracture was not yet complete. That was a clinical judgment which was unquestionably open for Dr Miniter to make at that time, as the treating orthopaedic surgeon. On the evidence, that judgment has not been shown to have been made incorrectly or inappropriately. That said, there is no evidence which would reliably permit an inference that Dr Miniter had explained to the plaintiff the consequences of his judgment in that regard. 7. On 30 June 2010, after Dr Miniter had cut the knot securing the lateral EndoButtons, he did not take any further steps to remove the medial EndoButtons or the redundant residual tightrope attached to those EndoButtons. This was in circumstances where the newly cut remnant end of the tightropes were located somewhere near the lateral part of the plaintiff's ankle, where that material then continued to remain in situ whilst the uncut portion still remained attached to the medial EndoButtons until removal on 25 July 2017. 8. That remnant portion of cut tightrope material then remained in that position within the bony tracking tunnels that had been previously created by Dr Miniter at the initial operation he performed on 10 May 2010. Whilst a residual fibrous portion of that tightrope remained in place, as was later described by Dr Miniter, it constituted what the expert evidence described as being a very good and suitable environment for enabling the travel or transmission of any laterally located infection along its route, that is, from the lateral side to the medial side via connecting tunnels that had been drilled by Dr Miniter on 10 May 2010. 9. The only clear description of what probably occurred at the surgery on 30 June 2010 at the time when the lateral EndoButton knots were cut came from Professor Guinness, as follows: "…as I understand it from the mechanics of the procedure, when the knot was cut, the lateral button would go and so you're really - you're just left with a hole in a bone, a small hole, probably with a neat scalpel cut on the end of that and there's nothing to see. Unless pus was actually coming out of that cavity, you wouldn't be inclined to take a swab from that site." [T231.27 – T231.32] It is not clear on the evidence as to whether Dr Miniter took a swab at that particular location, either in isolation, or in cumulative combination by sampling other sites with the same swab. 1. Following on from that description, a further perspective came from the evidence of Professor Braslins, as follows: "…I'm not sure that we know for certain that the cable wasn't sampled. What we have is reports of swabs and tissue samples and what constitutes those tissue samples, and where that swab was collected is not recorded. As I understand it, a surgeon, during a procedure like this, would use a swab, a single swab, and would swab multiple areas. So it is entirely possible that the tip of the cable or the tip of the tunnel where the cable was inserted was actually included as a site that was swabbed, and it's not clear to me what constitutes the tissue samples that were submitted for culture. They may have also been collected from tissue adjacent to the tunnel, so I'm just not sure that we can say for certain that the cable and the tunnel were not sampled." [T231.37 – T231.47] 1. During the concurrent expert evidence session, the above issue as raised by Professor Braslins was identified as a reasonable question, but the factual evidence of what actually occurred in relation to this issue was identified as being absent. Speculation on that issue is not appropriate: T231.50. No application was made for Dr Miniter to be recalled to give factual evidence to clarify that question, either according to any actual recollection he might have had on that matter, or according to what his usual practice had been in such circumstances. Period 7 July 2010 to 30 July 2010 1. After the plaintiff was discharged from hospital on 7 July 2010, he remained under the care of his treating general practitioner, who provided general treatment comprising the taking of swabs for cultures, and provision of antibiotic prescriptions. This was appropriately undertaken in accordance with various consultations that had been undertaken with Dr Miniter and with the hospital infectious diseases team. No complaint arises from those events except perhaps for the plaintiff's complaint of not having been appropriately treated by Dr Miniter earlier than on 4 August 2010, a matter that has not been particularised on his behalf in this case. 2. Between 7 July and 30 July 2010, the plaintiff's right ankle remained infected, but this infection remained under appropriate medical management, review, and treatment, including by antibiotic treatment that was given under the appropriate supervision of the hospital's infectious diseases team. 3. On 30 July 2010, at the request of the plaintiff's general practitioner, Dr Miniter saw and examined the plaintiff. At that time he decided, appropriately, to undertake a further surgical exploration of the lateral wound on the plaintiff's right ankle, at which time a plan was then made to remove redundant indwelling hardware. Plaintiff's account of his conversations with Dr Miniter 1. In view of the plaintiff's fair concession about his limited recall of critical details, I consider that nothing of significance turns on his account of the various conversations he described having had with Dr Miniter concerning matters of proposed or actual treatment and care. I do not consider the plaintiff's account of those conversations to be a reliable source of evidence for concluding, as the plaintiff claimed, that Dr Miniter made relevant admissions against his interest on issues in this litigation. Operation on 4 August 2010 1. On 4 August 2010, in the operating theatre, Dr Miniter surgically opened the plaintiff's right ankle on the lateral side. At that time he determined that the plaintiff's fibula fracture had united. He then removed the indwelling fixation plate and screws located on that side. At that time, the plaintiff's right ankle wound was still considered to be infected. Dr Miniter formed the view that there was no visible indication of a deep sepsis. Swabs were taken and the wound was closed. Again, the precise locations, sequencing and method of taking intra-operative swabs at that time was not clarified in the evidence. Appropriate antibiotic therapy was then ordered and commenced. 2. On 4 August 2010, at the time Dr Miniter opened the scar tissue on the plaintiff's right ankle from the lateral side, he knew that the medial EndoButtons and an attached portion of the tightrope apparatus was still in situ. 3. After removing all other hardware components that were accessible for removal from the lateral side of the ankle he carried out an external intra-operative examination of the medial side of the plaintiff's right ankle. That examination, both visual and by palpation, which was carried out whilst the plaintiff remained anaesthetised, did not suggest any sign of infection at that location. 4. Visual and palpation inspections of the plaintiff's medial ankle whilst the plaintiff was anaesthetised, would not have produced any patient reaction of pain or tenderness when that area was palpated and examined. Consequently, this was not a reliable indication upon which to base a conclusion that an underlying infection was not present. 5. During the course of the operation on 4 August 2010, Dr Miniter made the conscious decision not cut the skin to surgically disturb the medial side of the plaintiff's right ankle to create a surgical wound in order to remove indwelling hardware from that side. He took that course knowing that the residual redundant tightrope and the medial EndoButtons to which it was attached, would consequently remain in situ. 6. Dr Miniter's stated intra-operative decision for not removing the medial EndoButtons was based on a concern that to do so, could cause an intra-operative cross-infection from the already infected lateral side of the ankle. 7. On 4 August 2010, at the conclusion of the operation Dr Miniter must have known that the retained medial EndoButtons and the attached remnant portion of the tightrope apparatus included component fibrous material which extended into the drilled tunnels that tracked to the lateral side of the ankle, and which would remain in situ until such time as other arrangements were made in the future to remove that material. 8. On 5 August 2010, Dr Miniter knew, at least from an x-ray taken on that day, and which came to his attention, as well as from the operation he had carried out the day before, that redundant remnant surgical hardware still remained in situ in the plaintiff's right ankle. 9. In those circumstances, Dr Miniter left no written record or communication of any plan he might have had in mind for the future removal of that material before discharging the plaintiff from his care. The hospital notes are uninformative on the detail of Dr Miniter's clinical thinking in that regard. 10. Before discharging the plaintiff from his care, into the care of the hospital infectious diseases team, Dr Miniter did not inform the plaintiff that once all lateral infection issues had been resolved, some consideration had to be given to the removal of the remnant material on the medial side, and also as to the timing of such removal. 11. Following the 4 August 2010 surgery the plaintiff continued to remain unaware that remnant tightrope components had been left in situ on the medial side of his right ankle. There is no record to the contrary which would tend to contradict the plaintiff's evidence in that regard. 12. After August 2010, the plaintiff serendipitously experienced a metal-detector set-off incident in a retail shop: T55.6 – T55.31. I accept that incident did not cause him to think to make a connection that there might be a relationship between the activation of the metal detector alarm and the possibility of a continued presence of redundant metallic hardware components in his right ankle. Correspondence between Dr Senanayake and Dr Miniter 1. On 18 August 2010, Dr Senanayake wrote to Dr Miniter to recap the history of the plaintiff's treatment. In that letter he referred to the operation on 4 August 2010 as having been for "removal of all the hardware": Exhibit "1", Vol 2, pp 548 – 549. There is no evidence that Dr Miniter either wrote to or spoke to Dr Senanayake in order to correct that mistaken view, or to inform him that two medial EndoButtons still remained in situ at that time. 2. On 22 September 2010, Dr Senanayake wrote to Dr Miniter to keep him appraised of the plaintiff's ongoing infectious diseases management. This consultation occurred 59 days post-operatively. Dr Senanayake described the plaintiff's wound as healing nicely in the context of antibiotic treatment. Some swelling of the right ankle was noted in comparison to the left but the incision looked fine, with the ankle showing a full range of painless movement. A further review was planned. He noted the plaintiff's wound had almost completely healed apart from a central section from which there is occasionally a little discharge. Nothing further was said about hardware. The letter advised Dr Miniter that Dr Senanayake would be seeing the plaintiff on 3 November 2010. The letter concluded with the following statement: "Brian does not have an appointment with you at this stage and I suggested that you would be keen to see him": Exhibit "1", Vol 2, p 550. There is no evidence that either the plaintiff or Dr Miniter followed up that suggestion by Dr Senanayake. There is no evidence that the plaintiff had been advised to obtain a follow-up appointment with Dr Miniter. 3. On 3 November 2010, Dr Senanayake wrote to the Miniter indicating that post-operative antibiotic treatment would cease after a further two days. He stated that he regarded the plaintiff as having been cured of infection. He also stated that he told the plaintiff it was possible for osteomyelitis to relapse "even years down the track, although this is uncommon": Exhibit "1", Vol 2, p 551; Exhibit "1", Vol 2, p 712. Although a handwritten date of 15 November 2010 had been added to a second copy of that letter in that exhibit, it is not clear as to who made that notation, or when this occurred. Operation on 25 July 2017 1. In mid-2017 the plaintiff developed signs of infection in his right ankle which required that Dr Miniter re-operate on his right ankle to remove the remnant medial hardware components that had remained in situ. 2. On 25 July 2017, Dr Miniter's post-operative note, in which he inaccurately described having removed a single EndoButton, he described his operative findings as follows: "FINDINGS osteomyelitis plus retained foreign material right ankle endobutton/ tightrope fixation TECHNIQUE excision of sinus tract lateral aspect right ankle suture material in base > removed after excision of endobutton medial aspect of tibia : located with II sinus tract cleared swabs and suture material sent washout prolene : easy wound closure POST-OP ORDERS continue iv antibiotics rest PICC line to continue await sawab (sic) results" [Exhibit "1", Vol 1, p 242; Exhibit "1", Vol 1, p 44] 1. I accept that until the plaintiff had the post-operative opportunity in August 2017, of viewing his healing surgical cut that had been made by Dr Miniter on the medial side of his right ankle in the surgery carried out on 25 July 2017, he had no prior awareness of any residual redundant hardware components having been retained in his right ankle until that operation. 2. The above factual findings and the analysis of the expert evidence will guide my findings on the remaining issues calling for decision. My findings on those remaining issues now follow. Issue 2 – The pleaded limitation defence 1. The plaintiff's statement of claim was filed on 26 November 2018 2. By paragraph 15 of Dr Miniter's defence, dated 21 March 2019, which was filed on 9 April 2019, it was asserted that the plaintiff's claim is statute barred pursuant to s 50C of the Limitation Act 1969 (NSW). That statute has no application to these proceedings as the substantive law of the ACT applies: Limitation Act 1985 (ACT); John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, at [28]; [100]. Nevertheless, in the paragraphs that now follow, I review the notion that a limitation defence could possibly apply. 3. The pleaded defence of a limitation bar is based on the identified act of alleged negligence occurring in August 2010. It seems that the matter at issue was the date of discoverability of the relevant act, neglect or default in relation to when the plaintiff first realised he suffered actionable harm. 4. Section 16B of the Limitation Act 1985 (ACT) provides: LIMITATION ACT 1985 - SECT 16B Other claims for damages for personal injury (1) This section applies to a cause of action for damages for personal injury other than a cause of action to which section 16, section 16A or section 16AA applies. (2) The cause of action is not maintainable if brought— (a) if the injury is or includes a disease or disorder—3 years or more after the day the person injured first knows— (i) that the person has suffered an injury that is or includes a disease or disorder; and (ii) that the injury is related to someone else's act or omission; or (b) in any other case—3 years or more after the day the injury happened. 