New South Wales District Court CITATION: Peterson v South Eastern Sydney Illawarra Area Health Service & Elliott [2010] NSWDC 114 HEARING DATE(S): 11, 12, 13, 14, 22 May, 1 July 2009 JUDGMENT DATE: 24 June 2010 JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ 1. Verdict and judgment for the defendants; DECISION: 2. Plaintiff to pay the defendants' costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further orders are required. CATCHWORDS: TORTS – professional negligence – medical – orthopaedic out-patient management of complex Type 3 Pilon tibial fracture following initial operative repair – whether unreasonable delay in arranging further orthopaedic surgery for non-union or delayed union of fracture – whether breach of duty of care by hospital – whether breach of duty of care by consultant visiting medical officer – whether defendants proved cigarette smoking by plaintiff constituted contributory negligence – whether legal test for causation of harm satisfied – considerations of Civil Liability Act 2002, s 5O - s 5E - DAMAGES – assessment of multiple heads of damage Civil Liability Act 2002 LEGISLATION CITED: District Court Act 1973 Uniform Civil Procedure Rules 2005 Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 Chappell v Hart [1998] HCA 55; 195 CLR 232 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Dobler v Halvorsen [2004] NSWCA 391 Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113 Evans v Lindsay [2006] NSWCA 354 Gett v Tabet [2009] NSWCA 76 Halvorsen v Dobler [2006] NSWSC 1307 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 CASES CITED: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 Rosenberg v Percival [2001] HCA 18; 205 CLR 434 Sretenovic v Reed [2009] NSWCA 280 Strinic v Singh [2009] NSWCA 15 Tabet v Gett [2010] HCA 12 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 TEXTS CITED: Practical Fracture Treatment, by Ronald MacRae, Churchill Livingstone 1981 Hindsight bias and outcome bias in the social construction of medical negligence : A review; Journal of Law and Medicine; (2009) 16 JLM; pp 846-857 Greg Peterson (Plaintiff) PARTIES: South Eastern Sydney Illawarra Area Health Service (First defendant) Dr Robert Elliott (Second defendant) FILE NUMBER(S): 1126 of 2007; 2007/291035 COUNSEL: Mr D Hirsch (Plaintiff) Mr M Fordham (Defendants) SOLICITORS: Beilby Poulden Costello (Plaintiff) Francesca Minetti (Defendants) JUDGMENT A. INTRODUCTION [1] – [21] Nature of the case [1] Background [2] – [7] Parties [8] – [10] Issues for determination [11] – [12] Summary of findings [13] – [15] Assessed heads of damage [16] – [18] Array of evidence [19] – [21] Oral evidence [20] Documentary evidence [21] B. FINDINGS - BACKGROUND FACTS [22] – [113] Plaintiff's background [22] – [28] Plaintiff's personal background [24] Plaintiff's pre-injury work history [25] Plaintiff's pre-injury health history [26] – [27] Plaintiff's pre-injury leisure pursuits [28] Injury and initial treatment [29] – [48] Primary injury [30] – [33] Medical description of initial injury [34] Initial assessment at Shellharbour Hospital [35] – [37] Initial treatment at Wollongong Hospital [38] – [46] Discharge from Wollongong Hospital [47] – [48] Concurrent and intervening events [49] – [56] Human growth hormone supplements taken by plaintiff [50] Fall subsequent to discharge from Wollongong Hospital [51] – [56] Relevant events occurring in course of follow-up treatment [57] – [82] Fracture clinic reviews at Wollongong Hospital [58] – [59] Post-operative consultations with Dr Elliott [60] – [72] Dr Elliott's plan for remedial surgery [73] – [76] Cancellation of Dr Elliott's plan for remedial surgery [77] – [81] Tertiary referral to Dr O'Carrigan [82] Subsequent treatment by Dr O'Carrigan [83] – [113] Remedial treatment provided by Dr O'Carrigan [99] – [111] Result of remedial treatment [112] – [113] C. EVIDENCE REVIEW - LIABILITY [114] – [328] Tabulation of consultations with defendants 14.10.2003 - 11.08.2003 [114] – [119] Evidence of Dr Elliott [120] – [175] Expert evidence – plaintiff's case [176] – [258] Dr Bornstein [177] – [227] Professor Higgs [228] – [258] Expert evidence – defendants' case [259] – [328] Dr Donaldson [260] – [286] Professor Nade [287] – [328] D. EVIDENCE REVIEW - DAMAGES [329] – [352] Evidence of plaintiff's mother [330] – [336] Evidence of plaintiff's employer [337] – [338] Medical reports – damages issues [339] – [352] Dr Harvey - report obtained by defendants' solicitor [340] – [347] Dr Davis - report obtained by plaintiff's solicitor [348] – [352] E. FINDINGS - CREDIT AND LIABILITY ISSUES [353] – [503] Issue 1 – Credibility of testimony [354] – [372] Issue 2 – Progress of healing of distal tibial fracture [373] – [399] Issue 3 – Duty of care and breach [400] Civil Liability Act 2002 - statutory framework [401] – [404] Duty of care [405] Content of duty of care [406] Alleged breach of duty of care [407] – [466] Conclusions on alleged breach of duty of care [467] Issue 4 – Causation [468] – [492] Issue 5 – Alleged contributory negligence [493] – [503] F. FINDINGS - DAMAGES ISSUES [504] – [528] Findings as to injuries [505] – [510] Findings as to treatment [511] – [516] Findings as to rehabilitation [517] Findings as to mitigation [518] Findings as to disabilities [519] – [525] Findings as to employment effects [526] Findings as to domestic activities [527] Findings as to plaintiff's probable life span [528] G. ASSESSMENT OF DAMAGES [529] – [598] Non-economic loss [530] – [534] Past loss of earnings [545] – [554] Future loss of earning capacity [555] – [569] Past superannuation losses [570] Future superannuation losses [571] Past domestic assistance [572] – [577] Future domestic assistance [578] – [584] Future treatment [585] – [588] Past out-of-pocket expenses [589] – [596] Interest on past damages [597] Summary of damages assessment [598] H. DISPOSITION & ORDERS [599] – [600] Disposition [599] Orders [600] A. INTRODUCTION Nature of case 1. The plaintiff has brought these proceedings against Wollongong Hospital ["the hospital"] and its visiting medical officer ["VMO"] Dr Elliott, an orthopaedic surgeon, claiming damages for alleged negligence concerning out-patient follow-up treatment provided by the defendants in respect of fractures sustained by the plaintiff to his right tibia and fibula. Background 2. The background to the proceedings is that the plaintiff had earlier sustained a most severe orthopaedic injury to his right ankle and lower leg in an off-road motorcycle accident on 11 October 2003 during a recreational Motocross sporting event. The fractures were identified as comprising a Type 3 Pilon injury. Dr Elliott described this injury as almost meriting an amputation. The plaintiff makes no complaint about the initial treatment he received. The initial surgical reduction of the fractures was achieved to a high standard of anatomical reconstruction. 3. However, the plaintiff alleges that the follow-up aftercare he received from the defendants as an out-patient was below the expected standard. The claim is that there was an unreasonable delay in the timely arrangement of further surgical treatment in respect of either a non-union or a delayed union of the fractures to the plaintiff's distal right tibia. The plaintiff claims this delay has resulted in an avoidably poor outcome. 4. This case involved the interpretation of a series of 251 x-ray film images by 5 orthopaedic surgeons, whose expert opinions offered differing perspectives of interpretation as to what was shown on those images. This was in a context where the x-ray images in question, or selected prints of them, were not tendered in evidence, notwithstanding an invitation to do so : [T D3 page 25 lines 27-31]. 5. The non-tender and continued absence of those films or images served to prolong and to a degree, confuse the evidentiary debate amongst the expert orthopaedic surgeons as to the true contextual meaning in this case, of non-union, or delayed union, of the plaintiff's right distal tibial fracture. The case centred around whether, on the basis of abstract and retrospective non-clinical opinions interpreting those x-ray images, there ought to have been a more timely surgical intervention in the 4 – 7 months post-injury time range, rather than a tertiary referral for that surgery at 10 months post-injury, as occurred in this instance. 6. Unfortunately, in this case the parties took no pro-active steps prior to the trial to arrange for a joint conference of experts and for the taking of expert evidence concurrently. Had they done so, this would have led to a significantly shorter analysis of these expert medical opinions. As a consequence, the expert opinion evidence on the liability and causation issues, from 4 orthopaedic surgeons, was adduced in a wide-ranging manner. This has required a lengthy evidence review : Paragraphs [114] to [352]. My findings on credit, liability and causation appear between paragraphs [353] to [492] of these reasons. 7. The hearing of the case concluded on 1 July 2009 when judgment was reserved. Earlier, the decision of the Court of Appeal in Gett v Tabet [2009] NSWCA 76 was delivered on 9 April 2009. An application for Special Leave to appeal to the High Court in that case was filed on 6 May 2009. That application was heard and granted on 4 September 2009. The decision of the High Court in Tabet v Gett [2010] HCA 12 was published on 21 April 2010. By invitation, the parties concluded their written submissions concerning the implications of that authority to this case on 18 May 2010. The plaintiff's case cannot involve any consideration of questions concerning loss of a chance of a better outcome if he had received the medical treatment for which he contended. Parties 8. The plaintiff, Greg Peterson, was born in 1979. He is a journeyman plumber by trade. 9. The first defendant, the South Eastern Sydney Illawarra Area Health Service, is the body responsible for the Wollongong Hospital where the plaintiff received surgical and follow-up out-patient aftercare treatment for his fractures following a transfer from Shellharbour Hospital. 10. The second defendant, Dr Robert Elliott, is a specialist orthopaedic surgeon and VMO at the hospital. Dr Elliott's initial involvement with the plaintiff's treatment was that he had supervised and assisted the hospital's orthopaedic registrar, who undertook the primary surgical reduction of the plaintiff's fractures. Dr Elliott later also supervised the various hospital registrars who periodically saw the plaintiff during scheduled visits for post-operative review and care at the hospital's out-patient fracture clinic. Post-operatively, Dr Elliott also saw the plaintiff on several occasions at the hospital's fracture clinic, as well as at his own private consulting rooms, for management of the fractures. Previously, in 1999, Dr Elliott had treated the plaintiff as a private patient for an earlier fracture of the right arm. Issues for determination 11. Against the background framework of the Civil Liability Act 2002 ["CL Act"], the following liability and causation issues arise for determination: Issue 1 : The credibility of testimony; Issue 2 : Whether, before 5 August 2004, and if so when, should non-union or delayed union of the plaintiff's distal right tibial fracture have been reasonably diagnosed; Issue 3 : Whether there was a relevant breach of the duty of care owed by the respective defendants, and if so, in what respects; Issue 4 : Whether the defendants have established any contributory negligence on the part of the plaintiff, and if so, to what extent, and to what effect; Issue 5 : Whether the plaintiff has established legal causation for the damage of which he complains; 12. The determination of Issue 2 requires a consideration of the nature, extent, likely course and the prognosis of the plaintiff's initial tibial fracture, and the likely outcome that would ordinarily have been anticipated, absent the alleged negligent treatment. This issue is concerned with whether, from a period of about 4 months following the initial reduction of the plaintiff's fracture, a state of non-union or delayed union persisted and ought to have been recognised by the defendants, thereby mandating an earlier surgical intervention that was likely to produce a surgical outcome more favourable to the plaintiff, and sounding in assessable damages. Summary of findings 13. I have found that neither of the defendants has been shown to have relevantly breached the respective duties of care they owed to the plaintiff in not making a more timely diagnosis and surgical treatment of non-union or delayed union of the plaintiff's right distal tibial fracture. 14. Notwithstanding this finding, to allow for the possibility that I may be found to be in error in respect of my finding on breach of duty of care, I have proceeded to consider the causation issues. In this regard I have found that the plaintiff has failed to satisfy the requirements for proof of legal causation for the claimed damage. It follows that there must be a verdict for the defendants. 15. To allow for the possibility that I may be found to be in error in respect of my reasons for finding the plaintiff has failed to establish legal causation for the damage that he has claimed, I have proceeded to make findings on the issues that would have remained as if causation had been established. In this regard I have also found that the defendants have failed to establish contributory negligence on the part of the plaintiff. I have also found that even if the defendants had discharged their onus of proving that such contributory negligence on the part of the plaintiff, the defendants have failed to prove that such contributory negligence was a potent cause of damage to the plaintiff. I have notionally assessed the plaintiff's damages in the sum of $807,841 as outlined in the damages summary that follows. Assessed heads of damage 16. The plaintiff made a claim in respect of a total of 9 claimed heads of damage for assessment, plus interest on some of the claimed past losses. The heads of damage claimed by the plaintiff and the submissions made by the parties in this regard, are listed below, together with paragraph references to my assessment of the various heads of damage claimed. 17. The wide discrepancy between the submissions of the parties was accounted for by the defendant's differing approach to the issue of causation. If I had found for the plaintiff, I would have ordered the entry of judgment for the plaintiff in the assessed amount of $807,841. Head of Damage Claimed by Plaintiff Plaintiff's Submissions Defendants' Assessment Paragraphs Primary Submissions (a) Non-economic loss $202,500 $31,000 $31,000 [530] – [544] (b) Past loss of earning capacity $145,400 $15,600 $129,800 [545] – [554] (c) Future loss of earning capacity $350,162 $Nil $449,427 [555] – [569] (d) Past superannuation losses $16,357 $Nil $14,278 [570] (e) Future superannuation losses $39,393 $Nil $49,436 [571] (f) Past domestic assistance $60,900 $7,800 $60,900 [572] – [577] (g) Future domestic assistance $90,000 $Nil $45,000 [578] – [584] (h) Future treatment $8,000 $Nil $3,000 [585] – [588] (i) Past out-of-pocket expenses $48,340 $Nil $25,000 [589] – [596] (j) Interest on past damages $46,357 $Nil $Nil [597] Totals $1,006,509 $54,400 $807,841 18. No memorandum of consent was filed to extend the court's jurisdiction beyond $750,000. No occasion has arisen for an inquiry into the issue of whether the plaintiff would have been able to satisfy the requirements for the making of an order expanding the jurisdiction of the court beyond $750,000, pursuant to s 51(2)(b) and s 51(4) of the District Court Act 1973. Array of evidence 19. It is convenient to set out an overview of the evidence. Apart from the evidence of the plaintiff, his mother and the plaintiff's employer, the remainder of the oral evidence comprised expert evidence from 5 orthopaedic surgeons, including the second defendant, Dr Elliott. Most of the documentary material tendered comprised medical records and reports. Oral evidence 20. The following 8 witnesses were called to give evidence: (a) The plaintiff; (b) Mrs Marilyn Peterson, the plaintiff's mother; (c) Mr Chad Stennard, the plaintiff's current employer; (d) Dr Robert Elliott, the second defendant; (e) Dr David Bornstein, a consultant orthopaedic surgeon who was retained by the plaintiff's solicitor; (f) Professor Robin Higgs, a consultant orthopaedic surgeon who was retained by the plaintiff's solicitor; (g) Professor Sydney Nade, a consultant orthopaedic surgeon who was retained by the solicitor for the defendants; (h) Dr Wayne Donaldson, a consultant orthopaedic surgeon who was retained by the solicitor for the defendants. Documentary evidence 21. The liability exhibits included a paginated bundle of 7 sets of hospital records, which documented the plaintiff's various hospital admissions for the successive attempts at treatment of his fractures. This bundle was marked Exhibit "F". A copy of Dr Elliott's patient records concerning the plaintiff was also tendered, and was marked Exhibit "G". B. FINDINGS – BACKGROUND FACTS 22. In the paragraphs that follow I set out my findings concerning the plaintiff' pre-injury personal circumstances, his pre-injury work history, his health history and his pre-injury leisure activities. Plaintiff's background 23. As is evident from the summary that follows, the plaintiff's background circumstances are not suggestive of any pre-injury problems limiting his physical or employment capacity. Plaintiff's personal background 24. The plaintiff is a single man who was born in 1979. He was aged almost 24 years when injured. He was aged 30 years at the time of the trial. He shares the financial responsibility for the maintenance of his 6 year old son from a previous relationship. Plaintiff's pre-injury work history 25. After leaving school in 1996 at age 17 years the plaintiff trained as a journeyman plumber. He completed his apprenticeship and obtained his qualifications in the year 2000. This entitled him to work unsupervised as a tradesman under an employer's licence. He is a qualified plumber, drainer and gasfitter. His work history between 2000 and 2003 was not the subject of evidence. On 7 July 2003 he commenced working for Malone Plumbing in a position for which he was paid $600 per week net. He left that position on 7 October 2003 after 4 months for reasons that were not explained or explored in the evidence. At the time of his injury on 11 October 2003, the plaintiff was in between jobs. Plaintiff's previous health history 26. Before the subject injury the plaintiff was in apparent good health. Previously, on 21 August 1999, the plaintiff had suffered an un-displaced fracture of the right distal radius following a snowboarding injury. That fracture was treated by immobilisation in a back slab cast. Dr Elliott first saw the plaintiff on 26 August 1999 for review of that injury, and then again on 23 September 1999, for removal of the cast, at which time it was noted that a satisfactory result had been achieved. There was no evidence that the plaintiff had any other health problems. 27. There was evidence in the hospital records that the plaintiff had been taking human growth hormone for 2 years before the injury. The reasons for this were not explained or explored in evidence. The plaintiff was a smoker of cigarettes, a fact that assumed some importance in the liability issues. There were no apparent pre-accident restrictions on the plaintiff's physical ability to fully exercise an earning capacity in respect of manual work, either in his trade or generally. Plaintiff's previous leisure pursuits 28. Before his injury the plaintiff led an active outdoor lifestyle without restrictions. He was involved in physically dextrous and risk-laden pastimes, for example, snowboarding and the motocross riding of motorcycles. The hospital notes also noted his interest in surfing. Injury and initial treatment 29. In the paragraphs that follow, I set out my findings on the events leading to the plaintiff's hospitalisation and his initial treatment that have given rise to this claim. Primary injury 30. The plaintiff's initial injury occurred at about 2:00pm on Sunday 11 October 2003. He was taken to Shellharbour Hospital where, on admission, a history was recorded that in the accident he had "over-jumped" a set of doubles on his motocross bike and then landed on flat ground. He described how in these events his foot had come off the peg on the bike and had then hit the ground. Subsequent medical evidence described this as a high energy Type 3 Pilon injury. 31. In the plaintiff's evidence in chief, the detail of these events was given very little attention, as is evident from the following extract: " Q. Mr Peterson you fractured your leg in a motorbike accident on 11 October 03 isn't that right? A. Yeah that's right. Q. And you were treated at Wollongong Hospital? A. Yep. Q. And discharged on 14 October 03? A. Yep ." 32. The nature, severity and impact energy of the injury became relevant in the debate amongst orthopaedic experts as to the appropriateness or not of surgical intervention in the plaintiff's after-care when fracture non-union or delayed union was ultimately recognised. 33. In cross-examination, a more detailed description of the events of the plaintiff's injury emerged: " Q. At the time of this accident you were riding - was it a trail bike? A. Yeah. Q. A motorcycle? A. Yeah. Q. You had gone off a jump, is that right? A. Yep. Q. How high in the air were you? A. I don't know. Q. Just off the ground, couple of metres, what was it? A. Yeah, just jump. Q. Are you able to estimate how high you were? A. A metre, I don't know. Q. How fast were you going? A. I was in second gear, I don't know. I haven't - no speedo on trail bike. Q. Were you doing in excess of 40 kilometres an hour? A. Probably around 40, just a little - just a little jump. Q. I also understand the mechanism of the actual accident. When you landed, did you land on your foot with the full weight of your body and the bike going through your foot? A. My foot hit the ground. Q. Yes? A. Yeah. Q. And that was the first thing that hit the ground? A. My foot? Q. Yes? A. Well I can't - yeah, I know it hit the ground. Q. Whatever it was after that, you were in a lot of pain? A. Yeah that's right ." Medical description of the initial injury 34. The various orthopaedic surgeons who gave evidence essentially agreed that the plaintiff's injury was a most severe one. The unchallenged evidence of Dr Elliott was that on a severity scale of 1 to 10, where 9 involved amputation, the plaintiff's injury was rated at 8.5 on that scale. It was common ground that the initial injury had been treated to achieve an excellent surgical reduction of the many fragments involved in the ankle fracture, which was very comminuted. Initial assessment at Shellharbour Hospital 35. Following his injury, the plaintiff was initially taken to Shellharbour Hospital where he was first seen at 15:38 hours. This was about one and-a-half hours after his injury. He was in distress and in pain on arrival. He was unable to walk on his right ankle and he was unable to remove his right boot. 36. At about 15:45 hours the plaintiff was triaged and then seen in the emergency department. He was given morphine for his pain and his boot was then removed. The ankle region was noted to have been swollen and the distal lower leg was noted to be in rotational valgus deformity but the skin was not broken. An x-ray was arranged which showed a comminuted distal tibial fracture with intra-articular involvement where the distal tibia forms part of the ankle joint, as well as a transverse fracture of the distal fibula with displacement and external angulation of about 20 degrees. The initial x-ray report stated: " Right Tib and Fib Clinical notes – Trauma. There is a comminuted fracture of the distal right tibia and fibula, the distal fragments are slightly displaced anteriorly. There is associated gas is (sic) the soft tissues over the distal tibia, raising the possibility that this fracture is infact (sic) truly compound. The fracture extends into the talar articular surface of the tibia. Right Knee No bony abnormality is seen, no effusion is demonstrated in the knee joint. Proximal fibula appears intact." 37. Arrangements were then made to transfer the plaintiff to Wollongong Hospital for appropriate orthopaedic treatment, including for operative repair, and for further management. Initial treatment at Wollongong Hospital 38. The plaintiff arrived at Wollongong Hospital at 19:30 hours on 11 October 2003 after an uneventful transfer from Shoalhaven Hospital. This was about six and-a-half hours after his initial injury. He remained an in-patient at this hospital until he was discharged three days later on 14 October 2003. 39. On the first evening of his admission to the hospital it was noted that he was demanding of morphine and strong pain relief. It was noted that when this pain relief was deferred, he became verbally aggressive and abusive to nursing staff and threw away Panadol tablets that were offered to him. 40. On the following day, 12 October 2003 a CT scan of the right ankle was taken which was reported as follows: " CT Right Ankle Axial slices have been performed with sagittal and coronal reconstructions. There is quite an extensive comminuted fracture of the distal end of the tibia which involves its articular surface. There is some displacement of most of these bony fragments. There is a fracture of the distal shaft of the fibula." 41. Later that day, under the supervision of Dr Elliott, who assisted at the operation, the plaintiff was operated upon by the Orthopaedic Registrar, Dr Summersell, who performed an open reduction and internal screw fixation of the fracture of the right tibia with the insertion of two percutaneous screws. An external fixator device was also applied with anchoring pins. The position of the reduced fracture was checked intra-operatively using an image intensifier in the operating theatre. 42. At 17:05 hours on 12 October 2003, post-operatively the right leg was elevated with the position of the ankle above the knee to relieve the slight oedema to the right foot. At this time the clinical notes record that the plaintiff was asking to be taken outside for a cigarette. The nursing staff declined his request because he was still under the effects of morphine. The hospital admission notes recorded that the plaintiff was a smoker. This was the first post-operative reference in the clinical notes to the plaintiff being a smoker. Ultimately the matter of the plaintiff's smoking was given some focus and significance in the evidence of Dr Elliott and to a lesser extent the other experts. 43. On 13 October 2003 post-operative x-rays were taken of the plaintiff's right ankle. These were reported to show a good surgical result. The report was in the following terms: " Right Ankle Fractures of the distal fibula and tibia are noted. These do not appear to extend to the articular surface. It is held in satisfactory position by external fixation device." 44. On 14 October 2003 the plaintiff was assessed by an occupational therapist to be independent with the use of crutches. He was assessed to be mobilising well, able to self-care the tasks of daily living and was accordingly discharged from hospital at about 14:30 hours on that day. 45. On 16 October 2003 Dr Elliott's intern prepared a discharge summary which was copied to Dr Elliott. It included the following details: " Diagnosis Motor bike accident. fracture of right distal tibia Procedure: Closed screw reduction and percutaneous screws / application of external fixation on 12 October 2003 Summary: Closed reduction and percutaneous screws and external fixation. Nil post operative complications. Treatment: Leg elevation: Daily pin site dressings by Community nursing. Non-weightbearing right leg. … Follow up: Fracture clinic in one week with new x-ray" 46. A copy of Dr Elliott's records was tendered as Exhibit "G". These records show that Dr Elliott had 2 consultations with the plaintiff whilst he was an inpatient at the hospital. The first such consultation was noted to have occurred pre-operatively on 12 October 2003, including in what appears to be an intra-operative review, as set out in an operation note of the procedure performed by Dr Summersell. The second of Dr Elliott's in-patient consultations with the plaintiff was noted to have occurred on 14 October 2003, prior to the plaintiff's discharge from hospital. Discharge from Wollongong Hospital 47. On 14 October 2003 Dr Elliott examined the plaintiff at the pre-discharge consultation. He noted that the plaintiff's post-operative condition was satisfactory. He approved the plaintiff's discharge from hospital. At the time of discharge, the further plan for management was for follow-up and review in the fracture clinic at the hospital. 48. When the plaintiff was discharged from hospital he was given information concerning care of the pin site wounds for the in situ external fixator device and the dressings to his right lower leg. Arrangements were also made for a community nurse to visit him at his home for daily dressing changes. The plaintiff was given an appointment to attend the hospital fracture clinic about one week later on 24 October 2003. Apparently, the plan was to leave the leg in plaster for some 12 weeks and in the interim, to review and assess progress at periodic intervals at the hospital fracture clinic. Concurrent and intervening events 49. The evidence reveals a concurrent matter, namely the plaintiff was taking human growth hormone at the time of his injury. The evidence also reveals an intervening event, namely, a post-operative fall in which the plaintiff injured his right foot and lower leg. Human growth hormone supplements taken by plaintiff 50. The Shoalhaven Hospital notes record a history given by the plaintiff that for approximately 2 years before his injury, the plaintiff had been taking a human growth hormone supplement of unspecified dosage, at an unspecified frequency and for unspecified reasons. This issue was not explored in the evidence at all. There is no evidence that this issue was considered by any of the orthopaedic experts. None of the orthopaedic experts commented upon this feature of the plaintiff's history. In such circumstances, where the parties have chosen to ignore this evidence, I am constrained from drawing conclusions from that recorded history, irrespective of any views I might hold on the healing or retarding effects, if any, on bone fractures, that this hormone supplement may have had. Accordingly, I make no findings on this issue : Strinic v Singh [2009] NSWCA 15; Sretenovic v Reed [2009] NSWCA 280. Fall following discharge from Wollongong Hospital 51. On 19 January 2004, some 97 days after his discharge from the hospital, by appointment, the plaintiff presented at the Physiotherapy Department at Shellharbour Hospital complaining of increased pain in the right foot and lower leg due to a fall that had occurred when he stumbled whilst using his crutches on the way to the physiotherapy appointment. This matter was dealt with in passing in the reports of Dr Donaldson and Professor Higgs. 52. The Shoalhaven Hospital physiotherapy notes have been ignored by the parties. They contain some references to matters that I consider to be of possible interest to the issues in the case. 53. The first item of interest in these notes is the reference by the physiotherapist on 18 November 2003 to the plaintiff's calf being "wasted". In the context in which the note appears, I infer that it was the right calf that was wasted. 54. The second item of interest in these notes is the reference on 19 January 2004 to the plaintiff's post-fall experience of pain in the dorsal aspect of his right foot with pain to the right ankle. On examination the physiotherapist noted that the plaintiff's right ankle was measured at 38º dorsiflexion in association with an equinus contracture, for which stretching exercises were prescribed for tight calves. The relationship between this contracture and muscle wasting was not explored in the evidence. 55. The third item of interest in these notes was on 29 January 2004 the pin sites were noted to be oozing pus and reddened such that the physiotherapist advised the plaintiff to see his general practitioner to have the pin site infection checked. 56. The causative role, if any, these matters played in his recovery or non-recovery from his tibial fracture was not really touched upon or explored in detail in the evidence. The possibilities are that the fall had no effect at all, or that it caused further trauma that affected the healing of the fractures including a possible novus actus interveniens. In the absence of expert medical evidence analysing the probable effects of the fall, I will not speculate on the issues raised by the occurrence of the fall : Strinic v Singh [2009] NSWCA 15; Sretenovic v Reed [2009] NSWCA 280. The issue is not something I can ignore but it nevertheless remains a matter of speculation that is not capable of resolution on the evidence, it is subject to only brief references in the reports of Dr Donaldson and Professor Higgs : Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352. Relevant events occurring in the course of follow-up treatment 57. The plaintiff claims that during the period between 24 October 2003 and 9 July 2004 he received care at the hospital fracture clinic that was below the expected standard. It therefore becomes necessary to examine and analyse in some detail what actually occurred at those reviews in order to determine the issues that arise for decision in this case. Before doing so it is appropriate to first carry out a review of the chronology of treatment received by the plaintiff before setting out for consideration a tabulation of the relevant occasions on which the plaintiff was seen for review at the clinic and by Dr Elliott. Fracture clinic reviews at Wollongong Hospital 58. Over the ensuing 8 months following his discharge from the hospital the plaintiff periodically attended the fracture clinic at that hospital for management and for review in order to check on the progress of the healing of his fractures. On those occasions, the state of healing of the fractures was assessed by various orthopaedic registrars at the clinic. Dr Elliott gave evidence that on some of these occasions in the clinic, he had been consulted by the registrars about the plaintiff's presentation and ongoing management. 59. In the period between 24 October 2003 and 9 July 2003 there were at least 14 attendances of the plaintiff identified in the fracture clinic notes. I have tabulated these attendances in the course of my review of the liability evidence at paragraphs [114] to [119]. On 9 July 2003 the registrar in attendance requested a consultant's opinion from Dr Elliott on the next scheduled visit. Pursuant to that request, Dr Elliott then saw the plaintiff in his private consulting rooms on 5 August 2003 some 27 days later. Post-operative consultations with Dr Elliott 60. Dr Elliott saw the plaintiff for post-operative review on at least 4 occasions at the fracture clinic and on at least one occasion at his private rooms. Post-operative consultations with Dr Elliott at the fracture clinic 61. Dr Elliott gave evidence that he saw the plaintiff on a number of occasions when the plaintiff periodically attended the fracture clinic. This was to be expected as Dr Elliott was a VMO at the hospital. As such, part of his duties involved the supervision of the hospital's orthopaedic registrars as part of their training, as well as making himself available for consultations where required, in instances where registrars needed a consultant's opinion or guidance on questions of patient management, including consultations at the hospital's fracture clinic. 62. Dr Elliott's records show that he had 3 such consultations with the plaintiff at the fracture clinic, one of which included an out-patient procedure where he supervised the orthopaedic registrar in a procedure for the removal of the external fixator from the right tibia. This procedure had been carried out because the plaintiff had developed a pin tract infection in relation to that fixator device which required that it be removed. 63. The first of those fracture clinic consultations took place on 9 February 2004 as a pre-operative consultation that was then followed by the removal of the fixator in what appears to have been a day only procedure that was carried out 3 weeks after the plaintiff's fall on 19 January 2004. 64. The second such consultation took place on 7 May 2004. 65. The third such consultation took place on 11 June 2004. 66. There was no recorded detail in relation to these consultations because the only evidence of them having occurred is in Dr Elliott's notes of these consultations which consisted simply of a transcribed dictated note stating "consultation" without further details concerning history, viewing of x-rays or findings on examination. The fracture clinic notes at Exhibit "F.B.22" contain a relevant entry for 7 May 2004 in Dr Elliott's handwriting. In this regard, Dr Elliott wrote: "7 May 04 # clinic : Elliott Progress xray - Slow progress of bone union FOR 1. Stop smoking! 2. Partial weight bear (R) leg SEE 1/12 Xray (Signed Elliott)" 67. The 11 June 2004 note of the plaintiff's attendance at the fracture clinic is in the hand of the orthopaedic registrar. There is no evidence within that note that Dr Elliott saw the plaintiff on that date. 68. On 9 July 2004, which was the last in the series of the reviews of the plaintiff's ankle in the fracture clinic the Registrar made a note from which it is clear that Dr Elliott's opinion on further management of the plaintiff's fracture would be sought. The plan was to obtain this opinion at the next scheduled review. The medical records do not contain a note of the date of that scheduled review and in that regard the notes appear to be deficient concerning this clerical detail. Post-operative consultations at Dr Elliott's consulting rooms 69. The plaintiff next saw Dr Elliott in his private consulting rooms on 5 August 2004 after a referral from the registrar for review. The hospital records do not contain any entries concerning this consultation. Accordingly, the detail recorded in Dr Elliott's patient notes needs to be considered when reviewing the relevant events of this consultation. 70. Exhibit "G" shows that at the consultation on 5 August 2004 Dr Elliott took a history and noted that the plaintiff told him that he had to use crutches and he complained of an aching right leg. 71. Dr Elliott noted that the cast had been removed some 12 weeks previously, which meant this had occurred in approximately early June 2004. He reviewed x-rays which were not identified as to a date series, the quantity of x-rays reviewed, or which views were reviewed. It was noted that these x-rays showed that there was tibial non-union with some slight anterior angulation. He also noted that the fracture of the fibula had healed. 72. On examination, Dr Elliott noted his finding that there was good circulation and the presence of what he described as minor deformity. He recorded his provisional diagnosis of non-union of the right tibia. Dr Elliott's plan for remedial surgery 73. Dr Elliott's recorded plan of management was to recommend bone grafting of the right tibia with internal fixation. His notes indicate that he also discussed with the plaintiff the option of a procedure for fibular osteotomy and plating procedure to be performed. 74. Dr Elliott's notes record the entry "? Ilizarov", which he explained in his oral evidence as being a reference to the possible need for an Ilizarov procedure to be carried out on the plaintiff. 75. At this time, Dr Elliott completed a medical certificate for the plaintiff, certifying him as being disabled and unfit to work for the period 5 August 2004 until 26 November 2004. The reason given for that unfitness was stated by Dr Elliott to be non-union of a fractured right tibia requiring surgery to the right leg because of an unsatisfactory response to treatment resulting in a fracture which had not healed. Dr Elliott also certified that the likely time of the plaintiff's anticipated return to work was unknown. However, he predicted that the disability would remain for an estimated further 6 to 12 months. Planned procedure for internal fixation with bone grafting 76. The evidence discloses that on an unspecified date, Dr Elliott placed the plaintiff's name on a surgical waiting list to have an internal fixation and bone grafting procedure carried out on the plaintiff sometime in August 2004. This information is gleaned from an "Amendment to Elective Waiting Time Booking" form, which contained information that was provided to the hospital by both Dr Elliott's secretary and by the plaintiff. This can be discerned from examining Tables 4 and 5 that are incorporated into that form and which comprise a number of classification fields to be filled in according to the assessment of patient readiness status for surgery. Cancellation of Dr Elliott's plan for remedial surgery 77. Dr Elliott's clinical notes contain an entry dated 11 August 2003, which was made by his secretary to indicate that the plaintiff was referred to Dr O'Carrigan for ongoing management, advice and treatment. 78. On 12 August 2004 a notation was made on the booking form to the effect that Dr Elliott's secretary and, it appears the plaintiff, each requested of the hospital that the readiness status for the planned procedure to be changed to "not ready" classification, thereby changing the scheduled status review date from September 2004 to November 2004. The stated reason given for the requested change was: "Dr. request to seek 2nd opinion. Has other appt" 79. This amendment form has a number of other relevant entries which provide some assistance in unpacking the chronology in order to determine the sequence of relevant events. It would appear that the plaintiff's name remained on the "not ready" list at the hospital pending arrangements being made for Dr O'Carrigan to treat him. 80. The amendment form shows that at 15:00 hours on 11 November 2004 someone made contact with the hospital to change the status review date of the "not ready for care" status to 30 November 2004. Subsequently, at 13:00 hours on 4 December 2004 it appears that the plaintiff himself was noted to have notified the hospital of the cancellation of the procedure of internal fixation and grafting on account of the stated reason that he was having the procedure done at Liverpool Hospital. It was therefore on this date that the procedure for which the plaintiff's name was on the waiting list was cancelled. 81. Dr Elliott's clinical notes do not record any further clinical contact with the plaintiff although Dr O'Carrigan kept him informed of the plaintiff's treatment and progress. Tertiary referral to Dr O'Carrigan for ongoing management 82. Dr Elliott's file contains a copy of a referral letter dated 11 August 2004 which was addressed to Dr O'Carrigan in the following terms: " Thank you for seeing this twenty-five year old man who injured his right leg in a trail bike accident on the 11th October 2003. His injury was treated by percutaneous screw fixation of the distal tibia and application of an external fixator. This was removed in February 2004 and a walking cast applied. The fibula has united with anterior angulation and the tibia remains un-united . He was referred for consideration and management according to Ilizarov principl es " [Emphasis added] Subsequent treatment by Dr O'Carrigan 83. On 27 September 2004 Dr O'Carrigan examined the plaintiff and wrote a letter to Dr Elliott in which he recounted the history, recorded his findings on examination, stated his interpretation of the x-ray films he viewed and set out a discussion on the risks and benefits of the treatment options for the plaintiff. Relevant extracts from that letter are in the following terms: "… He is now mobilising partial weight bearing on crutches and has no neuro-vascular problems. He has no leg length discrepancy. He has some deformity around the ankle and some pain with weight bearing. You have asked me to see him because of persistent non-union . His general health is otherwise good and he does not have any allergies. He did smoke until six weeks ago. He is taking medications …" [Emphasis added] 84. It seems to be clear from Dr Elliott's letter to Dr O'Carrigan and from the above quoted portion of Dr O'Carrigan's letter, that Dr Elliott referred the plaintiff for treatment for non-union of the tibial fracture. 85. After weighing up the relevant considerations, Dr O'Carrigan recommended that the plaintiff have remedial surgery. He gave that advice in the following terms: "Whilst all these factors are a consideration, when one weighs up the potential benefits as opposed to the risks, I think clearly Greg's deformity should be corrected, as leaving it untreated it (sic) will cause ongoing pain and could lead to early post-traumatic osteoarthritis. I will review Greg again and will keep you informed." 86. An element of confusion appears to have arisen from the discussion section of Dr O'Carrigan's 27 September 2004 letter to Dr Elliott in that having initially described the problem as non-union, Dr O'Carrigan then went on to describe the problem as being one of delayed union. The context appears from the following extract: " Discussion: Greg has a problem of delayed union of the right distal tibia. I think it is actually healing and I am sure it has been helped by him stopping smoking recently and weight bearing. It has healed however or is healing in a malunited position, with anterior translation of the distal tibia on the proximal tibia and that has caused significant angulation of the distal fibula and I think it has changed the orientation of the distal tibiofibular syndesmosis as well as the articulating part of the lateral malleolus relative to the talus. This has contributed to some ankle stiffness and I think is contributing to ankle pain and could potentially contribute to post-traumatic osteoarthritis long term. I therefore think that it is advisable to correct this deformity. If my impression is correct and the fracture has actually united, then it would take the form of removal of the screws and application of a Taylor spatial frame to the distal tibia, with an osteotomy in the fibula and with no fixation of the fibula, and an osteotomy of the distal tibial metaphysis with the aim of posterior translation of the distal tibia of the order of 2.0 cm and correction of the mild recurvatum. The most important deformity to correct is the translation." [Emphasis added] 87. As at August / September 2004 Dr Elliott believed the plaintiff's problem was one of non-union. When Dr O'Carrigan saw the plaintiff on 27 September 2004, he wrote to Dr Elliott to identify the purpose of the referral as being for "persistent non-union", however, in the discussion section of his report, Dr O'Carrigan defined the problem as being one of "delayed union" with healing having occurred in a mal-united position. It seems that Dr O'Carrigan's acknowledgement of "non-union" could have simply been a confirmation of the terms of Dr Elliott's letter of referral. 88. Unfortunately Dr O'Carrigan was not called to clarify what he meant when he used these differing terms. Nor was there any evidence of clarification by correspondence from Dr O'Carrigan. 89. On 30 November 2004 Dr O'Carrigan saw the plaintiff again at which time he filled out a Treatment Information Form which he gave to the plaintiff in which he set out a number of considerations. A copy of that form was tendered as Exhibit "A Tab B". The principal purpose of this form appears to have been to inform the plaintiff of the treatment costs and the financial terms for the treatment, namely $20,000 payable over 12 months as the plaintiff was going to fund the procedure himself with the assistance of his family. 90. The form, which was signed by Dr O'Carrigan, stated the diagnosis as being mal-union of the right distal tibia and fibula. It states the recommended treatment as being osteotomy of the tibia and fibula with external fixation for gradual correction. No alternative procedure was listed in the space provided. However under the heading of complications reference was made to "delayed non-union" and the abbreviation "BG" which I interpret to refer to the possible need for bone grafting. 91. No evidence was available from Dr O'Carrigan to clarify these terms. 92. The form went on to identify the natural history of the underlying condition if left untreated, to be one of pain and arthritis in the right ankle. The treatment goal was identified to be to achieve correction of the deformity and to thereby relieve pain. 93. On 30 November 2004 Dr O'Carrigan wrote to Dr Elliott in the following terms: "Greg…has had time to think about my recommendations, and wishes to proceed as soon as possible. He has a delayed union in the right distal tibia and he is going to get some up to date x-rays today to see whether it is united or not. He has a malunion in the fibula and malunion in the tibia and he needs a Taylor spatial frame applied with an osteotomy of the distal tibia and fibula and a gradual correction. There is a risk of him requiring a bone graft. He is yet to decide whether he is going to have that surgery and the possibilities are Sydney Southwest Private, or Liverpool Hospital as a public patient" [Emphasis added] 94. On 30 November 2004 Dr O'Carrigan filled out a Treatment Information Form describing his diagnosis as "Malunion R distal tibia & fibula." He described the possible complications of the planned procedure as including delayed union, non-union and maybe bone grafting. 95. On 20 February 2007, the plaintiff's solicitors wrote to Dr O'Carrigan to request a report outlining matters of history, treatment, the nature of the injury and disability, the present condition, the prognosis, fitness for work, the need for further treatment and related matters. In his reply to the plaintiff's solicitor, dated 20 May 2007, Dr O'Carrigan recounted the pre-remedial operation history and then set out his interpretation of x-ray films he had viewed as follows: "X-rays showed two AO screws transversely just above the right ankle joint. The ankle joint looked well preserved. There was a healed fibular fracture and there was a transverse distal tibial fracture in the metaphyseal region that had a sclerotic appearance. The fracture line was still visible centrally, but there was some evidence of periosteal new bone formation laterally. There was a sagittal plane deformity with recurvatum of 24 and anterior angulation with a distal fibular malunion. There was also 2.0 cm of translation of the distal tibia anteriorly on the proximal shaft. It was felt that he had delayed union of the right distal tibia and it was healing in an incorrect position with anterior translation and angulation of the distal tibia on the proximal tibia. This was associated with a fibular malunion and some ankle stiffness. He was advised to correct the deformity and because of the degree of accuracy required it was recommended that he have a Taylor spatial frame applied, which was a circular external fixateur that allows correction using a computer programme that can correct multiple planes simultaneously. He was reviewed on 30th November 2004. He was keen to proceed with Taylor spatial frame correction of his nonunion." [Emphasis added] 96. It appears that Dr O'Carrigan may have used the terms "delayed union" and "non-union" interchangeably. 97. In other evidence, it was explained that periosteal bone formation was not the same as callus. Remedial treatment provided by Dr O'Carrigan 98. Dr O'Carrigan performed a total of five remedial procedures on the plaintiff's right lower leg. These took place on 24 January 2005, 20 July 2005, 12 August 2005, 20 July 2006 and 8 November 2007. A sixth procedure was planned but the plaintiff did not proceed with the recommendation. First remedial procedure - 24 January 2005 99. On 24 January 2005 the plaintiff underwent surgery at Sydney Southwest Private Hospital. On that occasion Dr O'Carrigan performed the planned osteotomy procedure. In his letter to the plaintiff's solicitor he described the procedure as follows: " … application of a two ring Taylor spatial frame and a Gigli saw osteotomy of the tibia and fibula at the previous fracture site, which appeared to have united ." [Emphasis added] 100. At the trial some attention was focussed on the meaning of these words. 101. On 28 January 2005 Dr O'Carrigan sent Dr Elliott a copy of the operation note which provided a more detailed account of the first procedure he had performed. The note stated: " Operative procedure Under a general anaesthetic, antibiotic prophylaxis and intermittent tourniquet control, the right leg was prepped and draped in the usual manner. Under image intensifier control, a preconstructed Taylor spatial frame with two rings was applied, with distal fixation and proximal fixation with halfpins. A Gigli saw was passed across the tibia and distal fibula at the site of the previous fracture, which appeared to have united. A Gigli saw osteotomy was performed." 