1. As I have found that the plaintiff did not know of Dr Miniter's alleged act or omission until either late July or early August 2017, and the proceedings were commenced within three years of him becoming aware of those circumstances, I find that the three year limitation bar does not apply: s 16B(2) of the Limitation Act 1985 (ACT). Issue 3 – The relevant risk of harm 1. Before considering the question of whether or not Dr Miniter was in breach of the duty of care that he owed to the plaintiff, it is necessary to first identify the relevant risk of harm: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [60], [62]; Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1; [2015] NSWCA 90, at [98]. 2. In accordance with authority, I recognise that the relevant risk of harm should not be formulated too precisely or narrowly. Instead, it must be seen to be a generally broad concept that is not confined to the particular hazard that ultimately caused the harm. The formulation of the risk of harm should allow for a range of prospectively foreseeable contingent circumstances that might flow from the activity in question which also encompasses the particular hazard which is the subject of the litigation: Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320, at [118]; Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124]. 3. The submissions made on behalf of Dr Miniter in relation to the relevant risk of harm asserted that "Regrettably", the plaintiff's submissions proceeded on the basis of an unpleaded notion of a failure by Dr Miniter to remove redundant hardware shortly after 4 August 2010: Defendant's written submissions, par 32. I do not accept the aptness of that submission as it overlooks the fact that the plaintiff's pleaded case includes an allegation of a failure in August 2010, "or thereafter", to remove hardware. 4. On behalf of the plaintiff it was submitted that the relevant risk of harm was the risk of infection in the right ankle as a result of failure to remove the redundant tightropes and medial EndoButtons, as at 4 August 2010, or shortly thereafter, following the cultivation of a few different types of bacteria in June and August 2010: Plaintiff's written submissions, par 22. 5. It was also submitted on behalf of the plaintiff that the risk of infection in the right ankle following the isolation of four different bacteria from the surgical wounds on 30 June 2010 and 4 August 2010 in the presence of retained hardware was a foreseeable risk that was not insignificant: Plaintiff's written submissions, par 75. 6. I consider that the particular circumstances of this case, which involved a defined surgical procedure that was carried out on 4 August 2010, and which had a range of potential knock-on adverse consequences, including the risk of complications from infection, make it difficult to strike a balance between avoiding undue specificity on the one hand, and undue vagueness or generality in identifying the relevant risk of harm on the other hand. In those circumstances, it must be recognised that there is no "right" formulation: Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320, at [119]; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [59]. 7. In this case, recognising the required statutory context, I find that the relevant risk of harm within the meaning of s 43 of the CLWA was that where, on 4 August 2010, an operating orthopaedic surgeon in the position of Dr Miniter made a considered intra-operative decision to intentionally leave selected redundant components of surgical fixation hardware in situ, these being redundant ankle syndesmosis stabilisation components, rather than removing them after they no longer served a purpose, the consequences of such a decision could foreseeably pose additional and "not insignificant" risks for patient infection beyond what might be considered to be the ordinary risks of intra-operatively or post-operatively acquired infection. I also find that such risk of harm arose on 4 August 2010, and it continued to apply thereafter, for so long as the redundant elements of hardware remained in situ. 8. In such circumstances, the materialisation of such an additional risk of infection could foreseeably occur randomly, above and beyond what might be considered to be ordinary risks of infection. This is because, at the time, it was fundamental and well understood in the practise of orthopaedic surgery, that redundant fixation components, if not removed within a reasonable time after no longer serving a purpose, could become a harbinger that enabled harmful infection to accrue, and to develop into osteomyelitis, and spread, with the potential to cause damage to surrounding bodily tissues. 9. In those circumstances, reasonable care required the exercise of due skill, care, and professional consideration, including taking the time to communicate with the patient and with other practitioners having a relevant interest, as to what if any further professional activity ought to be taken in the nature of prudent precautions against such additional risks, whilst also having due regard to the potentially serious and harmful infection consequences for the patient, if such precautions were not taken. Issue 4 – The duty of care owed and its scope and content 1. There is no dispute that in the context of the existing doctor and patient relationship, Dr Miniter owed the plaintiff a duty of care. The standard of care that was required in this case is identified and defined in general terms by s 42 of the CLWA, which provides as follows: 42 Standard of care For deciding whether a person (the defendant ) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose. 1. Expert evidence will generally provide assistance to guide the determination of what steps a reasonable person, being a specialist orthopaedic surgeon in the position of Dr Miniter, ought to have taken in the circumstances in the discharge of the duty of care that was owed. Although expert evidence is unquestionably relevant to that question, expert evidence is not necessarily determinative of that question, especially in this case, because the ACT CLWA has no equivalent provision to s 5O of the CL Act (NSW). 2. Dr Miniter accepts that he owed the plaintiff a duty to take reasonable care in connection with the operation. In the context of Dr Miniter's specialist medical treatment of the plaintiff, the scope and content of that duty is determined by the specialised knowledge he had or ought to have had on matters concerning the risks of, and the management of, surgically acquired infection, and its causes: Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 ("Stavar"), at [102] – [103]. 3. In this case, the determination of the scope and content of Dr Miniter's duty of care is predicated upon first, the foreseeability of harm from the potential for infection to occur following surgery, and secondly, the nature of that possible harm, which could potentially be serious: Stavar, at [103]. Attempts at an exhaustive analysis of the range of potential harms in particular, is an unnecessary exercise: Stavar, at [104]. 4. In the context of a doctor and patient relationship, it is long well settled in applicable common law principles that such a relationship gives rise to a duty of care, as has been authoritatively stated in Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58, at [5]: "The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment" ((2) Sidaway v. Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871, per Lord Diplock at p 893); it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case ((3) Gover v. South Australia (1985) 39 SASR 543, at p 551.). It is of course necessary to give content to the duty in the given case." 1. The content of the duty of care owed must be defined in the context of the case at hand: Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18, at [7] and [63]. In this case, plainly, the scope of the duty of care Dr Miniter owed to the plaintiff was to take reasonable precautions against the risk of harm from infection when treating the plaintiff in the context of a decision to leave redundant hardware components in situ on 4 August 2010. 2. In final submissions made on behalf of Dr Miniter it was accepted that the "real question" is what precautions (if any) would a reasonable person have taken in July / August 2010 to guard against the risk of harm, having regard to the expert evidence of the conduct of a competent orthopaedic surgeon in 2010, as well as the factors in s 43(2) of the Wrongs Act": Defendant's written submissions, par 37. 3. Whilst that submission is in large measure correct, in effect, it seeks to rely upon expert evidence as the arbiter of what constitutes reasonable care in the circumstances, whereas the true position in this case is that the function of expert evidence is to guide but not determine the required evaluation. 4. In this case, a significant defining feature of the duty of care owed by Dr Miniter is that as the treating orthopaedic surgeon, after consultation with the infectious diseases team, but absent any informed input from the plaintiff, he was in a position of total control over a decision as to whether or not to remove redundant foreign body hardware from the plaintiff's right ankle when he operated on the plaintiff on 4 August 2010. It was also within his power and control to decide what, if anything, he later told the plaintiff after the event, about that decision and its consequences. 5. On 4 August 2010, according to the expert evidence, Dr Miniter, as a specialist medical practitioner, must have known that to decide to allow redundant hardware to remain in situ could provide a nidus or a focal point for injurious infection to accrue and develop at a later point in time. This was a matter of specialised knowledge within Dr Miniter's particular professional expertise. It was a matter totally outwith the plaintiff's knowledge unless Dr Miniter had chosen to provide the plaintiff with information or advice on such matters so as to make it a shared decision: Stavar, at [103]. There is no evidence of any such communication in this case. 6. Since the evidence shows that on 4 August 2010, Dr Miniter took no pre-operative steps to inform the plaintiff of such matters, or to share with him knowledge of a potential for a nidus of infection to develop if retained redundant hardware components were left in situ, his duty of care to the plaintiff must be seen to extend to a need for him to rationally consider the potential risk of harm from the possible future tracking and spread of infection occurring, for so long as redundant hardware was allowed to remain in situ. 7. The fact that the plaintiff was not beforehand made aware of the possibility of infection occurring or spreading specifically as a consequence of part of the redundant hardware being left in situ after it no longer served a therapeutic purpose, is a matter that must be weighed and taken into account in determining the extent of the duty of care that Dr Miniter owed to the plaintiff. 8. The effect of Dr Miniter's decision, first, to leave redundant elements of the fixation hardware system in place, and secondly, not to post-operatively inform the plaintiff of the consequences of that decision in terms of possible future occurrence of infection that could arise at an indeterminate point in time, effectively precluded the plaintiff from exercising an aspect of the autonomy he might otherwise have had concerning whether or not he should take such a risk: Stavar, at [103]; Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58, at [5]. 9. This was in the context where Dr Miniter did not assert the existence of what has been referred to in the decided cases as a "so-called therapeutic privilege" that might have justified him not informing the plaintiff that redundant hardware was left in situ, where, otherwise the plaintiff had autonomy of decision-making on such matters: Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58, at [8], [11] and [16]. 10. I conclude from the circumstances of Dr Miniter's ultimate position on 4 August 2010, of total control over the decision of whether or not to leave redundant hardware components in situ, and also because his total control over whether or not, and with whom, to share knowledge and information about his surgical actions and decisions, that his duty of care to the plaintiff not only extended to his surgical actions and his decisions for those actions, but also to matters such as making an accurate and unambiguous record of what was done to the plaintiff at operation, especially where the prevailing circumstances of infection had influenced his intra-operative decisions and actions. 11. This must be so where, having regard to the identified risk of harm, the plaintiff, as a matter of autonomy and interest in his own future wellbeing, was entitled to be sufficiently and accurately informed as to what was done at the operation, or not done, and why that was so, and the potential consequences, in each instance. 12. I therefore find that Dr Miniter's duty of care extended to the need for unambiguously accurate and reliable communication of relevant operative events when discussing the procedure with the plaintiff post-operatively, and when making written entries in the plaintiff's medical records, as well as in his communication with other medical practitioners who might foreseeably be involved in the plaintiff's post-operative care after he had completed his role in the plaintiff's treatment. 13. I also find that Dr Miniter's duty extended to ensuring that the plaintiff and other medical practitioners who were involved in his treatment were appropriately advised as to when it might be considered safe and prudent to make arrangements to undertake further surgery for the removal of the redundant hardware components which he had decided to leave in situ at the time of the operation he performed on 4 August 2010. If it were otherwise, the plaintiff's future medical needs might well have been likely to become lost to follow-up. Issue 5 – Preferred expert evidence on breach of duty of care 1. Professor Higgs and Professor Sullivan essentially agreed on matters of general principle concerning orthopaedic surgical management but they differed on specific matters of opinion on the appropriateness of Dr Miniter's management of the plaintiff's treatment. 2. There is no real dispute between Professor Higgs and Professor Sullivan that the applicable and fundamental orthopaedic principle that should be considered to have been standard practice required the removal of redundant surgical hardware in the presence of infection, unless that hardware continued to serve a purpose, such as continuing to promote bony healing of a fracture that remained un-united at the time of such consideration. 3. Both Professor Higgs and Professor Sullivan were also in agreement that it was appropriate for Dr Miniter to at least remove the lateral fixation plates and screws in the plaintiff's right ankle by 4 August 2010, although Professor Higgs' view was that all hardware should have been removed by that time. 4. As I understand their evidence, there were two compelling reasons for removal of the lateral redundant hardware by that time. 5. The first such reason was that satisfactory bony union of the fractured fibula had already occurred by 4 August 2010, so that no harm would come from removal of devices that had become redundant. The second such reason was that as satisfactory bony union had occurred by that time, it was important to remove redundant devices in the presence of known infection because it was well understood amongst orthopaedic surgeons that such devices could harbour infection, and could become a nidus for infective bacteria to accumulate and to track and spread to nearby bodily tissues that were otherwise healthy. 6. The point at which Professor Higgs and Professor Sullivan commenced to disagree on matters of opinion concerned the removal of redundant medial EndoButtons where there was no visual evidence of any infection on an external intra-operative examination of the medial side of the plaintiff's right ankle. Dr Miniter gave as his reason for not wanting to make an incision on the medial side, the absence of signs of infection. In his oral evidence, his stated concern was the possibility of creating an infection or a cross-infection on the medial side because the lateral side was already known to have been infected. 7. On that point, for what I consider to be a preponderance of compelling reasons, which now follow, and which emerge from the expert medical evidence, I find that the opinions of Professor Higgs should be preferred to those of Professor Sullivan. 8. First, the expert orthopaedic opinions must be evaluated in light of the identified risk of harm and the scope and content of the duty of care owed, and also in light of the general and non-controversial aspects of expert opinion upon which the infectious diseases physicians agree. In that latter regard, the bacteria that can cause osteomyelitis should be viewed as being in a large general group, in which some organisms are more virulent than others, where bacterial osteomyelitis has the capacity to spread to cause harm to adjacent healthy tissues. Such circumstances merited the taking of reasonable precautions against such a risk. 9. Secondly, after 30 June 2010, the redundant medial remnants of the syndesmosis stabilisation system ceased to serve a function after Dr Miniter cut the lateral knots of that system. In those circumstances, because the medial remnant components of the stabilisation system then remained as foreign bodies, they too served as a potential nidus for possible infection that could possibly develop and spread below the skin, where it would not necessarily be observable on an external inspection, either visually or by palpation. Therefore, to leave such redundant components in situ, without a specific plan of management, including for removal at a later time, risked the potential harm that could otherwise have been guarded against by the exercise of reasonable care. 10. Thirdly, in the context of the described circumstances, I do not accept as reasonable, Professor Sullivan's factual argument comprising the theoretical construct to the effect that the fixation plates and screws should be viewed as implants that were separate from the components of the tightrope stabilisation system. That was the point of analysis he relied upon as justification for Dr Miniter not removing the medial redundant hardware on 4 August 2010. Instead, I accept as more reasonable, and more logical, Professor Higgs' view to the effect that the entire array of indwelling hardware that was installed to treat the plaintiff's injury on 10 May 2010 should be viewed as one system from the viewpoint of a consideration of what required removal in the combined presence of redundant hardware and infection. That latter view gives proper recognition to the expert infectious diseases evidence that infection does not recognise boundaries and it is capable of attaching itself to elements of such hardware, and then spreading in an unpredictable way to adjacent tissues. 11. Fourthly, and similarly, I do not accept as either reasonable or appropriate, Professor Sullivan's analytical standpoint that different compartments or sections of the ankle can be viewed separately in terms of a surgical response to infection control as a justification for not surgically removing the medial components on grounds of lack of apparent evidence of infection. In that regard, I prefer Professor Higgs' view that the ankle should be viewed as a whole. I consider this to be so, especially since in this instance Dr Miniter had drilled communicating tunnels through the plaintiff's right fibula and tibia, where tightrope structures had been threaded through those holes, including through adjacent tissues, and where those tightrope structures could serve as what has been described in the evidence as a very good and suitable highway for transmission of infective organisms from one side of the ankle towards the other side. The end point of the other side of such internal tunnels juxtaposed to a point near the underside of the redundant medial EndoButtons, which were themselves, a potential nidus or gathering point for infection. On account of those factors, I prefer and accept Professor Higgs' opinion to the effect that this aspect of Professor Sullivan's opinion was unrealistic. I have also given weight to the unchallenged expert infectious diseases evidence of Professor Guinness that Professor Sullivan's boundary-based concept of compartmentalisation of the ankle into separate infected and uninfected portions for the purpose of analysis, was unscientific. 12. Fifthly, I consider the nature of Dr Miniter's intra-operative examination of the medial side of the plaintiff's right ankle, as a basis for determining there was no infection at that place, to be necessarily limited for the purpose of forming a reliable conclusion to that effect. A visual examination would certainly show whether or not signs of erythema and swelling were present as a possible sign of infection. However, a manual palpation of the medial side would not have elicited a tenderness response from a patient whilst under anaesthesia. Furthermore, as was observed by Professor Guinness, infection can develop from an earlier prodromal stage. In those circumstances, I infer from such evidence that the indicia of infection may not always be visually observable or detectable. Therefore it was of doubtful reliability to conclude from absence of such external signs, that there was no infection developing or accumulating in the deeper structures on the medial side. I also consider that to be so because, the lateral side of the ankle was already affected by deep infection, and because communicating tunnels had been drilled from that location to the medial side. 13. Sixthly, the nature of bacterial osteomyelitis infection is such that it can lay dormant or suppressed, and it could remain and lurk in the glycocalyx to emerge purulently at a later and unpredictable point in time. In those circumstances, when it was safe to do so, early removal of a potential nidus for infection on account of risk reduction would seem to be a more prudent course to take, rather than to leave a potential nidus in place where it no longer served any practical purpose. In that regard, I attach persuasive force to the view that even if Dr Miniter decided that on 4 August 2010 it was not the time to remove the remnant medial hardware, that procedure could have been undertaken a month or so later, as was explained by Professor Guinness (at T248.45), that is, after the lateral infection had been treated and brought under control, instead of leaving those redundant remnants in situ for an indeterminate period without a definite plan having been established for the ultimate removal of those remnants. 14. In arriving at those views, I have not overlooked those portions of the evidence of Dr Miniter and Professor Sullivan to the effect that to operate to cut and open the skin on the apparently uninfected medial side, in order to remove redundant hardware components, risked either infection or cross-infection of otherwise healthy tissues. In my view, on the evidence, the answer to a stated concern along those lines is as follows: 1. First, a risk of that kind must be weighed against the risk of greater harm arising from leaving a potential nidus for infection in place where an already serious infection was present on the lateral side, for which appropriate antibiotics would be given; 2. Secondly, if the potential for resultant cross-infection to occur was a concern, it would be reasonable to assume that the systemic antibiotics given to attack and treat the primary infection on the lateral side would also have had a therapeutic effect if the same organisms became infective on the medial side. Whilst the expert evidence was silent on that subject, it seems to me that the evidence as to the systemic effect of antibiotics gives rise to a commonsense inference along those lines: Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45; at pp 563 – 564; p 569; Seltsam Pty Ltd v Guinness (2000) 49 NSWLR 262; [2000] NSWCA 29, at [87] – [88]; Commissioner of Police v Rea [2008] NSWCA 199, at [8]; 3. Thirdly, if a fresh skin cut made on the medial side led to a fresh infection of the kind discussed by the infectious diseases experts, such as through a possible unavoidable breakdown in aseptic technique in the operating theatre, on the evidence, it seems that such a development would have been a treatable vicissitude for which a hospital infectious diseases physician would have been consulted in order to prescribe a suitable treatment; 4. If the risk/benefit analysis identified by Dr Miniter had been made, the plaintiff and those other practitioners treating him should have been made aware of the consequences of that analysis in terms of possible future infection as this was a relevant consideration given the increased risk of infection where redundant hardware remained in situ. 1. In my view, when Dr Miniter and Professor Sullivan expressed their views for defending the decision of not having made a cut on the medial side, they seem to have given disproportionate weight to such a cut being a possible source of potential infection risk in comparison to what seems to be the need to weigh a potentially greater harm posed by the risk of an internal spread of infection via what has been described in the accident as the highway comprising the connecting tunnels drilled through the ankle bones and tissues. 2. The foregoing analysis has led to me prefer Professor Higgs' opinions to those of Professor Sullivan. That approach will therefore guide my evaluation of the question of whether or not Dr Miniter was in breach of the duty of care that he owed to the plaintiff in this case. Issue 6 – Alleged negligence 1. The plaintiff did not seek to mount a case of a relevant failure on the part of Dr Miniter to warn him of the possibility or risk of a late infection emerging from a state of dormancy in the context of a decision to leave redundant hardware in situ. Neither did the plaintiff seek to mount a case that his autonomy of decision making on matters that could have been potentially deleterious to his health had been frustrated or rendered nugatory because, in the context of elective surgery, Dr Miniter had not provided him with relevant information about the potential adverse consequences of allowing redundant hardware components to remain in situ without a finite plan for removal at a time when it was considered more appropriate and safe to do so. 2. Instead, the analysis must focus on the particularised case. Particulars of negligence as pleaded 1. The plaintiff's case was based upon the following pleaded particulars of negligence: 1. Failure in August 2010 or thereafter to remove all infected or infective hardware including the sutures and buttons; 2. Failure to accurately record and describe the surgery of August 2010 in the Operative Report so as to record that the sutures and buttons remained in situ; 3. Failure to devise implement or maintain an effective treatment plan for the plaintiff's post-operative infection; 4. Failure to refer the plaintiff for investigation by an infectious diseases specialist. 1. In my view, particulars (c) and (d) as set out in the preceding paragraph may in this instance be disregarded as being inapplicable to the factual circumstances of this case. This is because Dr Miniter did in fact arrange for an appropriate and effective treatment plan for the plaintiff's post-operative infection in 2010, in that he appropriately enlisted the services of the hospital infectious diseases team so that an appropriate specialist was engaged to oversee the plaintiff's need for antibiotic treatment for infection, until the infection was considered to have been cured, in November 2010. 2. This then leaves for consideration particular (a), which relates to Dr Miniter's unilateral decision not to remove the redundant hardware, and particular (b), which relates to the adequacy of the clinical record that Dr Miniter made concerning the procedure he carried out on 4 August 2010, knowing it was foreseeable that if infection were to subsequently occur, in the future, other practitioners may be reliant upon the content of his arguably ambiguous clinical record when considering the appropriate measures to be taken for treatment and management of such infection: Elayoubi v Zipser [2008] NSWCA 335, at [65] – [66]; [74] – [76]; [83]. Defendant's complaint concerning plaintiff's alternative case 1. Written submissions made on behalf of Dr Miniter raised a complaint over the plaintiff's reliance on an alternative unpleaded case that after the operation on 4 August 2010, and as a separate subsequent procedure, a competent orthopaedic surgeon would have removed the redundant hardware elements so as to reduce the risk of infection: Defendant's written submissions, par 39. 2. The plaintiff's so-called alternate case, had two foundations. First, it was a reflection of the plaintiff's particularised case, as is evident from the particular of negligence (a) cited at paragraph [368] above. Secondly, it was based on unchallenged expert evidence comprising the opinion of Professor Guinness, in the joint expert report that followed his meeting with Professor Braslins: Exhibit "1", Vol 1, pp 207 – 208. 3. The alternate case had therefore been on the table and exposed to the defendant's legal advisors since 8 October 2019, which was the date of that joint report. Absent challenge or contradiction, it was therefore an available argument that was open to be made at trial, at least on the causation issue, if not more: Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666, at p 668. Therefore, it cannot be said reasonably that the argument in question involved ambush. 