102. Following the first procedure and before the second procedure Dr O'Carrigan saw the plaintiff for post-operative review on 5 occasions, namely 18 March 2005, 13 April 2005, 17 May 2005, 14 June 2005 and 18 July 2005. Second procedure - 20 July 2005 or 28 July 2005 103. On either 20 or 28 July 2005, his letter refers to both dates, Dr O'Carrigan admitted the plaintiff to the Camden Day Surgery Centre where he uneventfully removed the Taylor spatial frame. The fracture was clinically united at that time. Dr O'Carrigan's operation note dated 28 July 2005 states that Dr O'Carrigan carried out a second remedial procedure on the plaintiff, which consisted of the removal of the Taylor spatial frame from the right tibia. His operation note stated: " Operative procedure Under a general anaesthetic and antibiotic prophylaxis, the right Taylor frame was removed. Clinically it was united. The pinsites were dressed. Post-operative Instructions Mobilise non weight bearing. Followup (sic) in two weeks." 104. On 9 August 2005 Dr O'Carrigan reviewed the plaintiff following removal of the Taylor frame and determined that it was obvious to him that the fracture had not united and that there was some movement at the fracture site. When he reviewed the x-rays he was still able to see a clearly visible fracture line. Third remedial procedure - 12 August 2005 105. On 12 August 2005 Dr O'Carrigan carried out a third remedial procedure on the plaintiff consisting of open reduction and internal fixation with bone grafting of the right lower tibia for non-union. His operation note stated: " Operative procedure Under a general anaesthetic, antibiotic prophylaxis and intermittent tourniquet control, the right leg was prepped and draped in the usual manner. The right iliac crest was prepped and draped. The previous transverse incision was used and the non-union (sic) identified. There was some partial bridging callus formation but not strong enough to maintain fracture union and integrity. All fibrous tissue was excised and bleeding bone surfaces confirmed after release of tourniquet. A corticocancellous wedge of bone graft was harvested from the right iliac crest as well as a large amount of cancellous bone graft and this was placed into the nonunion (sic) site with the wedge placed anteriorly to act as a structural graft. A percutaneous Zimmer anterolateral eight hole plate was applied with percutaneous fixation distally and proximally to maintain the correction. The wound was closed in layers. A vacuum dressing was applied. Post-operative Instructions Elevate leg. Circulation observations. IV antibiotics." 106. The above procedure involved the insertion of a percutaneous Zimmer antero-lateral eight hole plate which was applied with percutaneous fixation distally and proximally to maintain the correction. 107. Following the third procedure and before the fourth procedure Dr O'Carrigan saw the plaintiff for post-operative review on 5 occasions, namely 2 September 2005, 1 November 2005, 13 December 2005, 7 March 2006 and 12 May 2006. 108. On 12 May 2006 Dr O'Carrigan noted that it was clear that there was an external rotation deformity in the tibia itself. Further corrective surgery was then planned for 20 July 2006. Fourth remedial procedure - 20 July 2006 109. On 20 July 2006 Dr O'Carrigan carried out a fourth remedial procedure on the plaintiff which consisted of the application of an external fixator to the right lower leg for assisted internal derotation osteotomy of the right tibia with osteotomy of the right fibula. His operation note stated: " Operative procedure Under a general anaesthetic, antibiotic prophylaxis and intermittent tourniquet control, the right leg was prepped and draped in the usual manner. Two Ilizarov arches were applied proximal and distal allowing for the degree of internal rotation required. The left leg was prepped and draped in the operative field for comparison and a power saw mid-fibular osteotomy was performed. The wound was closed in layers. A power saw proximal tibial osteotomy was then performed with repair of the periosteum and the correction held with the external fixateur and checked clinically prior to application of the seven hole proximal, lateral, tibial locking plate, which was inserted percutaneously and fixed with five proximal screws and four distal screws. The wound was closed in layers. Post-operative Instructions Elevate leg. Circulation observations. IV antibiotics. X-ray." 110. Following the fourth procedure, Dr O'Carrigan saw the plaintiff for post-operative review on 4 further occasions, namely 2 August 2006, 25 October 2006, 9 January 2007 and 17 May 2007. Dr O'Carrigan offered the plaintiff a further procedure to remove both the proximal and the distal implanted fixation plates. Fifth remedial procedure - 8 November 2007 111. On 8 November 2007 Dr O'Carrigan carried out a fifth remedial procedure to remove the implanted proximal and distal fixation plates from the plaintiff's right tibia. Result of remedial treatment 112. Dr O'Carrigan continued to see the plaintiff for post-operative review between March 2005 and May 2007. During this period Dr O'Carrigan sent some 20 letters to Dr Elliott to keep him informed of the progress being made by his former patient : Exhibit "G". 113. Following the removal of the fixation plates on 8 November 2007 the plaintiff was scheduled to attend a post-operative review with Dr O'Carrigan but he did not attend for that review. C. EVIDENCE REVIEW – LIABILITY AND CAUSATION Tabulation of consultations 114. The tabulation that follows conveniently sets out the sequence of the historically relevant occasions on which doctor-patient contact in the relevant period occurred, both at the hospital fracture clinic, and with Dr Elliott. 115. These were the occasions on which the incremental reviews took place concerning the progress of healing of the plaintiff's fractures. On these occasions the planning of further management of the plaintiff's care was also considered. This tabulation therefore serves to provide a convenient reference framework for the consideration of the allegations of negligence relied upon by the plaintiff in order to seek to make out his case against the defendants. 116. The source of the tabulated information is the Wollongong Hospital fracture clinic notes comprising Exhibit "F Tab B" and the patient notes kept by Dr Elliott, which comprised Exhibit "G". Review date Location of treatment Name of reviewer Notes of consultation Management plan Evidence source 1. 14.10.03 Wollongong Hospital Dr Elliott "Satisfactory post-op. Follow-up at fracture clinic" Plan for review Ex G p.9 2. 24.10.03 Fracture Clinic Wollongong Hospital Dr Salman "… Xrays R ankle : position satis." See again 2/52 with repeat x-rays Ex F.B.23 "Mx 3. 07.11.03 Hospital Dr Palapitige "3/52 post op. int-fixation of pilon fracture of left tibia … Recent X ray – looks O.K 1. Gentle ankle physio. Ex F.B.24 Seen by Dr Elliott." 2. NWB. 3. R/V in 3/52 with a new x ray." 4. 28.11.03 Hospital fracture clinic Dr Salmon "… X rays R ankle : Satis – early callus." "… see again 3/52 with new x rays … (consider looking for removal of fixator on next visit) * non – weight bearing" Ex F.B.25 5. 19.12.03 Hospital fracture clinic Not identified "… New x ray – Still N of healing (???)" "R/V in 3/52 with new X ray. Keep NWB. Ankle physiotherapy." Ex F.B.26 " Fixator dynamised. 6. 09.01.04 Hospital fracture clinic Dr Palapitige "…O/E equinus deformity + today's X ray a- minimal callus. Gap in the # site" Wt bearing allowed as tolerated Ex F.B.27 Intensive ankle physio R/V in 3/52 (with) a new xray" " Remove int - fix 7. 06.02.04 Hospital fracture clinic Dr Palapitige "…Still no callus. gap after dynamisation. Two pins got infected. Equinus deformity of foot improved a bit. Discussed (with) Dr Elliott." POP Ex F.B.28 Book for surgery on 9.02.04." 8. 09.02.04 Hospital Dr Elliott Operation note : Not stated Ex G p.10 Dr Palapitige "… Pin tract infection … Removal of external fixator right tibia …. Radiographs have demonstrated delayed union of the distal tibial fracture." 9. 24.03.04 Hospital fracture clinic Orthopaedic Registrar not named "~ 20° anterior angulation; appears unchanged from previous Xray. Review with x-ray in 1 month Ex F.B.21 Good callus fibula; some callus tibia. → replace POP + check wounds." "OOP 10. 23.04.04 Hospital fracture clinic Orthopaedic Registrar not named "R/V OOP – non tender, reasonable ROM ankle X ray – not fully healed." ROM Ex F.B.22 Partial WB" Review in 2 weeks "1. Stop smoking! 11. 07.05.04 Hospital fracture clinic Dr Elliott "Progress X ray – slow progress of bone union." 2. Partial weight bear R leg. Ex F.B.22 See 1/12 X ray " 12. 07.05.04 Hospital fracture clinic Dr Elliott Consultation Not stated Ex G p.10 13. 11.06.04 Hospital fracture clinic Not identified "…X ray today – lat suggests minor collapse posteriorly with better bone compaction (aligned AP – good position maintained" "Progress to FWB; initially x 1 crutch then as tolerated. R/V 1/12 with Xray" Ex F.B.29 14. 11.06.04 Hospital fracture clinic Dr Elliott Consultation Not stated Ex G p.10 15. 09.07.04 Hospital fracture clinic Dr Palapitige "…X ray today # healing progression slight paste anterior angulations +." "For Dr Elliott's opinion on next visit." Ex F.B.29 16. 05.08.04 Dr Elliott's private consulting rooms Dr Elliott Consultation. Requires bone grafting R tibia with internal fixation. Option of fibular osteotomy & plating discussed as well. Ex G p.11 Cast removed 8 12 weeks ago. X ray shows that there is tibial non-union with slight anterior angulation. O/E good circulation. Minor deformity. PDx : Non-union # right tibia. 17. 11.08.04 Dr Elliott's private consulting rooms Dr Elliott Referral to Dr O'Carrigan. Referral for management Ex G p.11 117. It is apparent from my review of the evidence that the references in the medical records to a review of relevant x-rays has been only briefly summarised in the notes. This is also evident in the quoted portions set out in the above tabulation which draws upon those notes. 118. In approaching the task of making findings on the issues calling for decision I have had regard not only to the summarised notations in the notes, but also to the more extensive professional opinions expressed by the orthopaedic experts who reviewed the relevant x-ray films. It is of importance to note that such experts relied not only upon radiologically reported descriptions of such films, but on their own expert interpretations of the films, drawing upon their clinical knowledge and understanding of the condition under review and treatment. 119. The expert liability and causation evidence comprised the reports and oral evidence of 5 specialist orthopaedic surgeons, including the second defendant, Dr Elliott. In the paragraphs that follow, I set out a summary of the written and oral opinion evidence of those witnesses. No evidence was called from the registrars who saw, treated and reviewed the plaintiff at the hospital. Evidence of Dr Robert Elliott – treating orthopaedic surgeon / second defendant 120. At the time the plaintiff was treated for his injury, Dr Elliott was a VMO at the hospital. 121. Dr Elliott did not provide any written reports for the purpose of the proceedings. Without objection, in addition to giving factual evidence concerning his management of the plaintiff's fractures, his oral evidence also included opinion evidence. 122. Given the nature of the case, in which Dr Elliott's professional clinical judgments were under attack, I consider it only appropriate that I set out a detailed summary of the evidence given by Dr Elliott. This is so especially since his management was the subject of criticism by the plaintiff and by the two experts called in support of the plaintiff's case. 123. Dr Elliott's evidence was introduced in the following terms: " Q. During October of 2003, were you called to deal with a fracture suffered by a Mr Peterson? A. Yes. Q. Sitting here today, do you have a recollection of that fracture? A. Yes I do. Q. What sort of fracture was it? A. It was a grossly comminuted fracture of the distal tibia and also involved the fibular. The radiographs and CT scans done pre-operatively demonstrated multiple fragments. The fracture extended into the joint, there was displacement of the fragments. There was also - there were also gaps within the joint, indicating severe disruption of the ankle joint itself with small fragments probably pushed into the tibia. There were abrasions over the front of the leg, there was also air in the joint and both of those factors indicate that it was technically a compound fracture. Q. On the scale of fractures of a lower limb that you see, how would you rate this particular one? A. Eight, eight and a half out of ten, where nine and ten would lead to amputation. Q. Do you have a recollection of how many individual fragments there were? A. Probably 25 to 40. Q. I think Dr Summersell undertook a closed reduction supervised by you, is that correct? A. We both - yes it is. Q. What if anything was applied or inserted during the course of that closed reduction? A. Yes we - we inserted wires attached to an external fixator and we inserted two small fragment screws into the distal tibia to hold the reduction. Q. What was the reasoning behind a closed reduction as opposed to an open reduction and or fixation? A. This is classified as a high energy injury and there is significant damage, not only to the bone and to the ankle joint and the articular cartilage of the ankle joint, but there is significant damage to the blood flow to the limb and surgical intervention would add insult to injury and further compromise blood flow and possibly compromise the final outcome. " 124. Dr Elliott explained that at the time he treated the plaintiff he had a practice of following the progress of patients at the fracture clinic in cases of complex injuries, such as in the case of the plaintiff. This involved not just leaving the treatment to the sole discretion of the registrars, but to sit with the registrars, discuss and review progress, look at the x-ray films, and discuss pathways of management. 125. Dr Elliott stated that in early 2004, in connection with tibial fractures, it was his usual practice to remove external fixators as soon as possible within the time range of 2 to 4 months. He said this was because the continued presence of the fixation device could delay progress of healing to bone union by keeping the fracture site rigid and preventing minor movements, thus inhibiting the formation of callus around the fracture site. 126. He said that in January 2004 he advised the removal of the fixator device because of the presence of an infection. He stated that the radiographs taken a few weeks following the removal of the external fixator showed an anterior angulation of the fracture at approximately 20 degrees in the sagittal plane, which he described as being the plane of joint movement. He stated that there were a number of management options at this point. 127. In this regard, he stated that one option was to accept a certain degree of angulation because it was in the sagittal plane, as it was best left at that time to try and achieve bone union. He stated that another option was to perform a closed reduction under general anaesthetic and correct the anterior angulation, but he said he did not think this was a viable option because in his experience, the angulation would have recurred, so an internal fixation would have been required at the same time. 128. He gave his reasons for rejecting the latter option in the following terms: " Q. As at February, March 2004 did you consider the possibility of performing an open reduction and fixation with or without graft? A. It was considered but rejected because this is a high energy injury, severe soft tissue damage. It was felt that opening a fracture site and disturbing the soft tissue envelope around the bone would further compromise bone healing and in addition, it's a very distal fracture and it is very, very difficult to get adequate distal fixation of the fracture with the implants available at that time. Q. Would you have contemplated an osteotomy as at March 2004? A. No I felt it would have delayed his progress, led to further immobilisation. My aim was to obtain bone healing and move the joint and improve the soft tissue function of the leg and to do an osteotomy at a later date, once fracture healing had occurred. Q. What was the advantage if any that you considered as at March 2004 as to delaying the osteotomy? What is it that you achieved by delaying it? A. Earlier union. " 129. Dr Elliott explained the purpose of a later performed osteotomy as being to correct angulation. He explained that he would have regarded more than 20 degrees of external rotation as being significant. He stated that a patient might be able to cope with a certain amount of rotation. He stated that he was attempting to achieve bone union, and would then analyse the extent of any deformity to see whether or not it required repair. 130. Dr Elliott explained that weight bearing was important for promoting bone union because bone was a dynamic tissue which responded to stress placed around it and the formation of callus was dependent on some degree of movement, hence the need for weight bearing following the removal of the fixation frame. 131. Dr Elliott explained the disadvantage of a failed attempt at internal fixation and bone grafting in the February, March and April 2004 period as being a cause of further delay in union, interference with blood flow, delay in wound healing, possible skin loss requiring rotation flaps at a later stage, and an increased risk of infection, both of the soft tissues and of bone. He said these were risks which he was not prepared to take. 132. Dr Elliott said he was aware of the April 2004 radiology, and stated it was his belief that it showed that bone union was progressing. He based this belief on a comparison between the April 2004 radiological appearances and the appearances on the previous radiographs. He stated that he believed bone union had progressed following the removal of the external fixator. 133. Dr Elliott stated that the range of time for a tibial fracture to heal was progress to union after 2 months, but it was possible for progress to union to take 4 to 6 months, depending on the severity of the injury. Apart from the severity of injury factor, Dr Elliott stated that other factors that influenced healing included the amount of energy that caused the fracture, the amount of soft tissue damage, whether the fracture was simple or compound, and other factors, such as cigarette smoking. In this latter regard he gave the following evidence : " Q. Just on that score, was any advice ever given by you to the plaintiff in relation to cigarette smoking? A. Yes. Q. What was it? A. To cease smoking and I gave the reasons. Q. Do you recall when that was? A. Yes it was in one of the fracture clinic sessions. I clearly remember it because the registrar had told me that he was still smoking and I remember my feeling at the time, it was one of disbelief and I spoke to him about it and explained what cigarette smoking does and as I usually do with patients, I say if we make the effort then I would expect him to make an effort as well and to give up the smoking, because it has serious consequences for fracture healing. Q. Well that's the question I wanted to ask you, what are the consequences of smoking on progression to union? A. It delays healing. Q. On what you were told of this accident, would you have described the fracture as a high energy one? A. Yes. Q. Would you have described it as simple or complex? A. Complex. Q. Did you apprehend when you started treating Mr Peterson that this may take longer to heal? A. Yes. Q. What factors influence whether or not you are prepared to continue to watch and wait to see whether or not healing is taking place? A. I like to see a change in the X-ray from month to month, indicating progression of bone healing. I am also very hesitant to inflict surgical trauma on an injured limb that has sustained a high energy injury, because of interference with blood flow from the surgery and the initial injury. I am very hesitant to operate on anyone who smokes because of the world literature which points out the adverse affects. Q. The progression of the fracture, would you have described that as delayed? A. Yes. " 134. Dr Elliott stated that at some stage, which was not initially identified, but which I infer was in early August 2004, he formed the view the plaintiff's condition may be going backwards. This view was as a result of a call he received from a registrar at the clinic. Dr Elliott asked for the plaintiff to be sent to his rooms. 135. On 5 August 2004 Dr Elliott examined the plaintiff at his rooms and accessed and reviewed the x-rays via a website. He concluded that maybe he could possibly have been wrong and union was not progressing, and as a result of weight bearing and activity, the plaintiff was experiencing pain coming from a non-union rather than a delayed union. He based that view on the radiological appearance of a small anterior break in the callus formation. Dr Elliott's patient history notes for 5 August 2004 contain his handwritten note that states "x-ray shows that there is tibial non-union with slight anterior angulation". 136. Dr Elliott stated that at the consultation in his rooms on 5 August 2004, he made a provisional diagnosis of non-union of the fracture when looking at the lateral view of the x-ray that he had examined at that time. The terms delayed union and non-union were defined by Dr Elliott as follows : " Q. What is the difference between non-union and delayed union? A. Delayed union is - the definition is that union will eventually occur. Non-union - the definition that union will not occur without intervention ." 137. Dr Elliott stated that he had gone over the plaintiff's x-rays and looked at them carefully. He stated that at no time was there strong evidence of non-union. He explained this was because sclerosis at the fracture margins indicated callus because the fracture line itself had become blurred with time, indicating that the callus was crossing the gap at the fracture site. He explained that in cases of non-union, the ends of the bone become more sclerotic and the fracture line becomes clearer when viewed on x-ray. 138. Dr Elliott stated that in his view, the plaintiff's x-rays did not show any clearing at the fracture site, and over time actually showed that the line became less and less discernible, indicating to him that union was progressing, and that therefore he was dealing with delayed union rather than non-union. 139. On 5 August 2004, Dr Elliott made an entry in this clinical notes showing a provisional diagnosis of non-union. In his oral evidence he explained this to mean that at the time he thought the plaintiff may have a non-union rather than a delayed union of the right tibia. 140. Dr Elliott stated that at that time the treatment option appeared to be a bone graft, either with or without internal fixation. This would at the same time correct the fibular deformity comprising 20 degrees of anterior angulation, which he was able to discern both clinically and radiologically. He stated that he felt something needed to be done, and he intended to himself perform an osteotomy procedure on the plaintiff, and at the consultation he made arrangements for the plaintiff's admission to Wollongong Hospital to undergo that procedure. 141. He identified the intended procedure as being an Ilizarov procedure, in which a frame is placed around the limb with screws, allowing correctional forces to be applied three-dimensionally in all planes to correct complex deformities by holding them in the desired position pending healing occurring. 142. Dr Elliott explained that shortly after these booking arrangements had been made for the intended procedure, he reconsidered carrying out the procedure himself, and in the plaintiff's best interests, he referred the plaintiff to Dr O'Carrigan, a tertiary specialist in the use of that technique. He indicated that he felt Dr O'Carrigan was in a better position to attempt to deal with the plaintiff's difficulties than he was at that time. 143. Dr Elliott stated that following that referral, Dr O'Carrigan has kept him informed through correspondence with regard to the plaintiff's progress. He has not seen the plaintiff since making the referral to Dr O'Carrigan. 144. Dr Elliott was cross-examined at length. 145. Dr Elliott was taken to the x-ray reports within the first defendant's hospital clinical notes that comprised Exhibit "F". It was clear that he disagreed with some of the reporting on the x-ray films by radiologists as set out in the notes. He rejected the notion of a connection between osteopenia or disuse osteoporosis and non-union or delayed union, stating that bone healing took place despite such a condition being present. He disagreed with the radiological diagnosis of tibial non-union. 146. In this regard, he stated that he looked at the radiological films and formed his own opinions on the radiology signs rather than relying on what was said by the radiologist. He stated that if a radiologist had reported that callus formation was present, he would have to look at the x-ray himself to view it, as reports would not necessarily assist him in forming a clinical opinion on a review of the patient. 147. In this regard he explained that he disagreed with the reported x-ray description of an un-united fracture of the distal tibia and fibula at page 42 of Exhibit "F". He stated that in his view, the film indicated osteopenia of the bone, which was a loss of bone density due to non-weight bearing. He also stated his disagreement with the radiologist's interpretation of the presence of sclerosis at the fracture site to the effect that it had not yet healed. In this regard he explained : " Q. Was that the mal-union that was referred to by Dr O'Carrigan? A. Correct. Because you can look at an X-ray and it may have the appearance of significant delayed union however when you open up and lay the flesh aside and look at the bone you may not even see where the fracture line is so it is difficult to relate the X-ray appearance to actually what is happening to the bone. You have to understand that the electrons of the X-ray machine will go through an area where there is little bone compared with the surrounding areas and give an appearance that fracture healing is not occurring ." 148. Dr Elliott explained that most orthopaedic surgeons do not rely on the radiology reports to any great extent, and relied on a combination of the radiological appearances and the clinical information available to them, noting that at times there were differences between the interpretations of radiologists and orthopaedic surgeons. 149. Dr Elliott confirmed he had been involved in the orthopaedic management of the plaintiff on a total of 7 occasions, namely on October 12 and 14, 2003, February 9, May 7, June 11, August 5 and 11, 2004. 150. Dr Elliott disagreed with the proposition that he had left the primary responsibility for the management of the plaintiff's fractures to the fracture clinic. He stated he had a significant input into the plaintiff's treatment. He identified the prevailing system of the clinic as being one where the registrars were under clear instructions that they would be able to contact him to discuss a patient if he was not at the hospital, and was, for example, carrying out elective surgery or doing some trauma surgery. 