4. In my view, on the facts of this case, it is of little if any significance that the plaintiff's alternative case was not put to Dr Miniter in cross-examination, as was pointed out in the cited submission made on his behalf. 5. I consider that to be so because, following the operation performed by Dr Miniter on 4 August 2010, the last time Dr Miniter had professional contact with the plaintiff before July 2017, was on 11 August 2010, as is evidenced by an entry in the hospital records relating to antibiotic treatment and changes of surgical dressings: Exhibit "1", Vol 1, p 405. The plaintiff was then apparently discharged from his care in circumstances where there was no evidence to suggest Dr Miniter had made any arrangements to see the plaintiff, his private patient. Nor was there any evidence suggesting the plaintiff had been told by anyone that he should seek a post-operative appointment with Dr Miniter for any reason whatsoever. The evidence is to the effect that the plaintiff's post-operative care was within the remit of the hospital's infectious diseases team. 6. Whilst Dr Senanayake, the infectious diseases physician, wrote to Dr Miniter to keep him informed of the progress of the plaintiff's antibiotic treatment, there is no evidence that Dr Miniter replied to that correspondence or acknowledged it in a way that might suggest that he had retained a supervisory role in the plaintiff's infection management. 7. The compelling inference is that Dr Miniter had discharged the plaintiff from his care by 11 August 2010. There is no hospital record, or patient file note, or correspondence from Dr Miniter to the treating general practitioner to suggest otherwise. 8. In those circumstances, if the alternative case had been put to him in cross-examination, Dr Miniter would not have been able to make a relevant factual comment in response as he was no longer involved in the plaintiff's medical management after 11 August 2010. Any comment he might have been invited to make in those circumstances would have been hypothetical, speculative, not based on facts known to him, and therefore it would have been irrelevant and inadmissible: s 56 of the Evidence Act 1995 (NSW); s 56 of the Evidence Act 2011 (ACT). 9. The way in which the parties conducted the trial, where irrelevant deficiencies were permitted to remain in their respective pleadings, without them having taken the preferable step of making an application for leave to achieve rectification, where ultimately and for obvious pragmatic reasons, the issues which defined the dispute appear to have been defined in the expert evidence, and not in the pleadings. In those circumstances, there is no substance to the defendant's complaint about a so-called alternative case: Indigo Mist Pty Limited v Palmer [2012] NSWCA 239, at [66], following and applying cases such as Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12, at p 497, and Whisprun v Dixon [2003] HCA 48; 200 ALR 447, at [52]-[53]. 10. Whilst it is preferable for pleadings to be amended to formalise emergent circumstances, it is not essential for this to occur, and a case may proceed to judgment provided the issue raised was run at trial. That statement applies with full force to the present circumstances. I therefore do not accept the defendant's cited submission. The issue of whether the redundant hardware left in situ on 4 August 2010 should have been removed shortly afterwards, as suggested by Professor Guinness, was sufficiently identified in the evidence for it to be considered at trial. 11. For completeness, in the paragraphs that now follow, I identify the unrectified deficiencies in the pleadings as referred to at paragraph [379] above. 12. Dr Miniter's pleaded defence referred to and relied upon the provisions of the CL Act (NSW) and the Limitation Act 1969 (NSW) when those statutes plainly had no application to this case. 13. Although the plaintiff's case was plainly structured on the basis that the CL Act (NSW) applied, the statement of claim made no reference to the terms or the requirements of any civil liability legislation, whether ACT or NSW, and similarly, it pleaded no reference to any relevant statutory provisions concerning risk of harm, duty of care, and alleged causative breach, as is the expectation of a pleading in such a case: Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320, at [128]. 14. The plaintiff's statement of claim relied upon s 3(1)(a) and s 60 of the Australian Consumer Law, which did not feature in either the opening address or in final submissions on behalf of the plaintiff, whereas the plaintiff relied upon an unpleaded case based on the provisions of the CLWA. 15. Furthermore, the plaintiff's statement of claim made reference to "s 60 ACL and/or negligent" (at par 8), and "the Defendant's breach and/or negligence" (at par 9). 16. The expression "and/or", otherwise described in a range of decided cases as the bastard conjunction, does not belong in a pleading because it is an unclear term that is apt to confuse and mislead. I explained that problem in Vaccaro v MLC Limited [2016] NSWDC 85, at [10] as follows: "10. The use of the loosely ambiguous term "and/or" has been authoritatively described elsewhere as the "bastard conjunction" that is to be regarded as being unacceptable in pleadings due to its vagueness and scope for confusion: St Clair v Timtalla Pty Ltd and Anor (No 2) [2010] QSC 480, at [11]; following Bonitto v Fuerst Bros & Co Ltd [1944] AC 75, at p 82. The use of that conjunction could wrongfully lead the reader to assume it involves causation when all it achieves is obscurity: Moage Ltd (in liq) v Jagelman [1998] 153 ALR 711, at p 716. The applicability of the matters raised by that cited portion of the pleaded defence will depend upon an objective construction of what the parties intended by their contract: Toll (FGCT) Pty Limited v Alphapharm Pty Ltd & Ors [2004] HCA 52; (2004) 219 CLR 165. ..." Legislation 1. The plaintiff's claim of negligence must be assessed according to s 42 of the CLWA which provides for the standard of care as already identified at paragraph [332] above, and according to s 43, and s 44 of that Act concerning whether there was a breach of the duty of care that was owed. 2. Section 43 of the CLWA provides: 43 Precautions against risk - General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things): (a) the probability that the harm would happen if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity creating the risk of harm. 1. Section 44 of the CLWA provides: 44 Precautions against risk - Other principles In a proceeding in relation to liability for negligence— (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk. General consideration of the claim of negligence 1. In my assessment, having regard to conventional common law principles regarding the assessment of whether reasonable care had been exercised, the evidence in support of a finding that Dr Miniter was negligent in the events of 4 August 2010 and thereafter, is compelling. 2. However, a common law analysis is but the first step in the process of determining whether or not Dr Miniter was in breach of the duty he owed to the plaintiff: Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, at [14]. This is because, in addition, and slightly more demandingly, the plaintiff must, amongst other things, satisfy the three statutory pre-conditions for such a finding, as provided by s 43(1) of the CLWA: Shaw v Thomas [2010] NSWCA 169, at [44]. That case was concerned with s 5B(1) of the CL Act, however that provision is in identical terms to s 43(1) of the CLWA. 3. A consideration of those three pre-conditions now follows. Consideration of s 43(1) of the CLWA 1. Section 43(1) of the CLWA identifies the three required preconditions as foreseeability of harm, significance of risk, and the precautions that a reasonable person would have taken in the circumstances. Section 43(1)(a) of the CLWA – foreseeability of harm 1. I am satisfied that Dr Miniter's decision on 4 August 2010 to leave redundant non-functioning components of hardware in the plaintiff's right ankle gave rise to a foreseeable risk of harm, in that he must have known it was foreseeable such components could serve as a nidus for infection on, or near that hardware, as a consequence of its continued presence. On the evidence, I find that such a consequence must have been reasonably foreseeable to Dr Miniter, as an experienced orthopaedic surgeon, at the time he decided to elect not to remove that hardware: s 43(1)(a) of the CLWA. Section 43(1)(b) of the CLWA – not insignificant risk 1. For Dr Miniter's decision on 4 August 2010 to leave the redundant hardware components in situ in light of such foreseeable risk to be medically justifiable, it had to be based on sound reasons which were also consistent with the principles of patient autonomy. By leaving the redundant hardware in situ this necessarily involved an increased risk of infection, especially since the lateral side of the ankle was known to have been infected since 30 June 2010. To adopt the words of the statute, this was a "not insignificant risk" because, as is plainly apparent from the expert medical opinion evidence called in this case, that a nidus for infection might form at the site of redundant indwelling hardware, and such infection might then spread. This was a "not insignificant" risk: s 43(1)(b) of the CLWA. Section 43(1)(c) of the CLWA – precautions required of a reasonable person 1. In the circumstances, on 4 August 2010, when Dr Miniter took on the management of the plaintiff's ankle infection by undertaking operative intervention, and where in that process he knew that he had not removed the redundant hardware on the medial side, a reasonable person in his position, being an orthopaedic surgeon of ordinary skill and competence, was duty bound to take appropriate precautions. This is evident from his very specific explanation for non-removal, namely, he saw no sign of infection on the medial side of the plaintiff's ankle where the retained EndoButtons remained in situ, and he did not want to create an infection or a cross-infection at that site by making a surgical incision in that location: s 43(1)(c) of the CLWA. 2. In those circumstances, where those three preconditions are satisfied, the question to be determined is what a reasonable person in the position of Dr Miniter ought to have undertaken on 4 August 2010 and following, by way of precautions against the risk of harm from infection. 3. In my view, at the time of the operation performed by Dr Miniter on 4 August 2010, and earlier, in the planning phase which preceded that operation, when viewed prospectively, a reasonable person in the position of Dr Miniter had a number of options at his disposal in the nature of available precautions: s 43(1)(c) of the CLWA. 4. Consistent with notions of patient autonomy in making important decisions concerning treatment, Dr Miniter could have discussed with the plaintiff the option of either removing or leaving in situ the redundant hardware in the context of an existing infection to enable the plaintiff to understand the risks and benefits when deciding which course should be taken. Alternatively, he could have obtained the plaintiff's consent to leave it to him to make an intra-operative decision on that matter. Those precautions involved a shared responsibility for decision making on matters of risk to the patient. There is no reliable evidence that a conversation along either of those specific lines took place. 5. Instead, it seems that Dr Miniter took on that ultimate responsibility himself, namely of determining intra-operatively, whether or not to remove the redundant hardware remnants, guided by his clinical observations. That consideration was in turn guided by the presence of infection on the lateral side and by his apprehension about the possibility of causing a cross-infection on the medial side of the plaintiff's right ankle. 6. In my view, since Dr Miniter clearly made the decision to proceed without discussion with the plaintiff, he ought to have taken a series of precautions along the following lines of what a reasonable person in his position, being an orthopaedic surgeon of ordinary skill and competence, should have done in the circumstances, accepting that it was open to him as to whether or not he should make the cut on the medial side, having regard to the reasons he gave for not doing so. 7. First, Dr Miniter could have taken the precaution of making an unambiguous operation note and a related communication notation in the hospital records, and in his communication to other relevant practitioners. That step was indicated so that soundly based future treatment decisions could be made for the plaintiff based on accurate historical information. Instead, he left an ambiguous operation note, as has already been identified. The evidence tendered does not show any note either by him or someone on his behalf in the clinical progress notes, or in the form of a letter to the treating general practitioner, unlike in his earlier correspondence addressed to the plaintiff's general practitioner on 17 June 2010: Exhibit "1", Vol 1, p 239. 8. Secondly, Dr Miniter could have taken the precaution of informing his patient, the plaintiff, as to what was done and what was not done in the operation on 4 August 2010, and what still needed to be attended to in the future and when, if the preferred decision was to leave redundant hardware in situ. There is no evidence the plaintiff was informed by Dr Miniter that he still had remnant redundant hardware in his ankle that had the potential to form a nidus for possible future infection. 9. Thirdly, since redundant medial hardware had been left in situ on account of the presence of infection on the lateral side, Dr Miniter ought to have taken the precaution of establishing a future management plan for the plaintiff that included informing him of the continued presence of that material, the significance of its continued presence concerning the possibility of future infection, also including a discussion of a plan for a clinical review, with a view to arranging for its removal at a suitable time. There is no evidence that Dr Miniter took any of those precautions. 10. Fourthly, the evidence discloses that on 4 August 2010, and thereafter, it was essential for Dr Miniter to take the precaution of arranging for an infectious diseases specialist to take on the responsibility of managing the plaintiff's then current treatment needs for so long as his osteomyelitis was considered to be active and not cured. Appropriately, Dr Miniter in fact took that latter precaution by ensuring that Dr Senanayake, the hospital's infectious diseases specialist, took responsibility for the management and treatment of the plaintiff's infection issues. 11. In my view, it follows that in only taking the last of those identified precautionary steps, Dr Miniter took insufficient precautions in comparison to the plaintiff's circumstances of risk, and in relation to his need for appropriate information that was relevant to his future care needs: s 43(1)(c) of the CWLA. 12. Although the evidence discloses that Dr Senanayake was in communication with Dr Miniter between July and November 2010 through the correspondence Dr Senanayake had sent to Dr Miniter to keep him informed of the plaintiff's progress, there is no evidence of any verbal communication between them, either unilaterally or bilaterally. 13. Dr Senanayake's correspondence to Dr Miniter on 14 August 2010, which showed that Dr Senanayake had incorrectly assumed that all redundant ankle hardware had been removed, raised a question as to whether Dr Miniter had understood from that letter, that Dr Senanayake had been labouring under a misapprehension over whether or not all redundant hardware had been removed at the operation on 4 August 2010. There is no evidence that Dr Miniter took any steps to correct any such misapprehension on Dr Senanayake's part. The matter was not explored with Dr Miniter in his oral evidence. 14. In that latter regard, I place no determinative weight on the absence of such evidence because it was not raised with Dr Miniter in cross-examination, and I do not discount the possibility that there may have been correspondence on that topic, but that the parties, in their approach to the issues, may have considered it to be irrelevant, and therefore they did not include any such correspondence in their exhibit volumes. 15. That said, the latter point would appear to be a doubtful explanation, given Dr Senanayake's expression of surprise, on 27 July 2017, where he made a note to that effect, suggesting redundant hardware was "discovered" in the plaintiff's right ankle on the medial side: Exhibit "1", Vol 1. 16. In my view, at or shortly after the operation on 4 August 2010, a reasonable person in the position of Dr Miniter would have made a clear note as to what hardware components had been left in situ on that occasion. The purpose of such a note would have been multifactorial. First, if at a later date he happened to be the managing surgeon confronted with the challenge of treating a possible recrudescent infection, he would have had a note available to remind or inform himself of what the underlying issues were. Secondly, it was necessary to make an allowance for the possibility that he may not have been that practitioner who might have been called upon to treat a future recrudescent infection. It was foreseeable that in such circumstances, any other such practitioner would be assisted in the required management decisions by the availability of an accurate clinical note of what was done and what was left undone at the surgery carried out on 4 August 2010. 17. It would have been important for the plaintiff to have an accurate understanding of his medical history, or for a detail of it to be accurately recorded and available in his medical records. 18. For example, in a prior hospital admission, on 7 June 2009, in the pre-admission form, the plaintiff was asked to answer the question of whether there was anything relevant in his past medical history that he thought might be relevant to that admission. He answered that, 20 years previously, he experienced an asthma attack under anaesthetic: Exhibit "1", Vol 1, p 248. 19. In the present context, if the plaintiff had required a hospital admission prior to 25 July 2017, knowledge of the continued presence of indwelling remnants of redundant elements of fixation hardware would be a highly relevant matter for him to know, and for him to disclose to those treating him on such an occasion if he knew of that fact. Consideration of s 43(2) of the CLWA 1. As the three pre-conditions necessary for a negligence finding have been established, along with the need for precautions to be taken against the risk of harm, as explained above, it is necessary to evaluate the factors that must be considered according to the requirements of s 43(2) of the CLWA, namely the probability of harm occurring if precautions were not taken, the likely seriousness of that harm, the burden of taking precautions, and the social utility, if any, that created the risk of harm. Section 43(2)(a) of the CLWA – probability of harm 1. I am satisfied that if reasonable precautions were not taken on 4 August 2010 in the face of the risk of harm from infection, such harm would be likely to foreseeably occur. Foreseeable harm could have arisen from an eruption of infection at any time because infectious organisms were likely to have lurked in the glycocalyx. In those circumstances, such organisms could have become attached to redundant hardware that had not yet been removed. The presence of redundant hardware increased the risk of infection. Dr Miniter's decision on 4 August 2010 not to remove that redundant hardware, and his failure to establish a plan for its future removal in conjunction with a discussion with the plaintiff as to timing for removal, increased the probability of occurrence of harm from infection if the identified precautions were not taken: s 43(2)(a) of the CLWA. Section 43(2)(b) of the CLWA – seriousness of harm 1. In my view, the probability of harm from infection would have been high if the identified precautions were not taken at or shortly after 4 August 2010. The nature of osteomyelitis infection, as described in the evidence of the infectious diseases experts, represents a serious source of potential harm. Apart from infective organisms having the propensity to unexpectedly emerge from concealment in the glycocalyx, once they take hold, they can be difficult to control or eradicate, especially in the presence of retained redundant surgical hardware, and for so long as osteomyelitis remains fulminant, it had the capacity to cause serious and injurious harm, including sepsis and possibly death. It should therefore be characterised as a serious risk of harm warranting the taking of reasonable precautions of the kind identified: 43(2)(b) of the CLWA. Section 43(2)(c) of the CLWA – burden of taking precautions 1. In my view, on a prospective analysis, on 4 August 2010, any burden on Dr Miniter in taking the precautions of the kind identified at paragraphs [396] to [411] above, would not have been great, or unduly burdensome on him, given his professional responsibilities when weighed alongside the potential risk to the health of his patient if reasonable precautions appropriate to the circumstances had not been taken. 2. If Dr Miniter had taken the time to make a sufficiently detailed contemporaneous operation note to accurately and unambiguously identify what hardware was removed and what hardware remnants were left in situ, this would only have occupied but a few moments of his time. That note, and an explanatory letter to the plaintiff's treating general practitioner, could have been made at a time of his choosing, reasonably contemporaneous to the operation. It was a facet of his professional responsibility at the time. Taking that precaution would have enabled him to refresh his recollection of what took place at the operation on 4 August 2010 and this would have enabled a convenient comparison to be made with what had been done by him on 10 May 2010 and on 30 June 2010. This would enable him, or someone in his stead if that happened to be the need at a later point in time, to make careful decisions on the nature, extent and detail of the medical and surgical care the plaintiff may need at the time: Elayoubi v Zipser [2008] NSWCA 335. 3. The fact that remnant hardware had been left in situ would not have been difficult for another interested medical practitioner to ascertain on reading the medical records if Dr Miniter had made an unambiguous note along those lines. Furthermore, if an unambiguous note had been made by Dr Miniter, it would seem unlikely that Dr Senanayake would have been misled into thinking all hardware had been removed on 4 August 2010, as was evidenced by his "discovered" note, and his letter to Dr Miniter dated on 18 August 2010: Exhibit '1", Vol 2, pp 548 – 549. 4. It was foreseeable that Dr Miniter may not have been the only medical practitioner, orthopaedic surgeon, or infectious diseases physician, whom the plaintiff might have needed to consult after 4 August 2010 about his right ankle. The plaintiff could have foreseeably needed to see his general practitioner and possibly another orthopaedic surgeon and an infectious diseases physician for management of his ankle problems. That might have become an issue on account of Dr Miniter's availability, or because of the geographic location of the plaintiff at a future point in time. In those circumstances it would have been a relevant precaution for the plaintiff to have been provided with accurate and salient details of his surgical history to enable appropriately informed decisions to be made on aspects of any proposed further medical treatment. An example of that factor at work was the earlier inquiry made of the plaintiff about his past history of asthma and his tolerance of an anaesthetic drug as it had become a relevant matter to consider prior to impending surgery: Exhibit "1", Vol 1, p 248: s 43(2)(d) of the CLWA. Section 43(2)(d) of the CLWA – no relevant social utility 1. In my view, there was no social utility or any similar benefit to be gained from not taking the identified precautions: s 43(2)(d) of the CLWA. This is not a case where the evidence suggests that on a balanced view there was a risk worth taking. This is because at the time the decision was made, the plaintiff was not relevantly aware of the risk: Waverley Council v Ferreira [2005] NSWCA 418, at [50]. Consideration of s 44 of the CLWA 1. As the plaintiff has satisfied the requirements of s 43 of the CLWA it is necessary to consider the provisions of s 44 of that Act insofar as they affect this case. Section 44(a) of the CLWA – burden of precautions for similar risk 1. In my view, an orthopaedic surgeon in the position of Dr Miniter ought to have taken the precautions suggested. The burden of taking precautions must be assessed within the statutory framework of the duty to take reasonable care in accordance with the statutory requirement to do so: s 42 of the CLWA. That is a different test compared to what Dr Miniter's professional peers might have done in similar circumstances. In that regard, the expert opinions suggesting Dr Miniter acted reasonably must be rationally justified according to the factual circumstances rather than simply asserting what peers might have done in equivalent circumstances. The latter proposition, which might have had some relevance to a defence based on s 5O of the CL Act (NSW), has no statutory application in this case: s 44(a) of the CLWA. Section 44(b) of the CLWA – avoidability of doing things differently 1. The plaintiff's case of a claimed breach of duty of care is not based on the simple proposition that the relevant risk of harm could have been avoided by Dr Miniter doing something in a different way. Rather, it is based on the proposition that, when viewed prospectively, Dr Miniter ought to have proceeded according to the requirements of reasonable care in the described circumstances, which in this instance, meant not leaving elements of redundant surgical hardware in situ: s 42 and s 44(b) of the CLWA. Section 44(c) of the CLWA – relevance of subsequent actions 1. No relevant considerations or inferences arise from Dr Miniter taking subsequent actions in July 2017 compared to August 2010 as there was no equivalence in the circumstances. On 4 August 2010, the plaintiff showed no external signs of infection to the medial aspect of his right ankle, whereas, on 25 July 2017, his ankle was seriously affected by infection so that urgent surgery was required: s 44(c) of the CLWA. Conclusion on breach of duty of care 1. For the reasons outlined in paragraphs [366] to [426] above, I am satisfied that on 4 August 2010 Dr Miniter was relevantly in breach of the duty of care that he owed to the plaintiff as his patient. I am also satisfied that such breach continued to have effect after 4 August 2010. Issue 7 – Consideration of expert evidence on causation 1. The respective evidence of Professor Guinness and Professor Braslins, the infectious diseases experts, was necessarily based on the interpretation of the results of microbiological cultures grown from intra-operative swabs taken at the time of the various surgical procedures that Dr Miniter performed on the plaintiff. 2. The evidence of the manner and extent to which the intra-operative wound swabs were taken was left in an imprecise state and not clarified by other evidence. 3. The microbiological test results as identified in the evidence do not provide sufficiently precise descriptions to clarify the various sites in the surgical field that were swabbed so as to lead to those results. Nor do those results identify the time sequences for the various samplings taken on the respective operation dates. 4. This is in the context of expert evidence which referred to the possibility of different degrees of diligence in intra-operative swab sampling practices, which in turn raised the possibility that single swabs may have been used to cumulatively sample different parts of the surgical wound at different times during the respective operations: T229.24 – T229.41. Those are matters that cannot be assumed as some kind of presumption of regularity. They must be the subject of reliable evidence. 5. The limited nature of the evidentiary descriptions as to the sequences in which such swabs were taken has created doubt concerning the reliability of drawing conclusions as to the timing of emergent infections from the cultures grown from the surgical swabs in terms of recurrence of infection or the occurrence of new infection. 6. This necessarily limits the facility for the infectious diseases experts to draw definitive conclusions from those results as to when, or if, certain organisms were likely to be present or absent at particular times, namely on 7 May 2010, 30 June 2010, 4 August 2010 or 25 July 2017. The facility for an analysis along those lines is also confounded by the fact that the infective organisms in question had the potential to lay "doggo" or lurk undetected in the glycocalyx, notwithstanding that there might have been some negative microbiological cultures that suggested those organisms were not present. 7. The respective analytical opinions of the infectious diseases experts were expressed to be on the balance of probabilities. An opinion arrived at along those lines requires a reasoned identification and consideration of competing possibilities so that such possibilities could be weighed and balanced, including by a process of excluding identifiable improbabilities if reasonably possible, in order to identify the most probable explanatory cause of the harm claimed by the plaintiff: UCPR r 31.27(1)(c); Sch 7 cl 3(e). 