151. Dr Elliott was cross-examined on selected portions of what he acknowledged was an accepted and standard orthopaedic textbook, Practical Fracture Treatment, by Ronald MacRae, Churchill Livingstone 1981. In his answers to cross-examination he pointed out the difficulties of citing quotations from a textbook and taking them out of context when evaluating clinical decision making. In this regard, he stated that one needed to look at the patient to consider all of the relevant factors before making a decision. This involved the treating surgeon, rather than the reviewing radiologist, having the prevailing view. 152. Dr Elliott cautioned against reliance upon generalised statements in textbooks, citing the need to relate what is written in the textbook to the circumstances of the patient undergoing treatment. 153. In that context, he acknowledged that it was desirable to anticipate complications and to avoid procrastination with regard to non-union of fractures. He confirmed that procrastination did not have any part to play in treatment or fracture management. He identified what he described as a wait and see approach to progress and management. He rejected the suggestion that procrastination had any part to play in the management of the plaintiff's fracture. 154. Dr Elliott explained that it can take patients with fractures of the tibia between 4 to 6 months to heal. He said that in this context, if union occurred in four months, then the patient was doing very well. In this regard, he said that at the 4 month mark, it was his practice to make a decision about bone grafting. He stated that such a decision depended upon a number of factors, including the severity of the initial injury, the degree of energy involved with the initial injury, the degree of soft tissue injuries, the state of the limb and social factors relating to the patient. He considered one of the relevant social factors included a history of smoking. 155. He acknowledged that at every stage of fracture treatment, in order to minimise the effects of the fracture, consideration must be given to the possibility of stiffness developing in the adjacent joints, and this was required to be addressed by accurate reduction of the fracture, wherever this was possible. 156. He was specifically asked about the x-rays taken on 3 February 2004 and on 9 February 2004 where the radiograph reports stated that there was delayed union at the distal tibial fracture. He stated that there is nothing in the report which assisted him. Presumably, this was because he would have needed to examine the films himself rather than just rely on a report. Alternatively, his comment may have been due to the brevity of the report. " Q. Dr Elliott if you look at page 27 of the notes you've been taken to in respect of the consultation on 9 January 2004 the registrar has noted of the X-ray taken on that day "minimal callous" and on 6 February 2004 the entry is made "still no callous". Are those two notes consistent or inconsistent or there some other explanation? A. If he has first written "minimal callous" and then he's written "still no callous" the reason could be the angle at which the X-rays taken, sometimes the callous doesn't show up and is obscured by normal bone. My guess is that he has said no - he has probably said no - he probably means no significant increase in callous following dynamisation of the external fixator and in three weeks it's too early to see any significant change. I would expect change for at least six - six to 8 weeks following dynamisation ." 157. Dr Elliott confirmed that no operation would have been planned at that stage without the registrar consulting with him. 158. Dr Elliott agreed with the proposition that if no callus formation was seen on x-ray after 4 months, that would not be an encouraging sign of healing. 159. He stated that on a review of the radiographic examinations between February 2004 and March 2004, there were no changes of non-union, but rather, the x-rays showed progression of union, with increased callus formation, once the external fixation had been removed. 160. He was questioned about his non-intervention in the treatment of the plaintiff's fracture at the 4 month stage, and defended his decision in the following terms : " Q. And you would expect bone union normally in about 4 months? A. Not in this case, I'd double that time because it was a high energy fracture significant soft tissue damage, impairment of blood supply, in addition he had an external fixator on for more than three months. That causes osteopenia and delay of callous formation and in addition cigarette smoking delays union. So all those factors make the text book assessment of fracture healing of the tibia incorrect. That relates - that's a generalisation. It doesn't relate to Mr Peterson's case ." 161. Dr Elliott was taken to the 24 March 2004 report of a progress x-ray which stated "slight increase in the degree of callus formation". He said that before this could be considered to be an encouraging sign, he would need to carefully look at previous x-ray films to see whether there had been some increase or decrease in the fracture line or whether it had remained the same. 162. Dr Elliott stated that he had gone through all of the x-ray films to refresh his memory of them. He drew attention to an inconsistency in the report of the film taken on 23 April 2004, the report of which stated "there's no evidence of healing of the tibial fracture" because, in his view, the x-rays showed progression of bone healing, and the report was therefore inconsistent with the previous report. In his opinion, there was evidence of healing of the tibial fracture, and so he disagreed with the report of the film. 163. Dr Elliott was taken to a number of other radiological reports. 164. Dr Elliott expressed his disagreement with the report of 7 May 2004, which referred to what appeared to be an un-united fracture of the distal fibula. He disagreed with that radiological assessment. He also disagreed with the radiological assessment of that x-ray film showing what appeared to be non-union between the distal tibia and the tibial shaft. Whilst he agreed that what had been written in the radiological reports of these three films revealed nothing encouraging about union of the tibial fracture, he pointed out that his own opinion was at variance with what had been written in those reports. This raised a question of the comparative weight to be given to radiology reports in contrast to the opinion of the treating surgeon. 165. Dr Elliott explained the appearance of increased angulation at the fracture site following the removal of the Hoffman external fixator as indicative of movement of the bone at the fracture site with associated delayed union. He explained that this had led to a state of mal-union. He was then asked whether this circumstance warranted surgical intervention. His evidence on this topic was as follows: " Q. So at the first indication of there now being angulation in your opinion did that warrant any action? A. I considered open reduction and internal fixation to correct that union but I felt that it would have been detrimental to this man. I felt that the risks were too great to correct that degree of angulation and so I, with the registrars, accept that degree of angulation knowing that it could be corrected at a later date. In addition this man had very serious injury to the ankle joint surface itself and there is - there was a probability of post traumatic osteoarthritis of the ankle joint. There is no point in operating early in the stage in correcting an angulation when post traumatic osteoarthritis might occur and then he may require an arthrodesis of the ankle joint at which operation the angulation could be corrected. That was the reason for not going in and correcting the angulation. " 166. Dr Elliott was taken to the x-rays taken after the removal of the pin, following which angulation was evident. He denied that there was ever any evidence of non-union of the fracture of the fibula. He also denied there was any evidence of non-union of the tibia, and stated that the tibia went on to unite quite well although it took a long time to do so. This latter proposition was an obvious reference to his interpretation of the subsequent intra-operative findings made by Dr O'Carrigan on 25 January 2005. 167. Dr Elliott was taken to the report of the progress x-ray taken on 7 May 2004, and to his note of interpretation of that film which stated "slow progress to bone union" whereas the radiologist had found "no sign of progress". At that time Dr Elliott had made a note stating "stop smoking!" He explained that this note represented his own emotional reaction to the plaintiff smoking. He stated that he very sternly encouraged the plaintiff to cease smoking. He could not precisely recall whether on that day or on some other day he had told the plaintiff to stop smoking, but he had a definite recollection of doing so. I infer from the date and juxtaposition of the note, that he had given the plaintiff that advice on that day. 168. Dr Elliott agreed that his plan at that stage was to review the patient in another month. That review resulted in a further x-ray being taken of the plaintiff's right lower leg on 11 June 2004. 169. The cross-examiner took the opportunity to sum up Dr Elliott's opinions on the state of union of the tibial fracture and the interpretation of relevant radiology as follows: " Q. Dr Elliott this is the position isn't it. You say that in this case there was no evidence of non union? A. Correct. Q. You say that anybody who has reported an X-ray as indicating a non union is wrong? A. I'm at variance with that assessment. Q. Well you say they're wrong? A. Is there a difference? HIS HONOUR: Well the doctor's identified a difference in points of view and how you want to characterise it isn't important. HIRSCH Q. Do you say that you're right and you say that they're wrong? A. Yes. Q. It's your position that there was eventual union in this case wasn't there? A. Yes there was. Q. And because there was eventual union in this case, it is by definition a delayed union case? A. That is correct. Q. I'm reading once again from Practical Fracture Treatment your Honour, under the heading "Delayed Union". Can I ask you Dr Elliott whether you agree with this: "The difficult problem in this field is to differentiate between delayed union which is going to proceed with proper encouragement to union and delayed union which is going to go on to non union". Do you agree with that? A. Yes. Q. It is a difficult area? A. It is. Q. "The only sure arbiter is time", do you agree with that? A. And the radiological appearance and the clinical findings. Q. And the radiological appearance is a matter of debate in this case you understand? A. There are varying opinions about the radiographic appearance, yes. Q. "The disadvantage of delay is that it tends to encourage irreversible stiffness in joints"? A. Yes. Q. "And another disadvantage of delay is that it frequently creates problems of prolonged hospitalisation and absence from work"? A. Correct. Q. Those are considerations that you would need to take into account wouldn't you in deciding how much delay is permissible? A. Yes, balanced with the risks of surgery. Q. I'm going to get into the risks of surgery right now, thank you. You say that the reason why you did not intervene earlier in this case is one, that Mr Peterson was a smoker, isn't that right? A. That was one factor, yes. Q. And you say that because he was a smoker, that would affect his blood flow, is that right? A. Correct. Q. And that a reason for delaying any intervention in this case was because he was a smoker and it might interfere with blood flow, is that right? A. In combination with surgical approach, yes. Q. We're going to get to the surgical approach in a moment, but is it your evidence that a reason for delaying intervention in this case is because it was a smoker? A. It was a reason, yes. Q. Is it your practice in dealing with patients who are smokers to not intervene at all until you're satisfied they've stopped smoking? A. It depends on the condition of the patient and other factors ." 170. Dr Elliott agreed that he would have operated on the plaintiff if circumstances necessitated this, even though the plaintiff had persisted in smoking cigarettes, but stated that there was no need to intervene if there was no strong evidence of non-union. He said he was of this view even though he was aware that there were consequences of delay, presumably being the increased risk of adjacent joint stiffness which was described in earlier evidence. 171. Dr Elliott denied that his clinical approach had been that of him having adopted a "wait and see" position that had persisted for 10 months. He explained that what he had done was not to "wait and see" but to base his approach on successive reviews of radiological evidence, of what in his eyes was progressive union. He said this was so, even though there were consequences of delay which had to be weighed against earlier intervention. He said that in making that assessment, the factor of the plaintiff being a smoker was a significant reason, but was not a major reason. He went on to say that the risks of surgery was outweighed. He was interrupted from fully explaining this outweighing factor by the objection of his counsel. 172. When the topic was later taken up again Dr Elliott explained: " HIS HONOUR Q. Dr Elliott you said earlier that one of the factors that influenced your decision not to intervene earlier was the fact that the plaintiff was a smoker and you highlighted that as a significant factor. Another factor you mentioned was the surgical approach but it seems to have wafted off, we didn't quite understand what that meant? A. Whenever one operates on bone you have to strip the soft tissues away from the bone and in so doing you interrupt the blood supply. Q. And the significance of that is? A. It further delays bone healing and increases the chance of infection, however the blood supply does eventually return ." 173. The cross-examiner asked Dr Elliott about the circumstances in which he would intervene by operating, in the plaintiff's circumstances. In this regard, the following evidence was given: " Q. So you'd agree with me that subjecting a patient to the trauma associated with rigid internal fixation, is an appropriate thing to do in some circumstances of delayed union? A. In some circumstances of delayed union, yes and when combined with bone grafting. Q. Those would be in circumstances where improvement - I'm sorry where there has not been encouraging signs in the radiological appearance? A. I would like to see the radiology appearances actually deteriorate, in other words, increasing sclerosis at the fracture margins and increasing appearance of the fracture line itself. Q. Would evidence that now you have two fractures that are not healing properly, one in the tibia and one in the fibular, whereas previously you only had one, would that be a reason for not delaying? A. Are you talking about Mr Peterson, or in general? Q. No, I'm talking about Mr Peterson? A. His fibular fracture healed. Q. There was evidence that his fibular fracture did not heal and you disagreed with that evidence, do you remember that? A. I disagreed with the radiologists radiological opinion. " 174. As to the plaintiff's longer term prognosis, Dr Elliott identified a concern over the plaintiff developing post-traumatic osteoarthritis: " WITNESS: Post traumatic osteoarthritis was a concern, the articular cartilage in the ankle joint is not apparent on the X-ray. The ankle joint is seen as a gap and the X-ray then goes straight through the articular cartilage. With a progression of post traumatic osteoarthritis, then joint space narrowing does occur, then it becomes obvious on the X-ray. But that may take a period of years. HIRSCH Q. And permanent joint stiffness is something that you agreed is a recognised complication of delay isn't it? A. It is yes. Q. And this post traumatic osteoarthritis was a possibility in this case? A. When one looks at the CT scans it gives one an indication of the amount of joint damage that would've occurred in this high energy fracture and it was my belief in the early stages of his treatment, that he would most probably get osteoarthritis of the ankle joint. Q. That would have nothing to do Doctor, with your decision whether or not to intervene because of the delayed union of the tibia? A. Yes it does, because it means that you would have to consider whether one would do an ankle fusion. There is no point in correcting a deformity or performing a procedure to - to promote union if the patient is going to get ankle osteoarthritis and require an arthrodesis ." 175. Dr Elliott considered that it was a probability that the plaintiff would get post-traumatic osteoarthritis of the ankle joint, but he was uncertain as to the likely severity of this occurring, in other words, whether it would occur in 2 years, 3 years, 5 years or in 10 years time. Expert evidence – plaintiff's case 176. Two experts were called in the plaintiff's case, namely, Dr Bornstein and Professor Higgs. Dr David Bornstein – consultant orthopaedic surgeon 177. The plaintiff tendered a series of 6 reports from Dr David Bornstein, a consultant orthopaedic surgeon. These reports were respectively dated 4 September 2006, 26 February 2007, 22 March 2007, 13 March 2007, 1 November 2007 and 3 November 2008. Dr Bornstein also gave oral evidence. His opinions were developed incrementally over time as he was provided with more material. Reports of Dr Bornstein 178. Dr Bornstein was initially asked to indicate whether there was in his view a case to be made for alleged sub-standard medical treatment. He initially reviewed a series of 8 x-ray films that were respectively dated 13 October 2003, 24 October 2003, 7 November 2003, 28 November 2003, 19 December 2003, 9 January 2004, 25 February 2004 and 9 July 2004. It was clear from the dates of these films that initially he was not given a complete series as there was evidence of films having been taken on other dates. 179. Fairly, Dr Bornstein's first comment was that it was difficult to be dogmatic about providing an opinion in the terms that were requested because he had not been provided with any reports from treating surgeons, and he therefore restricted his initial comments to making general remarks. He was not critical of Dr Elliott's decision not to undertake an internal fixation at the time of the original injury. 180. In this regard, he stated that the comminuted fracture involving the epiphyseal articular region of the ankle had been reasonably well reconstructed in the primary treatment of the original injury. 181. Dr Bornstein went on to say that the plaintiff developed an established non-union at the main transverse level of the distal tibia just above the articular fracture. He stated that re-displacement occurred once the initial fixation device was removed in February 2004. 182. On 26 February 2004, Dr Bornstein wrote a letter of clarification to the plaintiff's solicitors in which he confirmed that his commentary on the x-rays as set out in his 4 February 2004 report was based on his own interpretation of the films. He requested a further copy of the films dated 25 February 2004 to confirm his views. He stated that on the films he saw, which were dated 25 February 2004, it was his view that the presence of sclerosis meant that there was non-union occurring, which in his opinion therefore dictated the timing of internal fixation. 183. Dr Bornstein commented on the 9 January 2004 x-ray and interpreted it as clearly showing that the fracture line of the lower tibia was clearly un-united and in the lower fibula it was shown to be partly united. 184. On 22 March 2007 Dr Bornstein provided a commentary letter following a review of the x-rays dated September 2004. He was of the view that those x-rays clearly showed a non-union of the transverse lower tibia but with the union of the intra-articular component below that level being held with two screws. Specifically, he stated : " There is quite marked sclerosis at the fracture margins on both sides and also the fracture line itself is clearly visible. … I would stress that this interpretation on my part is just that, an interpretation, by no means definitive nor is it possible to be definitive on the available films and especially on a medium that is a 2-dimensional representation of a 3-dimensional structure such as an x-ray" 185. There was some confusion in the labelling of the post-January 2004 x-rays shown to Dr Bornstein. He identified an x-ray as being possibly a 23 March 2004 film which in his view showed sclerotic margins at the fracture of the right tibia which he considered to be un-united. The x-ray which Dr Bornstein inferred to be dated 7 May 2004, in his view, clearly showed the tibial fracture to be un-united and only partial union of the fibula. 186. The 13 March 2007 report from Dr Bornstein contained some definitions of the terms delayed union, non-union and mal-union. 187. Dr Bornstein defined delayed union as union that occurs in a period that extends beyond the time expected for a particular bone fracture. In the case of a tibia, he described this anticipated period as being between 3 and 4 months, where it is expected that the bone will eventually heal because signs on x-ray indicate that this will occur. 188. Dr Bornstein defined non-union as a bone that will not go on to union irrespective of the length of time that elapses, unless there is intervention. He went on to identify sub-types of non-union, these being hypertrophic and atrophic non-union, the latter occurring where the bone is not sclerotic and shows a lucency of the fracture fragment where healing has occurred on both sides of the lucent line but not with the fractures healing to each other. 189. He stated there was no "bright line" evident between delayed union and non-union. 190. Dr Bornstein defined mal-union as being an angulation between two bones which should not be present, or a rotation in the longitudinal alignment, or a combination of these phenomena. 191. Dr Bornstein advised the solicitor for the plaintiff that there were some difficulties opening all the CD versions of the films for viewing. However, he went on to state that in his view the 7 May and 9 July 2004 films showed tibial non-union to be present. 192. Dr Bornstein stated that in his opinion a prudent orthopaedic specialist would have taken active steps to manage the plaintiff's tibial fracture prior to September 2004. He was hesitant to nominate an earlier referral date in the presence of confusion as to the correct labelling of the CD versions of the x-rays given to him for review. The active steps he had in mind were surgical in nature, namely: "Surgical measures employed are generally freshening the bone ends, removing sclerotic material and fibrous material and placing a bone graft and then immobilising the fracture. … In many cases surgical measures are combined with bone growth stimulation in order to achieve a result where things are becoming very protracted … the moment one recognises that there is a problem." 193. Dr Bornstein was also asked to consider subsequent events that occurred whilst the plaintiff was in the care of Dr O'Carrigan. He proffered a view as to why Dr O'Carrigan's 24 January 2005 operation failed. This was in the following terms: "The usual cause of non-union is ( a ) blood supply problem particularly in the lower end of the tibia and also in relationship to the type of trauma which has caused the injury in the first instance which may further have damaged blood supply but the usual cause of problems with healing fractures is in fact one of blood supply." 194. Dr Bornstein identified the fact that there is a failure rate with all forms of treatment and this is primarily due to a blood supply problem. 195. Dr Bornstein qualified his remarks to this point by stating that he was unable to see the September 2004 x-rays on the CD that had been provided to him for viewing. This was an important qualification because without viewing that film he could not comment on whether Dr O'Carrigan was correct in concluding that the plaintiff's tibial fracture had actually healed, the implication being that Dr O'Carrigan was only treating the rotation or angulation deformity. 196. Given the way in which the views of Dr Bornstein evolved over progressive viewings of x-ray films and by responding to questions, I consider it to be relevant to set out in full his final commentary after he had been given the hard copy x-ray films with definitive dates stamped on them: " I have now viewed hard copy of x-rays with definite dates on them. The x-ray of the seventh of May 2004 shows healing of the fracture of the fibula with definite bridging callus. There is early sclerosis of the main tibial fracture line, but in the anterior/ posterior view it would appear that there is a small area of union on the medial side. On the lateral view there is an anteversion ( sic ) of the distal fragment. The x-ray of the 23rd of April 2004 shows ante-version at the fracture site in the tibia and in the fibula, early callus in the fibula fracture site and again one gains the impression that there is some union of the medial cortex of the tibia, but one is talking less than 5% of the diameter of the tibia. The x-ray of the 24th of March 2004 does not show evidence of union of the tibia. There is ante-version again at the fracture site and perhaps some very early callus at the fibula fracture site. The x-rays are marginally more difficult to interpret because they are taken through a plaster cast. The x-ray of the 25th of February 2004 in plaster, shows some anteversion (sic) of the distal tibia and fibula but at this stage there is only very early sclerosis of the fracture site and I would diagnose these x-rays as being delayed union. It is my view that the x-ray of the 24th of March 2004 in plaster would be my trigger for further active treatment in this case, probably plating, bone grafting, and the addition of a bone growth stimulator. I trust this is information that you require. The Ct scan provided is the original scan and confirms the Pilon injury with severe comminution ." 197. In his final report dated 3 November 2008 Dr Bornstein addressed a number of issues that emerged from the reports of other experts. Where it becomes relevant to do so, I will refer to those comments in the course of stating my findings. In the meantime, it is germane to note Dr Bornstein's concluding remarks in his final report: "Mr Peterson's tibial fracture was in an area less prone to bad outcomes. The complication here, however was the severity of the original injury, which would certainly have affected the blood supply." Oral evidence of Dr Bornstein 198. In the paragraphs that follow I summarise and set out the salient features of the oral evidence given by Dr Bornstein. In his oral evidence, Dr Bornstein explained a number of technical terms. 