8. It is against that background that I am required to wrestle and grapple with the differing aspects of the respective expert opinions in order to identify a reasoned preferred view on disparate aspects of the disputed opinions of Professor Guinness and Professor Braslins: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, at [28]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [66]. That step is a necessary pre-condition to be undertaken before proceeding to make findings on the causation issues that have arisen and which require determination in this case. 9. An aspect of the common ground between Professor Guinness and Professor Braslins was that, on 10 May 2010, the hardware devices comprising the fixation plates and associated screws, the anchors and the sutures connecting the EndoButtons, most likely became inoculated with the organisms Staphylococcus Aureus and Pseudomonas Aeruginosa, and that those organisms were present at the surgery performed on 30 June when the EndoButtons were removed on the lateral side of the plaintiff's right ankle. 10. Whilst it was also generally accepted that the presence of retained surgical fixation devices may increase the risk of infection, it was also generally accepted that a recrudescence of infection might also occur where there were no retained surgical devices: T243.6 – T243.8. 11. Following the operation on 25 July 2017, cultures grown from swabs taken at that time grew Staphylococcus Aureus: Exhibit "1", Vol 1, p 407.95. There were two competing theories for the presence of that organism in the plaintiff's surgical wound on that date. 12. Whereas Professor Braslins believed it was most likely the result of bloodborne seeding of the remnant fixation hardware from a later infection in 2016, that theory must be read in light of the uncontested common ground evidence that such organisms can remain concealed or undetected in the biofilm of a fixation device, and potentially lurk in the glycocalyx: Exhibit "B", p 24; Exhibit "1", Vol 1, p 55, pp 56 – 57. 13. It was plain that in reaching their differing opinions, both Professor Guinness and Professor Braslins, as expert infectious diseases physicians, did their best to apply their knowledge, training, skill and experience to the causation analysis required in this case. 14. Nevertheless, on reviewing their written opinions and considering their explanatory oral evidence with regard to those opinions, I was left with the impression that the causation analysis that arises for determination in this case was necessarily confounded due to significant unknown variable factors in the mix of considerations relevant to that analysis. 15. Foremost amongst those variables was the combination of an absence of particularity of description concerning the precise sites within the surgical wound where all of the various surgical swab samplings were taken, and an absence of a precise identification of the particular stage of the surgical procedures when the respective swabs were taken, that is before or after clearing and cleaning debris from the wound. A further confounding factor was evidence of the possible use of a single swab to take samples from multiple locations within the surgical field of particular operations. That factor was not clarified by factual evidence. 16. A further confounding factor was the limited explanatory detail in Dr Miniter's 4 August 2010 operation note regarding the taking of swabs and the co-relation of the description in the operation note dated 30 June 2010, which made no mention of pus, compared to Dr Miniter's description in his oral evidence, of the presence of abundant pus. This was a matter raised by the expert evidence at the trial, but not further explored: T234.45 – T235.30. 17. Neither party sought to explore or clarify those matters in the evidence of Dr Miniter, either when he gave his evidence, or by way of an application for him to be recalled to give evidence on those matters. He might have been able to throw light on those matters, if not by reference to an actual recollection of what he did at the relevant times, then by reference to his usual surgical practice at the time. This was an issue upon which the plaintiff carried the onus of proof: s 46 of the CLWA. 18. Those confounding factors must necessarily influence the reliability of the range of culture results grown from surgical swab samples taken at the time of the plaintiff's various procedures as a basis for drawing inferences and making findings of fact concerning when the plaintiff's actionable osteomyelitis occurred and why that was so. 19. Without intending any disrespect to the analytical efforts of the infectious disease experts, who as highly qualified medical scientists, without doubt, did their best to proffer reasoned explanations concerning the timing of the plaintiff's various infections, a causation analysis according to law must proceed on a non-speculative and adequately reasoned basis, and which necessarily eschews unwarranted conjecture and speculation. The scientific papers identified in the evidence did not assist that task. 20. The foregoing perspectives arising from the evidence of the infectious diseases physicians will guide my evaluation of the question of whether or not the breach of duty of care as found and explained in paragraphs [366] to [427] above, was the relevant cause of the plaintiff's claim of harm. Issue 8 – Causation of harm 1. The plaintiff faces the evidentiary challenge of proving, on the balance of probabilities, that Dr Miniter's breach of duty of care, has caused him to suffer harm from an infection that would not otherwise have occurred but for that breach of the duty of care owed: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [18]. 2. That challenge involves three elements that have a basis in the legislation which must be applied. The first requirement is that the plaintiff must demonstrate precisely the harm that he has actually incurred, secondly, he must satisfy the but for test for factual causation as required by s 45(1)(a) of the CLWA, and thirdly, he must satisfy the scope of liability test as required by s 45(1)(b) of the CLWA. Legislation 1. Section 45 of the CLWA provides: "45 General principles (1) A decision that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the happening of the harm ('factual causation'); (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (the scope of liability ). (2) However, if a person (the plaintiff ) has been negligently exposed to a similar risk of harm by a number of different people (the defendants ) and it is not possible to assign responsibility for causing the harm to 1 or more of them— (a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but (b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability. (3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party. 1. On the facts as found in this case, the provisions of s 45(2) and (3) of the CLWA are not relevant to the present causation analysis. Background considerations to causation analysis 1. The starting point for the causation analysis is to recognise and to give due weight to Dr Miniter's description of his assessment of the plaintiff's initial injury. His assessment was that the impact involved a large energy exchange which was of a sufficient damaging force that not only caused bony fractures, but it also most probably caused injury to the surrounding soft tissues, which raised the spectre of soft tissue damage and the potential for possible wound breakdown to occur after surgery, even in the face of proper treatment. If wound breakdown occurred, then infection was an increased foreseeable consequence. 2. The evidence discloses that once wound breakdown occurs, a resultant osteomyelitis infection, if it also occurs, can be difficult to treat. Furthermore, although the result of treatment for osteomyelitis may give the appearance of osteomyelitis having been cured or eradicated, the infectious diseases experts agree that the relevant infective bacteria may continue to lurk in the glycocalyx or in the biofilm, where they may later emerge, even after decades, as a recrudescence or flare-up of infection. 3. Another important analytical point of observation is that recalcitrant infection, which can arise from an extensive array of potentially infective and virulent bacterial organisms, can be due to a non-negligent breakdown in aseptic techniques in the setting of a hospital operating theatre. The respective infectious diseases experts considered this to be a credible theory in this case. 4. A further important analytical point of observation is that an osteomyelitis infection may recur or become reactivated through a process of blood borne seeding that has a genesis in other surgical procedures or circumstances involving skin breakages, of which the plaintiff has had several. In that regard, the spectre of a skin infection that was incurred by the plaintiff in 2016, as identified in the evidence of the infectious diseases physicians, raises that mechanism of infection as another credible possibility in this case to explain the origin of the plaintiff's osteomyelitis. 5. In considering that array of potential causative mechanisms for the plaintiff's osteomyelitis it must also be recognised that the duty of care Dr Miniter owed to the plaintiff was to take reasonable care against the potential for foreseeable harm. It did not extend to a duty to either entirely prevent the occurrence of infection from foreseeable causes, or to cure such infection once it had presented itself: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [18]. 6. When the plaintiff's surgical wound was recognised to have become infected in June 2010, and thereafter, until 3 November 2010, it was treated aggressively and appropriately. The only criticism of the management of the plaintiff's infection came from the already cited unsupported comment within the evidence of Dr Miniter concerning an assertion of poor management of infection: T137.42. That criticism, which did not form any part of the plaintiff's case, was not further explained by Dr Miniter, and it was not supported by reasoned explanatory evidence from the respective infectious diseases experts. 7. It is against that background that the plaintiff must identify the actual harm he has suffered and he must also mandatorily satisfy the two elements for proof of causation of the harm he has suffered, as provided by s 45(1)(a) and (b) of the CLWA. 8. Satisfaction on those matters must be demonstrated on the balance of probabilities, by means of a reasoned and non-speculative analysis, to justify a conclusion to the effect that it was more probable than not that the plaintiff's osteomyelitis recurred in mid-2017 due to a relevant breach of duty of care on the part of Dr Miniter. 9. In seeking to ascribe the claimed harm to a negligent cause, a conclusion to that effect must be arrived at by sound reasons, and not simply arrived at by means of preferring one speculative or conjectural position over another equally conjectural position: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54, at [80]-[84], [138], [153], [161]; UCPR r 31.27(1)(c), Sch 7 cl 3(e). 10. It is insufficient to simply show that the claimed harm may perhaps have been avoided. The requirements of legislation framed in the terms of s 45(1)(a) are more demanding in that the particular harm must be identified with sufficient precision for the "but for" test of causation to be applied. That test is not satisfied by simply showing that a demonstrated breach of duty of care by the defendant may have been or was a possible cause of the harm claimed. A positive finding to the effect that the harm in question was more probably than not caused by the breach of duty of care is required for the "but for" test to be satisfied: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48, at [44]-[45]; Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19, at [11]; Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12, at [46]. 11. The plaintiff must demonstrate that "but for" the defendant's breach of duty, the harm most probably would not have occurred. In that regard, a distinction must be made to the alternative and more simplistic analysis, namely, an instance of the risk of harm having simply played itself out as an historical occurrence without a causal connection of the kind demanded by the statute: Naxakis v Western General Hospital (1999) 197 CLR 162; [1999] HCA 22, at [36]; Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12, at [142]; Amaca Pty Ltd v Ellis [2010] HCA 5, at [65]. Requirement of precise identification of the harm incurred 1. It is first necessary to identify the starting point of the plaintiff's claimable loss, and to then identify the extent to which that loss continued. 2. Taking the plaintiff's pleaded case on causation at its highest, the date of 4 August 2010 was the earliest time at which Dr Miniter considered it was appropriate to remove any fixation hardware from the plaintiff's right ankle. This was because when he first considered doing so, in the known presence of infection, on 30 June 2010, he concluded that insufficient bony healing had occurred at that time to justify removal of redundant hardware. On the evidence adduced in this case, Dr Miniter's decision, and the clinical judgment upon which he based that decision, is unassailable as to its reasonableness and its appropriateness. 3. In proceeding to the next analytical step in the causation analysis, the operation date of 4 August 2010 should not necessarily be seen to be the starting point of the plaintiff's claimable loss. This is because Dr Miniter's clinical judgment that he did not want to create a cross-infection on the medial side on that date on account of an already established lateral infection, was in effect a clinical judgment acknowledged by Professor Guinness. It was that acknowledgment which based his commentary to the effect that an operation for removal of the redundant medial hardware could have been delayed by a further month or so after 4 August 2010 whilst the lateral infection was treated and brought under control, if not eradicated. At that time, a clean elective procedure could have been undertaken. 4. That said, an eradication of infection within a month or so of 4 August 2010 seemed on the evidence to be an unlikely prospect given it was of a deeply entrenched and septic nature. Absent evidence of the existence of a bright line date for probable eradication of an infection, some further leeway is required beyond 4 August 2010 for establishing a notional starting point for identification of the plaintiff's loss. 5. On the evidence, I consider that a fair starting point for identifying the commencement of harm and loss would be in the range between December 2010 to January 2011. That conclusion has its foundations in Dr Senanayake's letter dated 3 November 2010 to Dr Miniter, in which Dr Senanayake stated that the plaintiff's osteomyelitis infection could be considered as having been cured. 6. In a causation analysis, where hindsight considerations are permissible, that period seems to be a reasonable time range for the removal of hardware having regard to Dr Miniter's expressed concern over not wanting to create a cross-infection from the lateral side to an unaffected medial side. 7. That date range also allows for the fact that it was likely Dr Miniter had a busy public and private practice workload, where possible end of year holiday delays might have influenced the timing of elective surgery for removal of the redundant medial hardware. 8. That said, on the expert evidence, it is not possible to state with any degree of reliable certainty on the balance of probability that had such removal surgery occurred at around the end of 2010 or the beginning of 2011, the plaintiff would not have incurred either a cross-infection as a result of disturbing otherwise quiescent organisms lurking in a state of concealment in the glycocalyx or biofilm, or alternatively, that the plaintiff would not have incurred a further infection due to a possible breakdown of hospital infection control procedures in the operating theatre, which the infectious diseases experts considered to have previously occurred on 10 May 2010. 9. In light of those considerations, and assuming there were no other adverse consequences from the removal surgery, no pain, suffering and loss of amenity of life is likely to have accrued from late 2010 or early 2011 to mid-May 2017. In that period the plaintiff also had some unrelated health issues that caused him difficulty, but it is unlikely that those matters would have had any significant influence on an award of damages. 10. On the basis of the above analysis I find that the plaintiff's claim of harm should be considered to have only commenced in May 2017 when osteomyelitis became apparent. Between November 2010 and May 2017 he had no relevant symptoms. That finding must be the basis for any assessment of damages. 11. In reaching that conclusion, I have not overlooked that aspect of the opinion of Professor Higgs to the effect if foreign fixation devices are left in place this is well known to predispose to localised infection and persistence of infection: Exhibit "B", Tab 1, p 10. That view, and his view that the plaintiff lost the opportunity for a better outcome, must be recognised as not representing a definitive causation analysis. Damages are not awardable for a loss of a chance of a better outcome per se: Chappel v Hart [1998] HCA 55; 195 CLR 232. Factual causation – s 45(1)(a) of CLWA 1. The requisite standard of proof for establishing that, but for the identified breach of the duty of care, the plaintiff's osteomyelitis would not have emerged in mid-2017, is proof on the balance of probabilities: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [18]. The plaintiff bears the onus of proof in that regard: s 46 of the CLWA. 2. I consider that when viewed in combination, nothing from within the oral evidence on factual matters, the documentary evidence, nor the expert evidence, reliably compels a finding to the effect that, but for Dr Miniter's breach of duty of care as found in this case, it was more probable than not that the harm claimed by the plaintiff would not have occurred: s 45(1)(a) of the CLWA; Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [18]. 3. I consider that conclusion necessarily arises in view of the following elements within the evidence: 1. The plaintiff's ankle wound breakdown due to infection in May, June and July 2010 cannot reasonably be said to have been due to fault on Dr Miniter's part; 2. The continued presence of infection in the plaintiff's ankle in August 2010, and which proved to be difficult to treat and control, cannot reasonably be said to be due to fault on Dr Miniter's part; 3. The continuation of the assumed infection under treatment between August 2010 to 3 November 2010, cannot reasonably be said to be due to fault on Dr Miniter's part. 1. The relevant question therefore, is whether the emergence or recurrence of an infection in the plaintiff's right ankle in mid-2017 can reasonably be said to be due to fault on Dr Miniter's part. 2. The plaintiff faces the particular challenge of affirmatively proving beyond conjecture that the facts of this case displace the general proposition identified in the evidence, namely, that it is possible for a Staphylococcus Aureus to recur regardless of whether or not fixation devices remained present: T243.6 – T243.8. 3. Another challenge the plaintiff faces in establishing causation emerges from the evidence of the infectious diseases physicians on the factual question of the method, location and extent of the intra-operative swabs taken at the respective operations on the plaintiff's right ankle. 4. The factual descriptions of the method, location and extent of those swabs was scant, as already identified and explained in these reasons at paragraphs [233] to [237], [429] to [434] and paragraph [444] above. 5. In my view, the absence of satisfactory factual detail and resultant uncertainties as to the sampling sites for those swabs in this case creates an unsurmountable obstacle to achieving a reasoned non-speculative affirmative conclusion on the required causation analysis. 6. As observed at paragraph [240] above, Professor Guinness accepted that as at 4 August 2010, the plaintiff's Staphylococcus Aureus and Pseudomonas infections could have been either eradicated or suppressed: T230.45 – T231.18. If they were suppressed, to adopt the terminology used in the evidence, they would have then been "laying doggo" and lurking in the glycocalyx, as explained at paragraphs [240] to [244] above. This was at a time when there was no need for further testing. Eradication, which was assumed by Professor Braslins, could not be reasonably confirmed without unwarranted speculation. 7. In this context, recognising that osteomyelitis from a Staphylococcus Aureus infection can recur regardless of whether or not fixation devices remained present (T243.6 – T243.8), and it can recur "years down the track" (T242), the plaintiff must point to a non-speculative reason for asserting that it was the indwelling remnants of the redundant hardware that caused the recurrence. 8. In my view, the following combination of factors is an obstacle to a finding along those lines. 9. First, on the evidence adduced, it is not possible to rationally determine whether the plaintiff's osteomyelitis due to Staphylococcus Aureus was either eradicated or just suppressed and "lying doggo" so that it could recur. Secondly, it is not possible to reasonably exclude the hypothesis advanced by Professor Braslins that the plaintiff's cellulitis infection in 2016 caused Staphylococcus Aureus to enter the bloodstream and lodge at the site of the previous surgery to then become a clinically evident infection, as explained at paragraphs [257] to [259] above. 10. Whilst it is undoubted that the presence of a foreign body can increase the risk of infection by providing a focus for a blood borne infection, whether of longstanding or recent origin, the risk of that occurring was described as low: T252.4 – T252.24. 11. Those matters represent obstacles to a reasoned analysis that favours the plaintiff's causation case. 12. In arriving at that conclusion, I intend no disrespect to the erudition and efforts applied by the respective infectious diseases experts, who undoubtedly did their best on the limited material that had been made available to them. 13. On the ultimate question, the true position was aptly summed up by Professor Guinness, where in his joint report with Professor Braslins, in answer to the causation question posed to him, namely what is the most likely cause of the plaintiff's infection which required surgery on 25 July 2017, he replied: "The answer is only known to God": Exhibit "B", p 199. I construe that evidence to mean that the cause is not ascertainable by a reasoned and non-conjectural analysis undertaken on the balance or probabilities. 14. In order to satisfy the but for test of causation the plaintiff must show, by reliable probable exclusion, that: 1. The organisms that caused the osteomyelitis he incurred in 2010 were effectively eradicated in the months following the 4 August 2010 surgery. Dr Senanayake's 3 November 2010 letter to Dr Miniter suggests that was the case by means of clinical impression because of wound healing, but that was not a definitive conclusion given that such infection can remain concealed and inactive for decades before later re-appearing; 2. The skin infection he incurred in 2016, was unlikely to be a causative factor in him developing osteomyelitis. The evidence raises the possibility that it was a causative factor, as was identified by Professor Braslins. That possibility has not been satisfactorily excluded. 1. On the basis of non-controversial evidence to the effect that retained redundant hardware could become a nidus for infection, this raises the question of whether that hardware, in this instance, most probably became a nidus for infective organisms that invaded in 2016, to produce osteomyelitis in mid-2016. 2. In my view, the evidence comprising the microbiological test results and the expert evidence of the infectious diseases specialists does not elevate that question any higher than as a conjectural possibility. An affirmative finding on the balance of probabilities does not reasonably arise on the evidence: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54, at [80]-[84], [138], [153], [161]. 3. The fact that new organisms were detected by Dr Senanayake in 2017, which he found to be an odd occurrence in the circumstances (Exhibit "1", Vol 1, p 407.95) is not a determinative factor in view of the sampling issues earlier identified. It is an unresolvable conundrum that arises from the evidence. That must be so because of the evidence of the infectious diseases physicians to the effect that such infective organisms can lurk undetected in the glycocalyx, and may emerge, years later, as a fulminant infection. 4. On the evidence adduced, it is difficult to see how one could determine, by reasoned analysis that on the balance of probabilities, the plaintiff's osteomyelitis in 2017 would have been an unlikely occurrence had Dr Miniter removed the redundant hardware in the plaintiff's right ankle within a reasonable timeframe after 4 August 2010. 5. Whilst there is no doubt that the infectious diseases experts did their best to analyse the timing of the appearances of different infective organisms grown from swab cultures taken at different times, the factual uncertainties as to sampling methods, as identified in the evidence, means that the plaintiff's causation arguments are necessarily based on a great deal of speculation that is impermissible in a legal analysis for affirmatively finding that causation has been established. 6. For the above reasons, on balancing the factors identified, I find that the plaintiff's arguments in favour of the retained elements of hardware forming a possible nidus of infection does not compel a positive finding to that effect on the balance of probabilities to the rational exclusion of other competing possible causes for the infection. Factual causation therefore remains unproven. Scope of liability – s 45(1)(b) of CLWA 1. As the plaintiff has not proven factual causation as required by s 45(1)(a) of the CLWA, the more demanding question of scope of liability pursuant to s 45(1)(b) of the CLWA does not arise for consideration. Conclusion on causation 1. For the above reasons, I find that the plaintiff has not established that Dr Miniter's breach of duty of care was the relevant cause of his claimed harm: s 45(1) of the CLWA. Issue 9 – Alleged contributory negligence 1. The defendant has pleaded a claim of contributory negligence on the plaintiff's part. In light of my findings on causation, that defence does not ordinarily arise for further consideration. However, for completeness, lest I be found to be wrong in my findings on causation, I will identify my findings that would otherwise relate to that defence. 2. In rearranged logical order, the pleaded particulars of contributory negligence are to the effect that the plaintiff failed to adhere to medical advice that he needed to rest, elevate his limb and allow time for recovery rather than resume employment a short period after the surgery, and that he failed to seek medical treatment between 4 August 2010 and 25 May 2017. 3. The defendant's contributory negligence plea was stated to have been made in reliance of Pt 1A of the CL Act, which has no relevance to these proceedings. Instead, the defendant's claim of alleged contributory negligence on the part of the plaintiff must be determined according to s 47 of the CLWA, which provides as follows: 47 Contributory negligence can defeat claim In deciding the extent of a reduction of damages because of contributory negligence, a court may decide on a reduction of 100% if the court considers it is just and equitable to do so, with the result that the claim for damages is defeated. 1. For the reasons that now follow, I consider that the defendant's claim of alleged contributory negligence must fail. 2. I have not accepted the defendant's factual assertion that the plaintiff relevantly failed to rest and elevate his leg and allow sufficient recovery time following the operation on 10 May 2010. That assertion, which was based on Dr Miniter's view that there had been dependent use or weight bearing on that leg has not been made good. That assertion was not reflected in Dr Miniter's contemporaneous correspondence to the plaintiff's treating general practitioner. 3. In light of Dr Miniter's view to the effect that the severity of the energy exchanged in the circumstances of the plaintiff's initial injury could have had an influence on the breakdown of the surgical wound following the surgery on 10 May 2010, it is difficult to see how the defendant could sustain a contributory negligence argument. That is so particularly since the defendant is unable to satisfy the breach and causation requirements of s 43, s 44 and s 45 of the CLWA that necessarily apply in relation to a defence of alleged contributory negligence. 4. The alleged failure of the plaintiff to seek medical treatment between 4 August 2010 and 25 May 2017 is an ill-founded proposition upon which to base a claim of contributory negligence in this case. That conclusion arises for two reasons. 5. First, the plaintiff did in fact seek medical treatment from his general practitioner and from Dr Senanayake between 4 August 2010 and 3 November 2010, as was well known to Dr Miniter, as is evidenced from Dr Senanayake's correspondence to him in 2010. On 3 November 2010, the plaintiff was discharged from such treatment as his infection was considered to be cured. Secondly, between 3 November 2011 and mid-May 2017, the plaintiff had no relevant symptoms for which treatment ought to have been sought by him. He promptly sought treatment in mid-2017 when his symptoms arose. 