199. A sclerotic margin was the development of cortex of bone or tubular bone at the fracture site in the transverse section. This was misspelt in the transcript as the transfer section. 200. Callus formation was the process of development of new bone being thrown out to bring two pieces of adjoining bones together, in the nature of bridging bone. 201. Dr Bornstein was asked whether a sclerotic margin was something readily apparent on x-ray, readily distinguishing it from callus. He replied that its distinguishability depended upon its stage of development, and on the experience of the observer who was undertaking the interpretation. In this regard he stated that if one was seeking to distinguish between a delayed union and a non-union, the development of a sclerotic margin would be the indicator that non-union was occurring as distinct from a delayed union being present. Non-union is seen when each end of the fractured bone is healing as an independent item without bridging of the fracture site with bone tissue. 202. Mr Hirsch asked Dr Bornstein to comment upon some matters referred to in the evidence of Dr Elliott. Dr Bornstein commented on the question of the severity of the injury as having a relationship between the degree of energy involved in creating the injury and the time taken for fracture healing as follows: " Q. Would the method of splintage have any significant impact on that 4 month window and I'd also ask you to assume that there was dynamisation of the--? A. If there's been significant distraction at a fracture site which the external fixation device is quite capable of producing and a Hoffman device is an external fixator which is quite capable of producing fairly significant distraction forces that can delay union, yes. If there's been dynamisation the purpose of the dynamisation is to allow compression to occur at the fracture site. That follows on from my previous answer regarding the principles of fracture treatment enunciated by the AO Group who have always insisted that you need high compression at a fracture site. Now how you achieve that high compression can either be mechanical or it can be by allowing the patient to simply bear load across the joint which ..(not transcribable).. physically forces the two ends of the bone together. Q. And dynamisation is the process that permits that force to occur, is that right? A. Yes. Q. In this case there was dynamisation on 9 January? A. Yes. Q. Having regard to that would you anticipate that there would be signs of union by the 4 month mark, that is in early February? A. Within about 4 weeks. If one is going to see any kind of benefit one would expect to see at least the very earliest signs. One would expect to see at least something on the x-ray. Now that might consist of a very very faint cloud of callus but the point is one would expect to see something. Q. In the x-ray that was done on 3 February is there any evidence of that fracture healing that you've described? A. Well I have a note in my - in the earlier reports on which I was questioned, that is the report of 4 September 2006 on page 2 of a series of x-rays which I saw taken on 25 February 2004. Q. So that's even later than a month-- A. Yes. Q. --after the dynamisation? A. And that's the film that you questioned me on earlier regarding the sclerotic line, there was no evidence of callous on that one. Q. So what does that tell you about the likelihood of proceeding to a good union? A. I would be suspicious of the fact that we are now dealing with a very chronic situation. Q. What would be your view, if I were to suggest that because this was a high energy fracture, it can take twice as long as normal to achieve union? A. It is very difficult to give a straight answer to that question. There is a school of thought that says the more severely a fracture is comminuted, the faster it will heal. And the reason behind, the reasoning - the physiology behind the reason for that is the fact that you now have wounds, you have - you are bringing in a blood supply, the whole point about healing is, it's everything to do with blood supply. And if you have a situation that brings in extra blood supplies, you will heal the area faster. Having said that, very, very high impact forces, can cause thrombosis of blood vessels, in which case you are decreasing blood supply, which again leads to a situation of non-union, or avascularity, or avascularity of non-union. Q. What level is that discussion directed, is it the macro level, or the micro level of capillaries? A. Mainly at the micro level. It applies primarily in things such as gunshot wounds, to be more accurate, but - where the main damage is caused by shock wave effect. But one has to be careful in terms of what one's talking about in terms of a high velocity injury here. Q. But does it follow that just because there is a high velocity injury, you would anticipate that it would take up to twice as long without injury to the area of tibia to heal? A. No not necessarily ." 203. Dr Bornstein was asked to consider the updated x-rays Dr O'Carrigan had available to him together with Dr O'Carrigan's intra-operative findings. He stated that he interpreted Dr O'Carrigan's reference to the previous fracture having united, to be a reference to the fracture of the fibula. He pointed out that the phrasing of Dr O'Carrigan's comments clearly referred to the fibula. In support of that view he pointed out that the Gigli saw used by Dr O'Carrigan was not the instrument of choice for cutting through dense bone, and was more appropriate for use in cutting through a fibrous union reasonably easily. This view was not shared by Professor Nade, who commented that the choice of saw was up to the operating surgeon, noting that the Gigli saw was in use before the advent of powered saws. Dr Bornstein said he would have used an oscillating saw followed by an osteotome which is a modified chisel, as this would have created less damage. He said he would not have used a Gigli saw, but acknowledged that it was theoretically possible to do so. He stated that it could potentially cause damage to nerves, blood vessels and structures behind the bone being cut. Whilst choice of instrument was not a direct issue in the case, it is nevertheless a matter from which certain inferences as to the nature of the bone being cut, could arguably arise. 204. Dr Bornstein was of the view that the reference by Dr O'Carrigan to there being some x-ray evidence of periosteal new bone formation laterally with the fracture line still being visible centrally, was evidence for non-union. He pointed out that periosteal bone formation was not callus. In his view, this pointed to the presence of a fibrous union that did not involve unity of bone. 205. Dr Bornstein made an important qualification to the process of interpreting x-rays of a 3-dimensional structure in a 2-dimensional way, as in an x-ray. He said it was possible to get a partial union, and a partial non-union and a partial delayed union in the same structure. That view was supported by Professor Nade, who explained the process in greater detail. Dr Bornstein referred to the example of different portions of the surface in a circular cross-section of bone at the loose ends of tubular bone, permitting a sclerotic portion, revealing some evidence of union. 206. Dr Bornstein emphasised that the manner of determining how the course of healing of a fracture was proceeding was to examine successive x-ray films. In this regard he stated that he did not think there was any progress evident when viewing the films between 25 February and 24 March 2004, which was 5 months post-surgery. He stated that when he took into account the 23 April 2004 x-ray, he said the reference to callus in that x-ray gives the impression that there is some evidence of union of the medial cortex of the tibia, but of the order of less than 5 per cent of the diameter of the tibia. He said of this that at 6 months post-surgery, it was taking far too long to progress to union. He said the same of the 7 May 2004 x-ray which was 7 months post-surgery. 207. Dr Bornstein re-iterated the view he expressed in his report to the effect that these findings ought to have operated as a trigger for action because there had not been a material change between the earlier film and the latest film, and such a change would have been expected between these dates. 208. On the issue of the plaintiff being a smoker, Dr Bornstein stated that smoking does interfere with bone healing, but of itself, it was not a reason for not intervening to operate. 209. On the issue of not operating at an earlier stage out of concern for damage to the skin and soft tissues, Dr Bornstein stated that there was an element of illogicality in that reasoning because, as the plaintiff had a mal-union, he was going to need a corrective operation in any event and this would have necessarily caused trauma to those tissues. 210. The question was not asked as to whether these factors acted in combination as a reason to delay surgery, and the issue of possible compromised blood supply due to the original injury was not followed up for an answer. 211. On the question of whether there had been an increase in morbidity due to delay in undertaking further surgery, Dr Bornstein stated that in the initial injury the ankle joint was certainly severely injured. He stated that in such cases the longer the joint is immobilised over a protracted period of time, the joints become more stiff and consequently, more difficult to mobilise. Dr Bornstein stated the basic proposition to be, that the sooner the joints can be mobilised, the less will be the consequential stiffness. This matter was of some relevance to an assessment of damages for non-economic loss. 212. Dr Bornstein was cross-examined on his stated opinions. 213. He confirmed that he was in no doubt the plaintiff would in the future be developing arthritis in the ankle joint referrable to the original injury. He also confirmed that the arthritis arising out of the original injury would have the potential to cause a diminution in the plaintiff's earning capacity. He agreed that from the time of the original injury, the risk of such arthritis developing was very high, and it carried with it the real possibility of the need for an ankle arthrodesis at some point. Dr Bornstein stated that because the reconstruction of the plaintiff's ankle joint following the initial injury was in a near perfect anatomical reconstruction, he was hopeful that the development of arthritis in the ankle would be delayed by 5 to 10 years. 214. Dr Bornstein agreed with a number of other propositions that were put to him by the cross-examiner. He agreed it was inappropriate to expose a patient to surgery merely to get him back to work. He agreed that the decision involving whether or not to operate was, as always, multi-factorial. This included a personal assessment of the risk of proceeding to surgery, and the personal choice of instruments for performing the surgery. He agreed that the expression Gigli saw osteotomy of the right tibia/fibula implied that the surgeon had cut through those bones. 215. Dr Bornstein also agreed that other relevant factors had to be taken into account in deciding whether or not to operate. These factors included an antecedent MRSA infection, the fact that the patient was a smoker, as this could interfere with the blood supply and healing, the potential for disruption to the soft tissues by the surgical approach, the possibility that an ankle fusion would be required at some stage due to the patient experiencing arthritis and discomfort, and the need to expose injured people to as few procedures as possible. Included in that consideration was the recognition that with each procedure, on opening the skin and operating on soft tissues, there was a risk of interference with the blood supply due to scarring. He also noted that the procedure of arthrodesis carried with it a significant primary failure rate. 216. Dr Bornstein confirmed these matters were valid considerations but he reserved the question of whether they were overriding considerations. He acknowledged that these were decisions for which Dr Elliott would have to take personal responsibility and in doing so, good practice would require that he would be expected to personally review the radiology. 217. Dr Bornstein acknowledged that his review of the radiology was at slight variance with what had been reported in the radiology reports, and he agreed that it was not uncommon for orthopaedic surgeons to differ in their opinions on radiology films and reports in such circumstances. He explained that this was due to the fact that orthopaedic surgeons were looking at films of fractures and operating on those fractures all the time, and it was their training and experience that at times enabled them to generally interpret standard x-rays more accurately than would a radiologist. This appeared to be related to experience accumulated over time. 218. Dr Bornstein was taken to the description by Professor Nade of the 24 March 2004 x-ray being taken, when the plaintiff was wearing a cast. He agreed the cast obscured the accuracy of the film in the context that Professor Nade had commented that any evidence of bone callus formation on that occasion was obscured by the presence of the cast. He clarified this by stating that the obscuring factor meant that there was a consequential shading, which made the analysis of callus more difficult to perceive. This led to a concession that it "could well be the case" that there may have been bone callus present when he looked at the film, but it may have been difficult for him to perceive. 219. Dr Bornstein agreed that the 23 April 2004 films had shown some early callus in the fibula but also some union in the medial cortex of the tibia, which could be seen as being some progress to union of the fracture. He acknowledged that what was shown on this film led him to change his view from that of non-union of the tibia to delayed union of the tibia. He acknowledged that by May 2004, the fibula had definite bridging callus of the fibula which indicated there was healing of that fracture. 220. Dr Bornstein confirmed that the application of a Hoffman frame, as was applied in the initial treatment, had the potential to increase the delay in bone union because whilst the fracture was in that frame, it would not be subject to the dynamic forces of weight bearing that served to promote bone healing. In discussing the so-called process of dynamisation of the fracture site, Dr Bornstein stated that it was a value judgment as to how long one should wait from the time of the original injury for solid union to occur. In the context of this case, his view was that the time that had elapsed for such a course was not justifiable. 221. Dr Bornstein acknowledged that the regular clinical review of the plaintiff, with regular radiology, accorded with good practice, as such opportunities should be used to make a correct decision as to further management. In this regard he also acknowledged that there was always a range of opinions on such matters. He expected that every doctor would have an opinion as to the timing for intervention, some leaning towards earlier intervention, and some leaning towards intervening "a little later". The parameters for such a latter intervention were not explored by either party. He stated his own position to be that he would have intervened shortly after February / March of 2004. 222. The effect of the plaintiff's solicitor ultimately showing Dr Bornstein the actual hard copies of the x-ray films as distinct from the previously viewed electronic versions that required viewing on a computer screen, was that Dr Bornstein changed his view as to the presence of non-union and stated his revised view to be that what was shown on the films was in fact delayed union. Notwithstanding that change of view, Dr Bornstein maintained that an unreasonable expectation of a delayed union was not acceptable in the presence of what he regarded as negligible healing. 223. He did not believe the films showed progress towards healing because of the very small or "tiny" area involved in such negligible healing, and the period of time taken to get to that point. The factor that based this view was the absence of callus. The presence of some small healing looked like primary healing, not callus, the difference being of some importance. Dr Bornstein held this view notwithstanding the primary objective of treatment of a fracture being to achieve bone union. 224. Dr Bornstein identified an important feature of orthopaedic treatment of fractures. This was that there was an ever-present risk that there could be non-union and delayed union at any time. He again acknowledged that there was a range of opinions as to the requirement to intervene, noting that some surgeons took a more aggressive approach, and some took a more conservative approach. 225. Dr Bornstein also made a distinction between tenuous bone union, which by definition, would technically be regarded as bone union, but this was different from functional or sound bone union, which was sufficiently strong for the patient to weight or load bear on the injured limb for normal use. This was a matter that appeared to be of some significance to the issues that called for resolution in the case. 226. Dr Bornstein agreed that if a rotational deformity was present this could have been corrected along with angulation at the one procedure, as had been the case with the surgery carried out by Dr O'Carrigan in January 2005, when a spatial frame was applied. 227. Dr Bornstein was not re-examined on any of the issues that emerged in cross-examination. Professor Robin Higgs – consultant orthopaedic surgeon 228. The plaintiff also tendered a report dated 3 May 2009 from Professor Robin Higgs, a consultant orthopaedic surgeon, biomedical and forensic engineer. Professor Higgs had available for his consideration the collected opinions of Dr Bornstein, Dr Donaldson and Professor Nade. This enabled the area for expert analysis to be narrowed into a shortened chronology. Professor Higgs also gave oral evidence. Report of Professor Higgs 229. Professor Higgs stated that the plaintiff's injury had been initially treated appropriately and with considerable skill, with the result that when the initial fractures were reduced, the position in which they were placed, was almost anatomic. On reviewing the subsequent course of events he concluded that the plaintiff's right tibia fracture progressed to a state of delayed union and the tibia and fibula fractures then suffered a deformity of 20 degrees of angulation at the fracture sites. He observed that the plaintiff's tibia fracture did not completely unite, and later required remedial surgery. In the paragraphs that follow, I set out the analysis by Professor Higgs that led to his commentary on the appropriateness of the treatment received by the plaintiff. 230. Professor Higgs considered that following the date of the plaintiff's injury on 11 October 2003, the significant dates in the chronology of events for analysis were as follows: (a) 9 January 2004 - this being the date of dynamisation of the fracture, some 3.2 months after the injury; (b) 9 February 2004 - this being the date of the removal of the external fixation device and manipulation under anaesthetic, some 4.3 months after the injury; (c) 25 February 2004 – this being the date on which radiographic evidence became available of a 20 degree anterior angulation of the right tibia fracture site, some 4.89 months after injury; (d) 11 August 2004 – this being the date of referral of the plaintiff to Dr O'Carrigan, some 10.9 months after injury. 231. Professor Higgs made no criticisms of the care received by the plaintiff before 25 February 2004. 232. Professor Higgs identified the relevant events up to that point being the dynamisation of the plaintiff's external fixator on 9 January 2004, which was 3.2 months post-injury. By that time, unfortunately, the plaintiff's tibia fracture had not progressed to a satisfactory union. This led to the fitting of a modification to the fixation device to incorporate a heel component to the structure in order to enable the plaintiff to begin to weight bear on his injured leg, so far as this could be tolerated. The object of this course was to promote bone healing. 233. Professor Higgs noted that on 9 February 2004 the plaintiff was admitted to Wollongong Hospital for removal of the fixation device. At that time there was no mention in the notes that the plaintiff had sustained a fall and had injured his right foot and leg 3 weeks earlier, as had been noted in the Shoalhaven physiotherapy notes. The stated reason for pin removal was an MRSA infection affecting the pin insertion sites. At the same time the right ankle was manipulated under anaesthetic to correct an equinus deformity that had developed. A plaster was applied and arrangements were made for a further x-ray to be taken on 25 February 2004. 234. Professor Higgs commented that the x-rays taken on 25 February 2004 showed a measurable anterior angulation at the fracture site, namely 20 degrees, indicating in his view that the angulation had significantly worsened from a previous measurement of 10 degrees. 235. Professor Higgs was critical of the care subsequently provided to the plaintiff between 25 February 2004 and 11 August 2004. In respect of this period Professor Higgs stated : "… Over the next 5.5 to 6 months radiographic reassessment was undertaken on five separate occasions, these being on 24/03/04, 23/04/04, 07/05/04, 09/07/04, and 05/08/04. My review of the radiographic evidence during this period of time, ie. During the period 24/03/04 to 05/08/04 inclusive, has caused me to be able to confirm that the anterior angulation at the fracture site persisted and remained measurably at 20º. It is evident also, during this period of time, that the previously (observed) uniting fibular fracture had also become associated with [approximately] 20º of anterior angulation. It is evident also that the x-rays taken during the period 24/03/04 to 05/08/04 did not demonstrate any evidence of any satisfactory fracture union of the tibia. It (is) permissible to describe the situation visualised radiographically on 05/08/04 as being associated with a state of tibial fracture non-union that was associated with 20º of anterior angulation deformity. The x-rays taken on 05/08/04 permit a conclusion that the fibular fracture has healed, albeit with [approximately] 20º of anterior angulation. Peterson's treatment on 25/02/04 included the application of a plaster of Paris cast. This cast was retained until its removal on 23/04/04. On or about 07/05/04 Peterson was advised to cease smoking and to commence partial weight-bearing on his right leg. On 11/06/04 Peterson was advised to progress to full weight-bearing [with the assistance of one crutch as tolerated]. My consideration of all of the evidence has caused me to form the conclusion that Peterson's treatment during the period 24/03/04 to 11/08/04 was not appropriate in the circumstances that were presented to Peterson's treating Orthopaedic Clinicians. I have formed the conclusion that Peterson should have been referred to Dr T O'Carrigan as early as 24/03/04 ." 236. Professor Higgs stated that the justification for referral to Dr O'Carrigan in March 2004 was because surgical intervention was indicated for delayed union and anterior angulation deformity of the tibia and of the fibula, and had a referral been arranged at that time, the surgical task would have been much easier for Dr O'Carrigan to perform than when he had to carry it out 10 months later on 25 January 2005. This was so because, as was observed by Dr O'Carrigan, by then both fractures had united by the time of his first surgical intervention. 237. Professor Higgs also drew attention to what he interpreted to be radiographic evidence of deteriorating bone quality in the plaintiff's right lower leg, which was evidenced by osteopenia, a condition of the bone caused by disuse, elsewhere described as disuse osteoporosis. Professor Higgs said this was so because it was probable that the plaintiff was suffering from gradually deteriorating soft tissues, these being the muscles of the right ankle, hind foot and forefoot. 238. The foregoing analysis led to Professor Higgs stating his opinions in the following terms: "… · I have also formed the opinion that, if Peterson had been referred to Dr T O'Carrigan in March 2004, he [Peterson] would probably have avoided the pain and suffering experienced during the period March 2004 to January 2005. It is also probable that if Peterson had been surgically treated by Dr O'Carrigan in March or April of 2004 then he probably would have avoided any need for surgical intervention of a nature that was performed by Dr O'Carrigan in August 2005 and in July 2006. · I have formed the conclusion that if Peterson had been seen by Dr O'Carrigan in March 2004 it would probably have only been necessary for Peterson to have undergone two further surgical procedures, ie. The application on an external fixation frame after osteotomy of the right fibula and the subsequent removal of the external fixation frame after it had been determined that fracture union had been achieved at the distal right tibia and fibula. · My consideration of all of the evidence has caused me to form the conclusion that appropriate treatment was unnecessarily delayed during the period 25/02/04 to 11/08/04 inclusive. My consideration of the documentary and radiographic evidence has caused me to conclude that the delay of appropriate treatment was approximately six months in duration (23.9 weeks). I have formed the conclusion that it was not appropriate to adopt what might be described by some as a wait and see management program. · There can be no doubt that Peterson suffered an extremely severe injury. I have reviewed the investigatory evidence and there is no doubt that Peterson did suffer a most complex injury to his distal right tibia and fibula. My review of the initial treatment has caused me to form the conclusion that Peterson benefited from a most skilful reduction of his fractures. I have formed the conclusion that there can be no doubt that the skilful nature of the treatment should have caused Peterson to have benefited from a significantly better outcome than has been the case. My review of the fracture position, as seen at x-ray evaluation, has caused me to form the conclusion that any treating Orthopaedic Surgeon would have expected Peterson to have benefited from a most satisfactory outcome. · It is my opinion that, but for, the angulatory complication and delayed tibial fracture union, and the inappropriate delay of further surgical intervention during the period 25/02/04 to 11/08/04, it is probable that a much better outcome could have been predicted. It is permissible to form the conclusion that had Peterson benefited from earlier surgical intervention (ie. in or about March 2004) it probably would have been the case that Peterson could have expected to have regained normal or near formal function of his right lower extremity ." Oral evidence of Professor Higgs 239. In his evidence in chief, Professor Higgs was asked to comment upon the factors considered relevant by Dr Elliott for delaying earlier surgery. 