6. Dr Miniter's pleaded defence of contributory negligence is unsupported by the evidence. I therefore conclude that if the plaintiff had succeeded on the causation issue, the defence of alleged contributory negligence would necessarily have been rejected. Issue 10 – Assessment of damages 1. Notwithstanding my findings to the effect that the plaintiff has not succeeded on the ultimate liability issue of causation, and in accordance with convention, lest I be found to have erred in arriving at those findings, I will proceed to identify in brief terms, the assessment of damages that I would otherwise have awarded on the evidence adduced if the plaintiff's claim had succeeded in his claim against the defendant. Non-economic loss 1. According to the law of the ACT, non-economic loss, or general damages for pain, suffering and loss of amenity of life, is to be assessed according to common law principles. 2. The plaintiff claims damages for non-economic loss in the amount of $100,000. 3. That submission is advanced on the basis that the plaintiff was required to undergo further surgery on 25 July 2017 as a result of the emergence of osteomyelitis in May of that year, and because his level of physical functioning has not returned to his pre-2017 levels. He also claims this has negatively impacted upon his ability to work, his relationships with his daughters, and with his wife from whom he is now separated. He accordingly claims that he will continue to lose the amenity and enjoyment of his life. He also claims to have developed a consequential and recognised psychiatric injury. 4. In contrast, on behalf of the defendant, it was submitted that the range of general damages that would be awardable in the ACT in the plaintiff's circumstances would be in the range of between $35,000 and $50,000. In support of that submission, the defendant made reference to what were submitted as being appropriate comparative awards, as is permitted by s 99 of the CLWA. 5. The assessment of damages for non-economic loss is an evaluative exercise. The extent of the impact of psychological problems is a unique factor to be considered in each case. This is confirmed in the decisions to which the defendant has referred. 6. In this case, the plaintiff has some additional scarring from the further operations that he required as a result of incurring infections. Those scars are principally located at the site of the original operation on 10 May 2010. They do not feature largely in his claim of disability. There is no satisfactory medical evidence concerning physical disability to differentially identify what level of physical disability the plaintiff would have had but for the need for further surgery on 25 July 2017 compared to his present condition: Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, at [8]; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, at [4]; Glen v Sullivan [2015] NSWCA 191, at [43]-[47]. In my view, the plaintiff has not discharged the onus of proof he carries on that issue. 7. Furthermore, there is considerable doubt as to whether the operation the plaintiff underwent on 25 July 2017 was an additional operation or an operation that was inevitable, but delayed by some years, given Dr Higgs' view that the removal operation could have been performed a month or so after 4 August 2010. 8. The plaintiff's principal complaints seem to focus on his psychological status. In that regard, I have reviewed the opinions of the two forensic psychiatrists who have been retained by the respective parties. 9. Dr Leon Turnbull, who was retained by the plaintiff's solicitor, was of the opinion that the plaintiff's mental state has suffered greatly as a result of his experiences in the course of the medical treatment the subject of these proceedings. As a result, he noted that the plaintiff has experienced a significantly diminished amenity in his life and in his interpersonal relationships. Dr Turnbull considered the plaintiff has incurred an adjustment disorder with a depressed mood, the main cause for this being the plaintiff's mental state, being his concern over his ankle problems, and to a minor extent, the consequences to the plaintiff of the death of his father in June 2017. Dr Turnbull supported a claim for the plaintiff to have future counselling and he predicted future relapses, but not to the extent of decompensation entirely. 10. Dr Alex Apler, who was retained by the solicitor for the defendant, reviewed the plaintiff's family situation and marital separation in detail. The plaintiff attributed those matters to his understandable anger and depression over the events in question. However, Dr Apler considered the plaintiff had no current psychiatric disorder. He also considered that the plaintiff's depression had resolved in 2017. In my assessment, he reached that conclusion based on terminology rather than on the descriptive symptoms. 11. I do not accept Dr Apler's assessment of the plaintiff's condition. I consider Dr Turnbull's assessment more aptly represented a practical fact-based summation and diagnosis of the plaintiff's situation. 12. In this case, any amount of damages for non-economic loss must take into account the discounting factor that even if the defendant had not been shown to be negligent, the plaintiff would have nevertheless suffered a significant amount of surgical scarring, distress, inconvenience and loss of amenity of his life in any event. 13. In my view, taking those matters into account, had the plaintiff established that his adverse psychological status and the other claimed disruption, to the amenity of his life were caused by fault on the part of the defendant, the appropriate range of damages for non-economic loss in this case would be between $60,000 and $70,000. I notionally assess the plaintiff's damages for non-economic loss in the mid-range amount of $65,000. Past economic loss 1. On behalf of the plaintiff, it was submitted that damages for past economic loss should be assessed in the amount of $83,200. That sum was predicated on the assumption that between August 2017 and August 2019, the plaintiff had to employ an extra staff member to carry out the duties in the family laundry business in which he was engaged, those being duties that he would otherwise have performed himself. That employee was paid at the rate of $25 per hour or $800 per week: T35.30 – T35.35. 2. In my view, the evidence discloses, that this aspect of the plaintiff's claim for damages is untenable. The plaintiff was employed by Bashilo Holdings Pty Ltd. He was not the sole proprietor of that business. If there was a loss of income, which is disputed by the defendant, any such loss was incurred by that company and not by the plaintiff. 3. The defendant has submitted, correctly in my view, that if Bashilo Pty Ltd increased its wages bill in the period identified by the plaintiff that does not necessarily mean that the plaintiff has incurred a loss as was submitted. 4. An examination of the plaintiff's income tax returns shows that in the financial year ended June 30th 2017, his income was $45,257. In the financial year ended June 30th 2018, his income increased to $53,663: Exhibit "1", Vol 2, pp 908 – 911. The plaintiff's income tax return for the year ended June 30th 2019 was not tendered and his income for that year was not disclosed in his evidence. 5. In those circumstances I find that the plaintiff has not discharged the onus of proof for his claim for past economic loss and I therefore make no monetary assessment of that head of damage. Future economic loss 1. On behalf of the plaintiff, a claim was made for future economic loss in the buffer amount of $50,000. The claim is based on the proposition that since the laundry business in which the plaintiff was employed was destroyed in a fire in August 2019, and in view of his ongoing disabilities, he is prejudiced in exercising his earning capacity on the open labour market. That labour market is to be assessed as at the time of the trial, with potential adverse vicissitudes in mind. 2. In contrast, the defendant submitted that no damages should be awarded for future economic loss in light of an absence of medical support for the proposition that he has suffered an accident-related diminution in his earning capacity. That submission proceeded upon the erroneous assumption that supporting medical evidence is required before such an award can be made. The proper test is the factual question of whether there has been an impairment of earning capacity that is likely to be productive of economic loss. 3. There is little room for doubt that the combination of the plaintiff's ongoing psychological difficulties on top of the physical complaints he would have had in any event, place him at a disadvantage on the open labour market. He would have to disclose such matters to a prospective employer, and it is expected that a prospective employer would not discriminate on grounds of disability. However, that is not the universal experience of job seekers. From the perspective of a damages assessment, the difficulty the plaintiff faces is that there is no satisfactory proof that these problems have arisen as a result of fault on the part of the defendant. 4. In ordinary circumstances, I consider that a buffer amount of $30,000 would be an appropriate allowance for the permissible considerations given the plaintiff's age and work history. 5. However, I find that the plaintiff has not discharged the onus of proof he carries in that regard. I therefore decline to award damages for future economic loss, either as a buffer amount, or otherwise. Past domestic assistance 1. On behalf of the plaintiff, a claim for past domestic assistance was made in the sum of $12,330. That amount was calculated on the basis of 3 hours per week between 21 June 2010 to date, over 137 weeks, at $30 per hour. The factual basis for that claim has not been established, as explained in my reasons for identification of the plaintiff's loss. 2. Section 100 of the CLWA, which provides for the assessment of damages to perform domestic services, is in the following terms: 100 Damages for loss of capacity to perform domestic services (1) A person's liability for an injury suffered by someone else because of a wrong includes liability for damages for any resulting impairment or loss of the injured person's capacity to perform domestic services that the injured person might reasonably have been expected to perform for his or her household if the injured person had not been injured. (2) In an action for the recovery of damages mentioned in subsection (1), it does not matter— (a) whether the injured person performed the domestic services for the benefit of other members of the household or solely for his or her own benefit; or (b) that the injured person was not paid to perform the services; or (c) that the injured person has not been, and will not be, obliged to pay someone else to perform the services; or (d) that the services have been, or are likely to be, performed (gratuitously or otherwise) by other people (whether members of the household or not). (3) In this section: "wrong" means an act or omission (whether or not an offence)— (a) that gives rise to a liability in tort; or (b) that amounts to a breach of a contractual duty of care that is concurrent and coextensive with a duty of care in tort. 1. The claimed services are to be assessed according to common law principles in accordance with the line of authority enunciated in Griffiths v Kerkemeyer [1977] HCA 45, and the cases that followed, without restrictions of the kind called for by legislation such as s 15 of the CL Act (NSW). 2. The defendant correctly points out that claim for future domestic assistance is entirely unsupported by evidence. The defendant further points out that the occupational therapy evidence only supports a claim of 3 hours per week at $30 per hour for 10 weeks between 21 June 2017 and 5 September 2017, namely $900. The claim made by the plaintiff for domestic assistance in 2010 and thereafter is unsupportable as in the bulk of that period he would have required that assistance in any event. 3. I find that the plaintiff has not discharged the onus of proof he carries for this component of his claim. I therefore decline to award damages for past domestic assistance, either as a buffer amount, or otherwise. Future domestic assistance 1. On behalf of the plaintiff, a claim is made for the cost of future domestic assistance of $37,500. That claim is based on the assumption that the plaintiff needs 1 hour per week of domestic assistance at $45 per hour for his remaining life span of 31 years, projected at the 5 per cent multiplier of 833.8. 2. That submission fails to have regard to the fact that the correct multiplier should be on the 3 per cent tables. It also fails to recognise a need to discount any such projection on account of potential adverse vicissitudes. 3. Notwithstanding those matters, I find that there is no reliable evidence upon which a monetary assessment of that claim could proceed on the basis of the consequences of fault on the part of the defendant. The joint report from the respective occupational therapists provides no reliable assistance on this issue. I therefore make no assessment of damages for future domestic assistance. Future treatment expenses 1. On behalf of the plaintiff a claim is made for future treatment expenses in the amount of $7495. That claim assumes an allowance for two general practitioner consultations per annum at a weekly cost of $3.08, which is submitted to equate to $2565, some allowance for equipment costs as suggested at p 47 of the occupational therapy report of Ms Dinley, and some home modifications at an estimated cost of $3030. 2. On the evidence adduced, I am not persuaded that those claims can be reasonably maintained as a consequence of fault on the part of the defendant. The evidence is that irrespective of fault, the infective organisms that could cause a future recrudescence of osteomyelitis could lay dormant in the body for decades before an eruption occurs. I make no award for future treatment expenses. Past out-of-pocket expenses 1. The plaintiff initially claimed $7,000 for past out-of-pocket expenses. An agreement in respect of that head of damage was ultimately reached in the sum of $1790.82: T282.21 – T281.34. I therefore would have assessed past out-of-pocket expenses at the agreed sum of $1790.82. Disposition 1. I find that the defendant was in breach of the duty of care that he owed to the plaintiff but the plaintiff has not established that such breach was the relevant cause of the claimed harm. The plaintiff has therefore failed to establish an entitlement to a damages award. There should be a verdict and judgment for the defendant. Costs 1. The combination of pleadings deficiencies and non-compliance with case management orders by both parties suggests that a special order for costs is indicated in this case: s 98 of the Civil Procedure Act 2005 (NSW). I will therefore hear the parties on the question of the appropriate order for costs. Orders 1. I make the following orders: 1. Verdict and judgment for the defendant; 2. I will hear the parties on the appropriate order for costs; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further or other orders are required. ********** Amendments 31 July 2020 - Paragraph 58(8) enumeration error within paragraph DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 July 2020