240. In this regard, he said that the previous history of MRSA infection, in isolation, was not a good reason for delaying surgery, noting that 1 in 4 people were carriers of the MRSA bacterium. He said that the plaintiff being a smoker was not a reason to defer the operation, as was evident in his candidature for the initial surgery. He also rejected the suggestion that not wanting to cause damage to the skin and soft tissues was a good reason for deferring surgery, as these types of fractures are fraught with circulatory problems, the distal tibia not being well served with vascularity, and soft tissue and circulatory problems are extremely common. Similarly, he rejected the notion that deferral of surgery in March 2004 was warranted on account of not wanting to cause any interruption to the blood supply to the area in question. He also rejected the notion that the operation was justifiably deferred on account of possible arthritis following trauma, in this regard he noted that the risk of post-traumatic degenerative arthritis was ever present following the initial injury. This was agreed as being incorrectly recorded in the transcript as "never present". Professor Higgs stated that the risk of post-traumatic osteoarthritis was an inevitable consequence of damage to the articular surface of the ankle joint. 241. Professor Higgs emphatically rejected the proposition that in March 2004 it was justifiable to wait for bone union to occur before arranging interventional surgery to correct an angulation and rotation deformity, stating that this had to be balanced against the consequences of what he termed to be unnecessary deferment of further intervention. Professor Higgs highlighted the fact that the effects of disuse osteoporosis is, in most cases, a worsening pathological entity, the relationship being exponential, not linear, meaning that the longer the delay the worse the problem becomes. 242. Professor Higgs gave some additional insight into the plaintiff's injury as follows: " Q. The prospect of the exponential changes of non-use osteoporosis, were they within reasonable contemplation of an orthopaedic surgeon acting reasonably at the time of the original operation? A. I apologise for not being able to answer that directly, because the initial injury suffered by Peterson was an extremely severe injury. They type of injury is known as a type-3 pylon injury, are generally accepted to have the worst results. However this - if they're treated skilfully in the initial phase and it's quite clear that whoever did this - the first operation achieved an extremely good result, I've seen the x-rays, the reduction one might say was almost anatomic, if not anatomic, and in that situation there's very good scientific evidence that people who benefit from that sort of result at the initial treatment phase can expect in broad terms a 50/50 chance of a full and normal recovery and there's - the evidence - the reference to that is the Journal of Bone and Joint Surgery, the American edition n 1968, Ovadis(?) or Ovudis(?), I can't spell the name, reviewed a number of these injuries and he found that the type-3 pylon injury treated well initially could expect at 50 per cent chance of an excellent result, then the worst treated in that group would probably only - the instance of complications was about ten - only about 10 per cent actually achieve good results. So in this group of fractures 10 to 50 per cent of patients can expect good or excellent results, and I think that in this case, having looked at the x-rays, the results of the initial surgery was so skilful that I would have predicted that this patient of all the patients should have expected the best possible result that was statistically available to them at that time ." 243. Professor Higgs was taken to the report of Professor Nade, which was relied upon by the defendant, on the issue of the anticipated outcome of injuries of the type sustained by the plaintiff. In this regard he gave the following evidence: " Q. At the bottom of page 9 Dr Nade says "Fractures such as those sustained by Mr Peterson are always difficult to treat and restoration of normal function does not occur even in the optimal situation." What do you say to that? A. The first part of his statement - his answer is correct. But I don't agree and I apologise, the reference I referred to is not - it's Ovadis O-V-A-D-I-S, the reference I've just referred to in the Journal of Bone and Joint Surgery does contradict that statement in that type-3 fractures can expect anywhere from a 10 to 50 percent good or excellent outcome, and the better the outcome is clearly associated with the excellence of the initial surgical treatment, and there's no doubt about that ." 244. In cross-examination, Professor Higgs elaborated upon what constituted a type 3 Pilon fracture of the kind suffered by the plaintiff. This was a high energy fracture that involved a severe degree of comminution and a large number of individual fragments that were required to be placed back into anatomical alignment. In this regard, he stated that it was well known that the more distal the fracture, then the potential for delayed union is more frequent, noting that there is always the potential for delayed union in any fracture. He also noted that in this instance, that risk was markedly reduced by the skill of the initial surgeon. 245. Professor Higgs took issue with the description of the bone being tubular at the point of the fracture, stating that at the area in question was cancellous or "solid cheesy bone" not tubular bone, as was the case with the fibula. Significantly, he explained that the fibula had healed by periosteal new bone formation around the tubular bone. His evidence was a follows: " A. No. The thing that really hasn't been discussed here, this - I've heard the tibia referred to as a "tubular bone", the site of this fracture, the bone is not tubular. It's cancellous bone, it's solid cheesy-bone. There is no tube here. And there is a great difference between the union of cancellous bone and tubular bone; the fibula being a small tubular bone, heals by periosteal new bone formation, a sleeve of new bone forms around the outside. At this site in the tibia, you've got cancellous bone union, and the one thing that's peculiar to cancellous bone is that new bone with cancellous bone union cannot jump gaps, whereas periosteal new bone can bridge gaps. Cancellous bones does not bridge gaps, there has to be close boney(?) apposition between fracture fragments, and the x-rays that I have seen have caused me to form a conclusion that most, if not all, of the fracture fragments of the distal tibia were in close approximation, and therefore, the potential for union was probably at its best, in spite of there always being a risk of avascularity in fractures at this site because this part of the tibia is poorly supplied with arterial circulation. So the initial fracture treatment had, to my way of thinking, introduced an environment that was extremely conducive to good bone union. There was good apposition of fragments. Whether or not there were screws in, or not, wouldn't have mattered. I mean, in this case, the screws did augment the position. But I'm talking about the actual pathophysiology of the union, notwithstanding any metal fixation ." 246. Professor Higgs also took issue with the idea that mobilisation was the appropriate form of encouragement of healing by putting pressure through the joint surfaces to promote bone union. He said that this process applied to the tubular bone of the fibula, but not to the tibia because cancellous bone required internal fixation. In this regard, he explained that contact or apposition of cancellous bone was primarily important for tibial healing. He confirmed that load bearing, rather than weight bearing, contributed to the potential for bone unity and growth in this regard. 247. Professor Higgs agreed that the process of interpreting x-rays involved the potential for a range of differing interpretations of the same radiology. He also agreed that it was the obligation of an orthopaedic surgeon ordering radiology to personally inspect the films irrespective of what the radiologist reported. 248. An issue arose as to the actual measurements by Professor Higgs of angulation as shown on the films because of differences in viewing the scans on a computer screen or as hard copies on a light box background. In this regard he stated that he had reviewed both versions, and gave evidence on his findings as follows: " Q. Where you measured angulation in this case, I'm looking at page 4 of your report, second main paragraph, you referred to measurement of 20 degrees, was that on film or on screen? A. I've measured the angles on the hard copies. If we had an x-ray screen here we could put them all up, and the angulation of 20 degrees, following that manipulative period which, I think was about twelve days after the removal of the fixation device - I shouldn't be held too accurately on the time span, but I think it was about twelve days - if you look at all the x-rays from then on, every x-ray measures at 20 degrees, except for one, which measures at 17, and I think that may be the rotational artefact(?) I can't be sure, but certainly the x-rays before and after all measured 20 degrees. I think one measured 21. I've got them all written here. " 249. The absence of the x-rays from the evidence in the proceedings added to the difficulty of resolving the conflicting opinions on those x-rays. 250. On the question of his interpretation of the x-rays, the evidence of Professor Higgs was as follows: " Q. Your interpretation of the x-rays that you saw was that the right tibia had, I think you put it, at best only partially united? A. Well I've heard a lot of discussion about fracture union and we've heard people talk about non union on the one hand and delayed union on the other hand. It's not quite as black and white as that. The fibula in this case did progress in a - in a normal sense towards union but clearly didn't progress to solid union because even the fibula angulated after them - after about 4 or 5 months. So even the fibula which seemed to be uniting at best did not become solidly united. The tibia I've carefully inspected all of the x-rays with a magnifying glass. The only area that I think could possibly have been united by bone or callus should we say was not on the medial aspect was a little spike on the lateral aspect of the tibial fracture surface. That could have - that appearance of union or progressing union could have been an artefact because there was in fact a spike configuration to that fracture which on various x-rays did overlap the proximal fragment and could have led to the appearance of increased density and some process of union occurring. I have come to the conclusion I've not had the benefit of Dr O'Carrigan's observation, but I've come to the conclusion at best the tibial fracture the union was fibrous union. I'm not even sure that Dr O'Carrigan visualised the actual status of the union because he - he used a Gigli-saw to undertake what's been described as an osteotomy and that does not necessarily require the fracture site to be thoroughly inspected unlike if you're using a saw or an osteotome then you do have a very direct visualisation of the osteotomy that you create. Q. Doctor if we accept that Dr O'Carrigan performed an osteotomy that means he cut the bone, correct? A. Well we're using the term osteotomy a very loose sense. I - I don't know what Dr O'Carrigan saw, I can't comment on what Dr O'Carrigan saw. He used the term osteotomy. It's like saying, you know, all west Indians are negroes. Q. So in order to get to the bottom - if we accept osteotomy means we're cutting the bone, if there's some difference to that we'd have to have Dr O'Carrigan come and tell us about it, is that what you're saying? A. I don't think so. I quite honestly I think, you know, that's further expense that probably the court should avoid. The x-rays clearly demonstrate the fracture was not completely united. There's no doubt about it ." 251. Professor Higgs disagreed with the proposition that if Dr O'Carrigan stated he cut through the tibia and the fibula, that this suggested that he had cut through healed bone. On the issue of whether the x-rays showed partial union, non-union or delayed union Professor Higgs stated : " Q. When you say at best partially united you're not suggesting this is a non union it's a delayed union isn't it? A. It certainly - well it has to be a delayed union in the sense that, I mean, I have said that I don't think any of it was united by bone. So I'm saying my look at the x-ray tells me that fracture has not united with bone. The bone - the surfaces of the fracture site were sclerotic which is a good indicator that a process of non union has occurred. Now stability at the fracture site to a degree can occur with fibrous union but fibrous union's not bone union. Q. The most important thing to achieve in fractures such as those suffered by Mr Peterson is bone union isn't it? A. Bone union is in an acceptable position. Q. The most important thing to achieve first and foremost is bone union, correct? A. Bone union in an acceptable position ." 252. Professor Higgs stated that whilst he was able from the x-rays to identify the formation of callus on the fibula, he was not able to confirm that this was the case with the tibial fracture. When the evidence of Professor Higgs was explored on this issue, he said he has looked at the x-rays and remains unconvinced as to the presence of tibial callus. In this regard his evidence was ; " Q. And if other people have a different view you'd say that's within the variance that happens when people look at x-rays? A. Yes because I've said that the site rotation of the x-rays can allow spikes to overlap and give an appearance of increased density which may be interpreted by some to be evidence of bone union. But we've heard that there was sclerosis and I've seen the sclerosis of the fracture site and that's clearly evidence of non union ." 253. Professor Higgs rejected the proposition that it would have been reasonable to wait longer than 4 or 5 months to see if union of the plaintiff's fracture could take place. In this regard he adhered to his view that on the occasion of the removal of the fixator, consideration should have been given to further intervention. 254. Professor Higgs agreed that if Dr Elliott had given consideration to moving towards an open procedure, either with or without a bone graft, in February/March 2004, he would have been expected to have regard to the whole of the plaintiff's presentation and circumstances rather than individual aspects in a risk analysis. In this regard he confirmed his earlier evidence in which he covered the relative importance of individual factors requiring consideration and weighing in the planning of care options. He agreed it was important to weigh all the risk factors. 255. The cross-examiner sought to explore the opinion of Professor Higgs as to the time frame for his criticisms of Dr Elliott's argued failure to intervene surgically: " Q. If Dr Elliott undertook that exercise as at February/March without the benefit of hindsight looking forward and came to the view that he was not prepared to operate at that point but would wait to see if bone union occurred you wouldn't criticise him would you? A. For not operating in March, no but then you go through the same - did he go through the same stage in April, May then June then July and then August and then he referred the patient to a tertiary centre and it was a further 2 or 3 months, I can't remember exact chronological situation then before the patient eventually had the definitive treatment that was provided by Dr O'Carrigan. I mean it's a question of how long one can keep putting off the decision. Q. If there had been further evidence of bone formation and callus in the tibia and the fibula through May you agree it's reasonable to wait? A. If there had been but there hadn't. If-- Q. Doctor - sorry? A. I mean in the alternative there in fact was evidence of deteriorating - of a deteriorating situation. Q. If Dr Elliot on viewing the x-rays himself came to the view that there was progression towards unity in May you'd agree it was reasonable for him to wait? A. Can I beg the question by saying I don't know whether he did view the x-rays. I haven't seen any evidence that would lead me to conclude that he had. Q. Just make the assumption for me? A. But if he - assume that if he had then I think by about April he would have or should have been thinking that - of some other option, treatment option. Q. Assume he viewed the x-rays and formed the view that there was bone growth occurring you'd agree it was reasonable to continue to wait? A. If there was bone growth occurring then it would have been reasonable to wait but there wasn't. Q. If shortly prior to August he formed the view that the patient had taken a step backwards and there had been a crack across callus that had been growing you'd agree that he must act? A. We're hypothesising still aren't we? Q. Yes assume that for me? A. Yeah - yes. Q. You certainly don't criticise him for referring to an expert in the field such as Dr O'Carrigan do you? A. No I certainly don't ." 256. The cross-examiner also sought to explore the opinion of Professor Higgs as to what might have occurred if the suggested surgery had been carried out in an earlier time frame: " Q. If it were that internal fixation, with or without bone graft, had been undertaken shortly after March 2004, it would have been necessary to freshen the bone ends? A. Yes. Q. It would have been necessary to cut through and remove any bone growth that had taken place? A. And fibrous tissue. Q. And following that removal - sorry withdraw that. Following that surgery, there still would have been a risk that Mr Peterson could have, continued to delayed union, correct? A. Yes. Q. And if someone took that risk into account in whether or not they perform surgery, that's something that you would regard as good practice? A. There was already delayed union. Q. Yes but do you agree that it was good practice to consider the risk of further surgery? A. Yes I do ." 257. Professor Higgs was asked to assist with some interpretation of medical manuscript in the notes at Exhibit "F" page 21: " Q. Looking at page 21 of these notes where it says, "Some callus tibia", is that an observation with which you agree? A. Well this is the observation that I'm disputing because I mean I have very, very carefully reviewed these x-rays and it's a pity that we can't just put them all up along an x-ray screen here because I truly can't be sure that there is any evidence of any new bone formation at the tibial fracture site. There are certainly, tubular callus at the fibular, which is as I've said earlier is periosteal bones - a sleeve of bone that forms with tubular bone healing. But as I've said before, this is cancellous bone in the tibia, you need close apposition. You do not see callus where there is cancellous bone uniting. Q. Could you then look at the same notes at pages 21 and 22 where there's an entry by the Orthopaedic Registrar on 23 April 04, and it's written there, "x-ray - not fully healed", and then over the page is a plan, review in two weeks. Do you regard the term or description, "X-ray - not fully healed", as a reasonable description of the scan at that time? A. I think that's a rather optimistic description. I would've said - 23 March, I reviewed the x-rays, 24 March, and the tibia I wouldn't have said there was any convincing - I certainly wouldn't have put any money on it. Q. There then doesn't appear to be any note until 7 May. At page 22 it says, "Progress x-ray, slow progress of bone union". Is that an observation with which you agree? A. I think, we're now into May so we're five - say in round figures - we're seven months into the history here and I think that's again, a very optimistic descriptive of the situation. Q. One of the things I have to decide is whether there was reasonable practice on the part of the defendants, so I'm concerned to have a proper understanding of page-- A. Well I-- Q. 29 of the notes, if you could turn to that for me? A. 29. Q. There's an entry by the Orthopaedic Registrar for 11 June 04, could you read that and tell me what you think it means? A. "X-ray" - is the Orthopaedic Registrar on 11 June 2004 - "X-ray today - lat", that's for lateral, "view suggests minor collapse posteriorly with better bone compaction/alignment. AP(?) good position maintained." 11 June, well again the x-rays on 7 May and again on 9 July demonstrated the 20 degree angulation - the one on 7 May was the one that I measured at 17 degrees which is possibly disassociated with the rotation of the x-ray view. I would say that both of the x-rays in May and July of 2004, demonstrated 20 degrees of anterior angulation. I'm not going to comment on rotation because the x-rays did not include - not all the x-rays included the joint above and the joint below - which you need for rotatory assessment. "Minor collapse posteriorly." I can't say that that was obvious to myself, and one might read into that a number of conclusions which are not necessarily scientifically nor legally sustainable. I mean, "Minor collapse posteriorly", suggests to me there is nothing there, which would fit in with a non union, but would just as well fit in with the fact that the distal fragment had angulated anteriorly. Which would logically have produced a slight gap at the back. Other than that I really, it's very difficult to comment on what the author really means there. Q. In any event, the plan was to review in one week with another x-ray, was that a reasonable-- A. One month. Q. One month - was that a reasonable thing to do? A. Well you see we're already now easy - we're now six, ten months into the piece here and we expect this fracture to unit at four months - particularly in view of the way it was initially treated - and we're still at ten months, suggesting we might just x-ray in another month, we're not actually doing anything active, we're saying let's wait another month. And then if we do wait another month, we're up to nine months into the piece. So we're already at least seven months over and above the expected date of union of this fracture. And I have a view that all these decisions were made by persons other than Mr Elliott, because Mr Elliott's name does not appear in any of these notations. And it's generally the practice in hospital fracture clinics, that any notation made, for example by an Orthopaedic Registrar, would also include, "S/B Higgs", - seen by Higgs or, which would-- Q. Understand, or D/W(?)? A. Yeah. Q. Well what view then do you have of the appropriateness, if any, of that decision to review in one month, at that time? A. I don't think it's appropriate. Q. When the review took place a month later - on the same page, 22 - there's a note, "9 July 2009, x-ray today", it reads, "healing", and then there's a word crossed out, it looks like, "progressing", but I can't be sure. But how do you interpret that note including? A. Well I, your Honour I've looked at that x-ray too, I mean the x-ray on 9 July was a 20 degree angulation and I don't see any great evidence of union. Dr Nade - I may refer, 9 June - Dr Nade doesn't actually refer to that x-ray. Q. The person who looked at it on this day-- A. On 9 July he refers to it. Sorry. And he, Dr Nade clearly says, his last sentence, "the fracture line is visible." My own notation, having reviewed those x-rays, or my own personal notes, was, I've written here, "no good evidence of union sclerotic AP" that's anthro(?)posterior, "alignment okay" and the third view is of no value because it's an oblique view. So that x-ray there, I've made notations that in fifty years time would cause me to conclude that this fracture was non-united. Sclerosis and non-union. And no evidence of union. Q. So then what view if any would you have of the notation that says "fracture healing"? A. Well, certainly you could say that a little about the fibula fracture, I mean there was evidence of healing there, but again, as I've said so many times, I've not seen any evidence that the tibia united other than at best in one small area, which may have been an artefact. I say there's clear evidence, if this was my patient, I would have formed the conclusion this fracture had not united. Q. In any event, the author of this note has written "for Dr Elliott's opinion on next visit", I take it-- A. That again is an unnecessary delay. In my view. I mean, when was Dr Elliott's next visit? Q. Dr Elliott appears to have seen the man in his rooms on 5 August after that? A. Well then we've left another month, 9 July to 5 August. And it was then that Dr Elliott, I think then, that he determined that this patient needed to go to a tertiary referral centre and that was represented by Dr O'Carrigan. Q. I think the evidence shows that Dr Elliott booked the patient in for an operation himself, and then on 11 August, instead referred him to Dr O'Carrigan? A. I can't resist referring then to your learned colleague, in as I was trying to point out earlier, that with all the risk factors associated with surgical intervention, then, you have now confirmed, for me, that in July or August even Dr Elliott himself must have considered on the balance of considering all these risks, this must now have been worse than they were in March, that an operation was, to use the term, "safe to undertake". I'm sorry, I can only conclude that the delay has been unnecessary and that all the risk factors, though they were there were still present in August as they were there in March, and in August the balance was that surgery was indicated, and I can't see why that debate was not undertaken in March or April of the year ." 258. The plaintiff's case on breach of duty of care was dependent upon the premises within the foregoing evidence. Expert evidence – defendants' case 259. Two experts were called in the case for the defendants, namely, Dr Donaldson and Professor Nade. Dr Wayne Donaldson – consultant orthopaedic surgeon 260. The defendants tendered a report dated 17 October 2008 from Dr Wayne Donaldson, a consultant orthopaedic surgeon. Dr Donaldson also gave oral evidence. Report of Dr Donaldson 261. Dr Donaldson reviewed the clinical records and the history of reviewed x-rays as recorded in the clinical notes. He noted the plaintiff had stumbled and fallen onto his right leg on 19 January 2004, causing pain to his right foot and ankle. This matter was not pursued by either party in the oral evidence of Dr Donaldson. 262. Dr Donaldson then reviewed the subsequent history of fixator removal and the post-removal x-ray reports to the time of referral of the plaintiff to Dr O'Carrigan, including the procedures carried out by Dr O'Carrigan. 263. Dr Donaldson provided his opinion that the plaintiff had been treated appropriately and in the manner he would have treated him. 264. Dr Donaldson noted that union of the fracture had become delayed. 265. Significantly, in this context, Dr Donaldson considered that the plaintiff's fall whilst he stumbled using crutches may have caused a loosening of the fracture components and he made a connection between that and the subsequent pin track infection in which he postulated a risk of deformity occurring due to loosening of the pins due to infection. This aspect of the opinion of Dr Donaldson was not challenged by the plaintiff. 266. Dr Donaldson was of the opinion that the fractures were treated appropriately and given time to heal. He considered that given the evidence of failure to progress to union, the plaintiff was appropriately referred to Dr O'Carrigan. He considered that other orthopaedic surgeons "might have attempted to 'soldier on' and see if they could effect further improvement by surgical intervention themselves but Dr Elliott prudently decided not to". 267. Dr Donaldson considered that the delay in referral and subsequent treatment by Dr O'Carrigan was not deleterious in effect because "in all likelihood he would still have required three operations that had to be performed by Dr O'Carrigan". 268. Dr Donaldson considered that the plaintiff's disabilities are the consequence of fracture disease. This was later defined in his oral evidence to mean joint stiffening due to immobilisation. He stated that in his view there was no evidence of a want of care on the part of the hospital or Dr Elliott in the treatment of the plaintiff. He stated that they "provided reasonable and competent care consistent with standard practice of their peers Australia-wide but the nature of the injury he suffered was why the fracture took so long as it did to unite". 269. Dr Donaldson disagreed with the opinion of Dr Bornstein that there had been inordinate delay before deciding to proceed with more active treatment in the face of argued non-union. 270. Dr Donaldson's report conceded that the series of x-rays show the fracture was not proceeding to union, but he added it was necessary to allow time for the fracture to unite. He stated that the slowness of the fracture to heal made no difference to the eventual outcome, including the treatment by Dr O'Carrigan. 271. Dr Donaldson stated that the use of electromagnetism as argued on behalf of the plaintiff as a treatment was still under evaluation as a treatment for delayed union, it was expensive, required constant vigilance and a compliant patient, and it did not assist in achieving union in every case of non-union. 272. Dr Donaldson stated that to proceed to internal fixation with or without bone grafting, without allowing for the natural process of repair over time, indicated an aggressive approach which should apply where fracture misalignment indicates inherent instability due to failure to achieve union. 273. He pointed out that: " others … may have even attempted more extensive internal fixation of the fracture but that would involve extensive open surgery in a leg to breakdown and greatly increase the risk of infection and possibly cause further joint stiffness and loss of function once fracture union had occurred ." Oral evidence of Dr Donaldson 274. In his oral evidence Dr Donaldson dealt with a number of issues that were raised in the evidence of the experts called by the plaintiff. 275. Dr Donaldson stated that if the angulation had increased over time following the removal of the fixation device, this would have been of significance to the decision on whether or not to intervene surgically. He also stated that risk of osteomyelitis from an MRSA infection posed a significant risk to wound infection and was a matter of some significance to the decision on whether or not to operate, the relevant consideration being to prolong the timing of surgery from the timing of pin removal to minimise the risk of such infection occurring. 276. Dr Donaldson defended Dr Elliott's decision not to intervene surgically and instead allowing time to pass in the hope of progression to union by invoking the maxim primum non nocere, or first do no harm. 277. Dr Donaldson considered that Dr Elliott had acted beyond the call of his contractual obligations to provide consultative services to the hospital and to the plaintiff. 278. Dr Donaldson defended the decisions to allow the plaintiff's fractures to go on to union up until July 2004, stating that he would have done exactly the same as Dr Elliott because: " Q. Was a decision to allow the fractures the chance to go on to union after that date and up to July reasonable practice? A. In my view I would have done exactly the same ." 279. Dr Donaldson addressed the issue of the likely consequence of an earlier intervention to that undertaken by Dr O'Carrigan by stating that an operation in March, April or May or June "may have still got a non-union out of … attempts to correct everything". He explained this by reference to the potential interference to the blood supply as a result of surgery and other risks of surgery as follows: " Q. What, if any, were the risks of proceeding with surgery to fix with or without bone grafting as at March/April 2004? A. One of the risks is non union. Another risk is wound breakdown because of tethering of the skin. Another risk is making fragments of bone even more avascular. It's a basic principle that if there's no blood there is no bone, in other words no union. So the more stripping off of soft tissues around the fracture site you're compromising what you hope will bring the blood into repair it. So if you open it up that's what you in fact do. By putting bone graft in you have to - you're using that to fill up the hole to bridge from one fragment to another and that involves stripping off the soft tissue so you can get it in there. Other factors are you've got the risk of damaging nerves, tendons, all of these things are to be considered ." 280. Dr Donaldson did not consider that smoking was necessarily a contra-indication for surgery. He said that was really not the issue as it was the consequences to healing that smoking posed that was said to be influential on the decision when weighing whether or not to operate having regard to the possible consequences. In this regard he stated that the primary consideration was to get the bones to heal, the issue of possible joint stiffness being the result seemed to be a lesser consideration in that one had to "let nature run its course". 281. In cross-examination Dr Donaldson confirmed that his review of the plaintiff's x-rays was in the format of a CD. He confirmed that from his review of the very first x-ray in the series to the last image, the impression he gained was that the fracture was not proceeding to union. He went on to qualify this by stating that there were different states of union, including fibrous union where movement between the bones was possible, and opaque callus which was at the other end of the range. In this context he said "union means different things at different times". He said of his reviews of the x-rays in the context of the reviews at the fracture clinic that the fracture did not ever go on to solid bone union: " WITNESS: In the narrative of the attendances at the fracture clinics there are comments made on "appears to be uniting". In my opinion looking at the x-rays there were evidence of changes towards union, in other words some new bone forming but it didn't get to solid union. That's what I meant by those words ." 282. Dr Donaldson agreed with the cross-examiner that a bone could have the appearance of union when it was in fibrous union although in fact it isn't bony union. This was of some importance to the interpretation of the statements made by Dr O'Carrigan in his correspondence concerning apparent union. In this regard Dr Donaldson said that the cardinal sign of non-union was movement at the fracture site. 283. In his defence of Dr Elliott not intervening surgically at an earlier time Dr Donaldson gave the following evidence: " Q. Now wouldn't you agree with me, that at the time that you have the increased angulation and the instability at the fracture site, on your own view of things, that is a time to intervene surgically? A. In this case, no, because you forget that the pins had to be taken out at a stage when the fracture was not united. It had to be taken out because of a risk of getting osteomyelitis in the wound - to get rid of the infection you have to remove the pins, so you became from a stable to an unstable situation. And then with weight bearing it's inevitable that the fracture hasn't healed, you have the potential for deformity. Then if that deformity becomes too great, then you may have to weigh up the risks involved to correct that deformity. And the first thing you want to do is to get it to unit before you embark upon trying to get it realigned and united. Q. Can I suggest to you Dr when you saw a worsening of the situation due to the angular deformity demonstrating lack of stability between the two fractured ends of the tibia, that you had the kind of malalignment that ought to lead to surgical intervention? A. It would've been on the agenda to correct that deformity if possible at any time thereafter, but as the deformity was not increasing from the time it became apparent at 20 degrees till later, I would have not have been inclined to step in to try to correct the deformity, and at the same time have an unstable situation with a non union. I would've waited till the union was obviously not going to become rigid, and then do something about that, and if possible, correct the malalignment at the same time. Q. Doctor there had already been a worsening of the situation, from 10 degrees to 20 degrees? A. But I would not in that scenario, have stepped in in view of the recent infection. Q. So that is your reason for not wanting to act at this stage? A. Plus the fact that I think the fracture still had time to go on to unite ." 284. Dr Donaldson did not seem particularly concerned about the issue of joint stiffening or fracture disease as a relevant factor to be weighed in favour of an earlier surgical intervention: " Q. In the top paragraph you say, "As occurs when a fracture doesn't heal, nearby joints stiffen", you see that? A. Yes. Q. Would you agree that the risk of joints stiffening is minimised if delay is - if delay in taking definitive action to repair - is minimised? A. So-called fracture disease - to give it it's scientific term - one of the things that happens is that joints nearby to the fracture stiffen, and if you can get them moving quicker, all the better. But where you have - and that may have been one of the reasons why an external fixator was applied - to allow some movement at the joint. Q. Doctor can I ask you about fracture disease. You say, and the second to last paragraph on that page, "Undoubtedly Mr Peterson will have residual disabilities long after his fracture eventually united, but this is the consequence of fracture disease." You agree with me don't you that the tarsal bones were not injured in the initial accident, were they? A. They were not injured then and they are not injured now. Q. I ask you to assume that there is evidence that they are injured now? A. I believe there is evidence that they suffered transient disuse osteoporosis. If you understand the science of that, is that with use the calcium that has leached out while it has not been needed, comes back into the bone in response to stressors of weight bearing. Q. The longer that it is not used, the greater is the problem with that disuse osteoporosis? A. And then it is fully correctable on weight bearing. It is not a long term problem, it's a transient, radiological appearance ." 285. Dr Donaldson rejected the proposition that concerns over possible effects to the blood supply of the affected area and possible damage to skin and soft tissues were good reasons to defer operating. In this context he said; " Q. So that is not a reason for not intervening at the end of March? A. One doesn't make a decision to operate on the negatives. One makes a decision to operate on what you think you can achieve ." 286. Neither party sought to explore with Dr Donaldson the significance to healing and progress to union of the plaintiff's fall on 19 January 2004, this being 97 days or nearly 14 weeks after the application of the external fixator, and 3 weeks before the removal of the device due to MRSA infection. Professor Sydney Nade – consultant orthopaedic surgeon 287. The defendant tendered a report dated 25 February 2008 from Professor Sydney Nade, a consultant orthopaedic surgeon. Professor Nade also gave oral evidence. Report of Professor Nade 288. Professor Nade did not examine the plaintiff but conducted a review of relevant reports and x-ray films. Professor Nade reviewed the chronology of events extracted from the hospital notes as well as viewing a numerous series of films comprising imaging studies that spanned the period 11 October 2003 to 5 August 2004. He set out his interpretation of these films and on the basis of his evaluation of the hospital notes he concluded that at the time the plaintiff was provided with services by the hospital, the hospital staff had acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. 289. In arriving at that view Professor Nade commented on the 25 February 2004 x-ray film which showed some angulation of the fracture site following removal of the external fixator, which to him indicated that fracture healing had not occurred. He commented that the 24 March 2004 x-ray images were taken with the plaintiff's leg in a plaster cast. He considered that the cast obscured any evidence of bone callus formation. 290. Professor Nade commented on the 23 April 2004 report of the x-rays as showing anterior angulation of the fibula of between 22 and 24 degrees. He commented on the 7 May 2004 films as showing the fibula to be showing signs of uniting with an anterior angulation of about 24 degrees. He was unable to determine whether there was any progress in healing of the tibia, the fracture line still being visible. He made the same interpretation of the x-rays taken on 9 July 2004. 291. Professor Nade commented on the final x-rays in the series as showing apparent union of the fibula with 24 degrees anterior angulation, with the fracture line in the tibia still being visible. He stated that he could not tell whether there was any bone callus, although there may have been some slight increase in radio-density. 292. Professor Nade drew attention to the reports by Dr O'Carrigan to the effect that at the time of the surgery he carried out on the plaintiff on 24 January 2005, the fractures at the distal end of the plaintiff's right leg "appeared to have united". Professor Nade made the interpretation that on that date, Dr O'Carrigan "re-created fractures of the tibia and fibula by osteotomy". 293. In the remainder of his report, Professor Nade restricted his comments to addressing three allegations of negligence made by the plaintiff against the hospital. These were an alleged failure to make a proper and timely response to evidence of non-union, alleged failure to treat the plaintiff with a bone graft (sic for growth) stimulator when non-union was known to have occurred, and alleged failure to intervene and perform an internal fixation with or without a bone graft when non-union was known to exist or ought to have been apparent. 294. Professor Nade set out his reason for refuting these allegations that the plaintiff had levelled at the hospital. 295. As to the first allegation, Professor Nade stated that as at 25 February 2004, in his opinion, a state of non-union, or bone-to-bone continuity, had not been demonstrated, although he acknowledged that progress to union had been delayed. He stated that the images that he saw did not show the characteristics of non-union. He considered that at 4 months post-injury, this sate of the fracture was within a time frame that orthopaedic surgeons would have accepted. 296. As to the second allegation, Professor Nade stated that in his opinion a state on non-union did not exist. He also said that in any event, many orthopaedic surgeons had no faith in claims made for externally applied bone growth stimulators. He refuted the need for such a device to be employed in this instance. 297. As to the third allegation, Professor Nade stated that the configuration of the comminuted fracture involving the lower end of the plaintiff's right tibia adjacent to the ankle joint was such that it would have been difficult if not impossible to perform internal fixation. In support of that proposition he stated that the initial treatment of the fracture using an external fixator was the appropriate way to manage the fracture. Professor Nade stated that the hospital staff were aware of the slowness of the plaintiff's fracture to heal, and took appropriate steps to accelerate this. The reasons behind that view were not articulated in the report. 298. Professor Nade added that fractures such as those sustained by the plaintiff were always difficult to treat. He stated that restoration of normal function does not occur even in the optimal situation. In this regard, Professor Nade took a contradictory view to that taken by Professor Higgs, who referred to Ovadis literature. Oral evidence of Professor Nade 299. The oral evidence of Professor Nade revealed a number of relevant perspectives. 300. Professor Nade pointed out that it was incorrect to say that the plaintiff would have been spared a number of the surgical procedures he has in fact undergone if he had been referred for surgery at an earlier time. In this regard, he identified the fact that the number of the procedures performed following the union of the fracture were for the correction of an angular deformity of a united fracture, and were not aimed at securing fracture healing. This is a mater of some significance. 301. Professor Nade rejected the notion that Dr Elliott should have recommended an internal fixation procedure with or without bone graft at or about February / March 2004. He did so in the following terms: " Q. You understand that it is alleged that Dr Elliott should have recommended an internal fixation with or without bone graft at or about February/March 2004? A. I'm aware that that's alleged. Q. What do you say about whether or not Dr Elliott should have performed that procedure shortly after February or March? A. I think it would have been incredibly difficult to do because of the comminuted nature of the distal end of the tibia. Internal fixation means putting in some sort of mechanical device to hold the bone fragments in place. You have to be able to make sure their mechanically secured and locked in. There was nothing for the screws to hold in the distal tibia ." 302. In his oral evidence, Professor Nade reiterated that the plaintiff's ankle was never going to be normal again because of the nature of the comminution of the fracture involving the ankle joint. He stated that the ankle had become destroyed by this injury and was never going to be normal again, noting that once the articular surface had been damaged it was inevitable from the very first day that osteoarthritis would occur. Professor Nade stated that the plaintiff's problems were not due to bone position, but were due to lack of movement in the ankle, and he would always have restricted movement of the ankle. The basis of that view was his knowledge and experience of over 40 years treating adult fractures, which indicated to him that recovery from such injuries is never 100 per cent. 303. Professor Nade also drew attention to the fact that by February 2004 there had been a relevant change in the consideration of the fracture, as is apparent from the following extract from his evidence in chief: "… By 25 February 2004 there was a change in the alignment of the bone, that is to say that the fracture was still mobile at that time, it had not united and the other factor is that a manipulation of the limb had been done. The external frame had been removed and a plaster cast had been put on. So I think that's when the angular deformity occurred and it mimicked the angular deformity that was present at the time of the injury because that was the least stable position of the bones as they had been determined by the direction of forces that caused the fracture ." 304. Professor Nade pointed out that the decision on whether or not to intervene by internally fixing and/or grafting the fracture after the 25 February 2004 x-ray involved the judgment decision that required experience in knowing how to be able to deal with this type of injury. He did so in the following terms: " Q. Why? A. Because it was roughly 4 months following a major injury to the bone. The possibility of union was still there without interfering. Once you start to open this up and fiddle with it you may run into all sorts of problems in relation to bone healing, bone blood supply, pain, infection. It's a judgment decision ." 305. Professor Nade also identified non-union to be a definite situation which meant that a fractured bone would not go on to union at all, as distinct from the delayed union, which meant that the healing process was going on but was slower than might normally be expected. 306. Professor Nade stated that he considered the factors weighed by Dr Elliott in deciding not to pursue early surgical intervention, namely, the presence of an MRSA infection in late January 2004, concerns over disruption to blood supply affecting healing, the fact that the plaintiff had been a smoker and the like, did not attract criticism. In this regard his evidence was: " Q. Do you have a view about the decision he came to not to intervene at that time? A. I saw nothing wrong with that. If you ask a room full of orthopaedic surgeons for opinion about any case you'll get a room full of different opinions. So it - there is a spectrum of opinions. Some people are more aggressive than others in the way they manage the case and I think experiences is very helpful then in determining what you do and you take into account all of those things that you have mentioned ." 307. Significantly, in drawing attention to the limits of radiological analysis, Professor Nade pointed out that in making clinical decisions as to treatment options, clinical examination is often more important than a radiographic image. This was because in the case of a fracture of the tibia and fibula, he could not make an opinion on what was going on with the tibia because it was not an easy area to image, as one bone overrode the other. I have assumed that this comment related to some particular images he had in mind, however I cannot take this analysis further, as the x-ray images had not been tendered, so that view was to a degree, opaque to analysis. 308. As with the other expert witnesses, much of the questioning of Professor Nade was taken up with whether or not the plaintiff's tibial fracture was proceeding to union, as the following extract reveals: "Q . I'm sorry, let me put it this way. You can't say one way or another whether the fractures had united, you would not be critical would you of other orthopaedic surgeons in this case who've reviewed the x-rays and formed the opinion that the fractures had not united ." 309. Professor Nade was asked questions about the healing time for tibial fractures and confirmed that 4 months from the time of injury was the minimum period by which union would be anticipated to occur. He also drew attention to the fact that in February 2004 the plaintiff's fracture had moved, indicating it had not been united. When pressed over the significance of the 4 month period Professor Nade gave the following evidence: " Q. So there is some importance to four months isn't there-- A. No I don't understand your question, I'm sorry. I've said to you that non union is a state from which union will not occur in the future. It is a fixed, finite point. This man at four months was still in a process of healing going on, and the evidence for that was that the fact that the fracture moved at that time. Non union and delayed union, are two completely different conditions. Q. Doctor-- A. Whereas delayed union can either become non union or it can go onto union-- Q. Doctor-- A. Let's get the terminology straight. Q. I just want to take you to your report, because in your report you say that the only definitive time that union could be declared incomplete, was 9 February 2004. That's what you said, isn't it? A. Yes. Q. But then you say, "I would not consider that to be a state of non union as it was only four months after the injury occurred"? A. Yes. Q. That period is within the timeframe accepted by orthopaedic surgeons, as the healing process to be progressing. Isn't that right? A. That's what the report says. You have to ask me your question what you mean, however. Q. I'm just trying to understand what you have written here? A. Well I'll tell you what I have written. I'm saying that you would, at four months it is not a definite time period when they say, all fractures have to be united at four months. What I'm saying is that here is a fracture which is healing, it's going through the process of healing and at four months, if it hasn't healed at four months, that's fine - just let it go, let the healing process continue at four months, I wouldn't be fussed about it, I wouldn't interfere ." 310. In responding to textbook citations concerning the average time for union of fractures of the tibial shaft when treated conservatively, being 16 weeks, Professor Nade correctly pointed out that the plaintiff's injury was not a fracture of the tibial shaft. Instead, he identified it to be a comminuted fracture of the distal end of the tibia involving the ankle joint. It appeared that the significance of this difference was that such fractures take longer to heal because of the lesser blood supply to that area, which in turn influences the rate of healing. 311. This evidence led to a long discussion on the significance of the facture being comminuted, because the cross-examiner was at pains to repeatedly draw attention to a fracture line, whereas Professor Nade was at pains to point out the matter was not so simply analysed radiographically because of the comminuted nature of the fracture involving multiple fragments that were at different stages of healing, and only gave the radiographic appearance of a fracture line in a 2-dimensional medium. That discussion started as follows: " Q. Dr Nade I just want to be clear. You say that radiological indicia of non union includes a visible fracture line? A. There are two forms of non union usually. One is called hypotrophic non union and the other is atrophic non union. In hypotrophic non union, you have bone callus formation on each side of the major fracture components, but it does not bridge the fracture. In atrophic non union, you have significant osteopenia and rounding off of the ends. I think you have to have a look at these images yourself and realise that this is not the fracture of the shaft of a bone, this is a comminuted fracture of the distal end of the bone involving a joint of multiple pieces. There is no one single fracture line. Q. But-- A. During the process of healing that has been occurring, there is some consolidation of bone - there is some bone healing occurring. So in the end there may be two or three or four major fragments and the radiological imaging shows that there is a line. Now fracture union can occur even when a fracture line is visible as long as there is bridging around the outside of the fracture. That's why I'm not committing myself, I said I am unable to tell whether this is united or not united. Q. Were you able to tell whether there was-- A. No I don't think anybody can tell. Because it's in the eye of the beholder and there are - there is evidence to suggest that if you showed the same films to a number of different people, you'll get different answers to them. It is very difficult often to determine whether or not fracture or healing has occurred in a fracture such as this. It is very different to a fracture in the mid shaft of a bone ." 312. Professor Nade emphasised that when making treatment judgments in such circumstances, it was not just a matter of looking at radiographs but it was necessary to take that information together with the products of clinical examination of the patient. In this regard, he stated that at such a clinical examination non-union would enable the examiner to feel movement when stressing the limb. In this regard he considered it to be of some relevance that at operation on 25 January 2005 Dr O'Carrigan found the fracture had appeared to have united. 313. Professor Nade pointed out that there was a difficulty interpreting radiographs for signs of callus when seeking to make judgments on whether or not there was progress to union: " Q. What do I discern from your use of the word "obvious"? Do you mean that there was some subtle callous or that there was no callous, I don't know what that means? A. I've tried to explain to you that these images are very difficult to interpret. There's nothing that was grossly obvious sticking out as callous. Normally by four months after a fracture and a straightforward simple fracture, you would expect there to be some evidence of bone formation. That's the biology of fracture healing. So there was nothing that was grossly obvious, but the fibular was healing, so I mean the healing process was going on. Q. Well observations are either liminal or subliminal, what was the character of your expression "obvious"? A. I didn't see any callous. It doesn't mean it wasn't there but this callous has some cartilaginous components to it as well, which are not radio dense ." 314. Professor Nade explained why in the case of this very complicated, difficult fracture, at 4 months there should be encouraging signs of eventual bone union. He drew attention to the fact that jut because there was mobility in the fracture on 25 February 2004, this did not necessarily mean that the fracture was un-united as the progress had been continuous in that it went from an acute fracture in October 2003 to a united fracture as described by Dr O'Carrigan in January 2005, with healing obviously continuing in between those times. 315. Professor Nade pointed to the fact that the fibula had united and that bone had a faster healing rate than the tibia. This was taken up by the cross-examiner but it led nowhere: " Q. The absence of healing of both bones would be a further non reassuring sign for you looking prospectively when you would consider the likelihood of union in the future wouldn't you? A. Given this particular fracture I wouldn't commit myself so far. You seem to be assuming that all fractures heal in 16 weeks from what you quoted to me earlier. That's not the biology of fracture healing. They take a varying period of time and there are numerous factors which inflict on the fracture healing process, the biology of it ." 316. In this regard Professor Nade explained that he would not be surprised if the tibia had not healed solidly in 6 months. He was challenged as to the 24 March 2004 x-ray findings but responded that one could not say there was non-union at that time because the x-ray was taken through a cast which served to obscure any evidence of bone callus formation because of the relative radio opacity of the cast material 317. The debate concerning fracture healing became confounded by the assumption made on behalf of the plaintiff that there was a single fracture line when in fact, as was explained by Professor Nade, the fracture in issue was not a clean break across a bone, but involved multiple pieces which were in different stages of healing over time. This issue was further explained by Professor Nade, drawing attention to the multi-dimensional planes of a comminuted fracture of the distal tibia, as the following evidence explains: " HIS HONOUR Q. I think it was Mr Hirsch who was referring to the fracture line? A. Multiple pieces, right which some of them may have glued together in the healing process leaving one line about which total healing hadn't occurred because that frequently happens. You produce a large amount of bone but if there's still a little bit of movement it tends to work around one particular plane when some of the healing has occurred. HIRSCH Q. You're not saying are you that there was no fracture line visible in this case sorry? A. I'm - I'm using the word fracture line in the term of the colloquial use among radiologists and among orthopaedic surgeons but I'm saying that it was not a clean straight line fracture. So there were numerous fracture lines and the whole point about using the word fracture line here as I understand it is to say that there was not complete bony union between the two major fragments once it had appeared. Q. Professor Nade would you agree that it was probably the manipulation of the equinus deformity on 9 February that caused this increased angulation that you measured in the subsequent x-ray? A. Yes. Q. is it not the case that an angle is measured from a point, a discrete point? A. (No verbal reply) Q. In other words when you say that there was a 20 degree angulation you're saying that there's a 20 degree angulation between two parts of the tibia? A. Yes. Q. The part in the middle, the part in the fracture - you understand what I'm talking about? A. You'll have to keep saying some more to understand. Q. That point of the fracture would be aligned along which the bone was broken is it? A. No it's an axis about which movement occurred which included some of the ..(not transcribable).. I tried to explain area there are - this was a very comminuted fracture. There was no line along which it was broken. There were numerous lines and the whole thing was in a shattered in a whole lot of pieces. But eventually as time went along some of the healing process occurred. So by this stage there were two major fragments, one close to the ankle joint and one the rest of the shaft of the tibia. So it is possible to get an alignment of those. The shaft of the tibia is straight forward enough because just look at where it lies. The distal fragment you can get an alignment based on the position of the ankle joint and by doing that you can draw pencil line and measure the angulation in that way. So there's - there is an access, there was an access of movement about which this angulation changed from the previous imaging. Q. Can we agree that that access of movement is the fracture line? A. It's one of them. Q. Are you saying that there was more than one fracture line in the tibia? A. I think I've said that about 50 times already. This is a very comminuted fracture. There are numerous fracture lines. The lower end of the tibia was in multiple pieces. Q. Well we're not talking about the lower end of the tibia doctor we're talking about the access upon which the fracture occurred when the equinus deformity was corrected through manipulation that resulted in an increased angulation? A. That was at the lower end of the tibia, yes. Q. That access was the fracture line that we're talking about in this case? A. No that access was the area where there was fibrous union where movement occurred. HIS HONOUR Q. In radiological terms do I understand that the fracture line to be equivalent to a line of separation between fragments? A. It's the loss of continuity of the pieces of bone, that's a fracture. Fracture's a wounded bone. So wherever you've got a loss of continuity that's a fracture line. But a comminuted fracture means that it's in multiple pieces. This fracture was a very comminuted fracture at the lower end of the tibia close to and involving the ankle joint. After a period of time some of that had become more solid. So at the time the manipulation was done there were effectively two major fragments and that's where movement occurred. " 318. Professor Nade refuted the proposition that as at 25 February 2004, the plaintiff was in need of surgical intervention for treatment of his tibial fracture. He pointed out that when considering a surgical option it had to be remembered that the outcome was always uncertain and in the case of a fracture of the kind under consideration, it can't be assumed that there would be a perfect result and the desired outcome from surgery. 319. Professor Nade stated that as at 24 March 2004, the question of whether surgery was indicated was a matter for clinical judgment. In this regard it was necessary to consider some relevant factors: " Q. What are the factors in favour and against a surgical option at that time? A. The risks of surgery in this situation. There's no guarantee that surgery would necessarily improve the outcome, I think is the word you used. What about the risks of death from anaesthesia, infection, amputation, lack of blood supply, neurological pain associated with it. This is an extremely difficult fracture to deal with. Q. Have you never-- A. So I think that has to be weighed up in terms of what you're going to do about it. It's easy as a lay person sitting and looking at an x-ray picture and saying Oh yes we can straighten that out. But that doesn't include all the other things involved in what surgery might risk. Q. The matters which you've just outlined, amputation, infection et cetera, are they the relevant risks of surgery that you had in mind? A. I think in this situation yeah, where you're dealing with a bone which is very close to the skin surface to get adequate cover after attempting some sort of reconstructive procedure, getting the skin to cover is difficult. The risks of infection are quite significant in this situation. Infection where you have an implanted foreign body, such as some for of internal fixations as was suggested to me increases the risk of that infection being very difficult to eradicate, and I think that's a major risk in this situation, yeah. The tissues have been traumatised and so - but that comes into the clinical judgment. Q. So-- A. And also things like the - Mr Peterson was known to be a smoker, that increases the risk. Interfering with the biological process of fracture healing if it's going on and having to start it again may end up with a non-union. There's - they're all significant risks. Q. What I'm getting from you in this regard is that there's always a trade off between the decision to operate or not to operate? A. Always absolutely ." 320. Professor Nade refuted the suggestion that joint stiffness due to delayed surgical treatment was an indication for earlier surgical intervention: " Q. There would be a disadvantage in delaying the surgery because - and I'll ask you whether you agree with this - the disadvantage of delay is that it tends to encourage irreversible stiffness in joints? A. I think I explained earlier on that this man suffered a very comminuted fracture to the distal end of his tibia involving the ankle joint. It was inevitable regardless of what was done that this man would have stiffness of his ankle joint as a consequence of the injury. I do not believe that operating on it in the way you suggest, that is internal fixation, would make any difference whatever to stiffness involving his ankle joint. Q. The longer you wait before you intervene the worse becomes the situation for joint stiffness, do you agree with that or not? A. In this particular fracture I disagree entirely/ HIS HONOUR Q. Can you explain why that's so? A. Yes the internal fixation of fractures has been practiced for a long period of time but it increased significantly in the 1970s and subsequently because it meant that you didn't need a plaster of Paris cast as the normal material used to immobilise a joint above and a joint below, even if those joints were uninjured. Because if they don't move they do tend to at least in the initial period become stiff, not completely stiff but a reduced range of movement. Now the principle that Mr Hirsch is expounding is that if you've got a fracture in the mid shaft of the bone and you can internally fix it then there's no need to put an external form of splintage on and that allows the joints to move, and that's been one of the ways of treating fractures more recently with the better devices for internal fixation. So wherever possible internal fixation in order to allow early mobility of joints is a good principle. However you have to weigh up the risk of internal fixation, the risks of surgery doing that, and the particular fracture with which you are dealing, and I think Mr Hirsch is using a broad statement that internal fixation allows mobility of joints, but it doesn't always do so because that depends on the nature of the initial injury. Q. Isn't just weighing up the risks a lopsided equation? Do you not also have to weigh up the benefits? A. Of course. Q. So what's the differential analysis? A. In this particular case I don't think anything would improve the range of movement to this man's ankle joint, because it was irreparably damaged at the time of injury. The internal fixation would have to be internally fixed quite firmly in order to hold the fracture ends together. Whether or not this is possible or not is yet another question. I don't think it would have been possible in this situation to use an intramedullary nail and therefore some form of externally applied plate and screws would be necessary, or another external fixator such as he had when he was initially treated would be used. Now the external fixator would probably immobilise the joint because there's not enough purchase on the distal fragment of the tibia to be able to get adequate immobilisation. So which joint are you trying to protect in the situation of advantages? The ankle joint, and as I said before I think this ankle joint was irreparably damaged. His knee joint was moving anyway. When the cast came off he was able to move his foot joints, so that's what I see as the sort of balance that has to be weighed up. Q. Is the clinical outcome [of] intervention confirmatory of irreparable damage to the ankle joint? A. The best clinical outcome that you would be trying to achieve would be a limb which was in one piece and is not moving at a site where there was fracture which was free from pain and which allowed reasonable function, reasonably normal function, and I say reasonably normal because I don't think this man would ever get back normal function of his ankle joint as such. But the other joints were not injured so they should have normal function. So that's what I would say is a reasonable outcome. Now you have to weigh up, or I have to weigh up when I treat patients I weight up what are the risks? Am I going to do something to this person which might jeopardise the fact that he gets a bone which is solidly united and is functional. But what appears on the imaging film is not particularly relevant to that, if that's what you're achieving in the outcome, and I think I started off earlier today saying that the most important thing to do is to achieve bone union so that the limb is useful and he can walk on it. The deformity due to the angulation is a secondary matter which may or may not require treatment. There are many people leading perfectly normal lives without any significant symptoms who have deformity of their bones after fracture. Q. Have you seen clinical evidence of irreparable damage to the ankle joint in this case? A. Yes, almost invariably. Q. In this case? A. I have not examined Mr Peterson ." 321. Also relevant was the need for a balanced discussion with the patient concerning a reasonable exposition of the risks and benefits of surgery. In this regard Professor Nade noted that if surgery was undertaken, one of the disadvantages would be starting from scratch again with at least a further 4 months of waiting time as the further healing from the surgery had to be accommodated. He explained this was a simple matter of the biology of the fracture-healing process. 322. Professor Nade stated that on his analysis, the plaintiff's problems were not due to bone position, but were due to lack of movement in the ankle. 323. Professor Nade explained that the process of internal fixation involved unpredictable factors for post-operative healing time. 324. Professor Nade explained that the highest priority or prime aim for the surgeon in treating a patient in these circumstances was to achieve bone union. He explained that the prospect of ensuing joint stiffness was a matter of secondary, not prime consideration, and a long way from being top priority. 325. Professor Nade emphasised that as at 24 March 2004, some 5.5 months following the injury, at that time, it would not be expected that bone union would occur within the time range of 4 – 6 – 8 weeks. 326. Professor Nade said he considered there were significant risks in performing an operation on the plaintiff as at 24 March 2004, including difficulty in achieving internal fixation in this case. 327. Although Professor Nade agreed that the risk of MRSA infection and the fact that the plaintiff was a smoker, were by themselves, not reasons to delay surgery, he thought that the trauma of surgery to the skin and soft tissues would be a significant factor to be taken into consideration in deciding whether or not to have offered surgical intervention as claimed on behalf of the plaintiff. 328. Professor Nade indicated that, in addition to the preceding considerations concerning whether or not surgery should be arranged, it should be considered in combination with the "risk profile and aggressiveness of the surgeon", there being "a whole spectrum of surgical opinions" of how the plaintiff's problem might be dealt with. Professor Nade stated that by August 2004, the decision that the plaintiff needed something to be done, thereby resulting in the referral (to Dr O'Carrigan) was not an unreasonable decision. D. EVIDENCE REVIEW – DAMAGES 329. In the paragraphs that follow I set out my summary of the relevant damages evidence. Mrs Marilyn Peterson – plaintiff's mother 330. The plaintiff's mother, Mrs Marilyn Peterson, gave evidence. 331. Mrs Peterson stated that she accompanied her son to see Dr Elliott on 5 August 2004, at which time a booking was made for the plaintiff to be operated at Wollongong Hospital within the coming weeks. She stated that she subsequently took a call from Dr Elliott who advised that the planned surgery was to be cancelled because he was referring the plaintiff to see Dr O'Carrigan. Her recollection of the reason given by Dr Elliott for this was that Dr O'Carrigan as an expert in the field of the proposed surgery and he would prefer that the plaintiff be referred to him. 332. Mrs Peterson also gave evidence of payment of $22,933 for the plaintiff's remedial surgery performed by Dr O'Carrigan. As well as paying about $25 per week for the plaintiff's medications until he returned to work. She kept no receipts of those payments. 333. Mrs Peterson stated that in between the time of the plaintiff's operation in October 2003, and the plaintiff's return to work in January 2007, she provided domestic services to the plaintiff to assist him with his day-to-day needs. She said she took her son in to live at her home for about a week or two, after which he returned to live in his own unit but with her assistance when she visited for that purpose. I understood that such assistance was provided on a 24 hour on call basis for the first two weeks, followed by an average of between 3 to 4 hours per day or about 25 hours per week thereafter, until January 2007. 334. Mrs Peterson stated that the assistance she had provided to the plaintiff comprised the provision of pre-cooked meals and food that was specially prepared for him, as well as washing, cleaning, taking the plaintiff to various appointments with doctors and physiotherapists, overseeing his medications, and supporting him through the depression which he had developed. 335. Mrs Peterson stated that before the original injury to her son's leg he was active and outgoing, whereas subsequently he has not been as gregarious or as outgoing as he used to be. She described him having become a sad person. 336. The credibility of the evidence given by Mrs Peterson was not challenged. Mr Chad Stennard – plaintiff's current employer 337. Mr Chad Stennard, the plaintiff's current employer gave evidence concerning the plaintiff's work abilities. He first met the plaintiff 13 years previously, when they were first year apprentices together at TAFE. Later, they also shared common employment as apprentices for a while. The plaintiff commenced working for Mr Stennard in January 2007 and has maintained that employment since that time. 338. Mr Stennard described the plaintiff's pre-injury work ability as being "a gun, working on rooves, under houses, especially on rooves". He described the plaintiff's abilities as "better than most", that is, an employee with abilities well above the average that would ordinarily be reflected in the amount of money he would be able to earn. In this regard he said if the plaintiff were not physically limited for some of the work tasks in the trade, he would be prepared to pay him up to about $1200 per week without overtime "take home". He stated that the plaintiff only received the award wage for plumbers because of his limitations. In this regard, the plaintiff's earnings at the time of the hearing were $600 per week net. Medical reports – damages issues 339. Apart from the reports from Dr O'Carrigan, which have been reviewed at paragraphs [83] to [112], there were two reports on damages issues, namely, Dr Harvey and Dr Davis. Dr Frank Harvey – defendant's consultant orthopaedic specialist 340. On 16 October 2007, at the request of the solicitors for the first defendant, the plaintiff was examined by Dr Frank Harvey, a consultant orthopaedic surgeon. Dr Harvey prepared a report on the same date. 341. After his review of the plaintiff's history of injury, as well as his personal and social history, Dr Harvey noted the plaintiff's current complaints. The main complaint was tenderness over the area of location of a screw on the medial aspect of the upper tibia, just below the knee. The plaintiff related an inability to walk on rooves, crawl under floors, carrying out plumbing work that involved the setting of baths in cement, together with some ladder work. The plaintiff complained of almost constant pain across the front of the mid-tibia and pain on the lateral aspect of the right leg just below the knee. This was aggravated by heavier lifting and walking, especially over uneven ground. The plaintiff complained of a worsening of the pain after work. He complained of right ankle stiffness and of the screws over the medial aspect of his right ankle catching on his work boot. He also complained of dry skin over the medial aspect of his right ankle. There was also a complaint of some tenderness over the front of the right patella and an inability to run, difficulty with squatting, sensitivity about the appearance of the scars to the right leg and ankle, and some problems with depression. 342. Dr Harvey recorded in his note of history taking that on 2 December 2001 the plaintiff had a previous motorcycle accident which resulted in a head injury, a period of unconsciousness, and a seizure which required hospitalisation for 3 days. There were no reported recurrences of seizures. He also took a history of the 1999 injury which comprised an undisplaced fracture of the distal end of the right radius whilst snowboarding, which resulted in a complete recovery. 343. On his examination of the plaintiff, Dr Harvey noted that the plaintiff walked with a slight limp, and could not squat all the way down to the floor due to ankle stiffness. He noted some medial displacement of the foot in relation to the lower tibia, the right thigh circumference being 1 centimetre less than the left thigh and the right calf being 2 cm less in circumference and left calf. He noted multiple scarring to the lower right leg. 344. Dr Harvey noted tenderness over the prominent indwelling subcutaneous screw over the front of the right medial malleolus. He also noted a reduction of extension and flexion movements of the right ankle compared to the left ankle. These reductions in movement were less than half the range of movement on the normal left side. Dr Harvey noted that the movements of the right knee were full and painless and without ligamentous instability. 345. After reviewing a series of x-rays and CT scans Dr Harvey confirmed the diagnosis of a comminuted fracture of the plaintiff's right distal tibia involving the right ankle joint, caused by the motorcycle accident in question. 346. Dr Harvey stated that as a consequence of some loss of flexibility in the plaintiff's left ankle joint, the plaintiff would have difficulty with carrying out heavier work. As a result he suggested some work conditioning be undertaken, which he thought should enable the plaintiff to get back to normal plumbing duties, despite some loss of agility and athletic performance. 347. Dr Harvey was of the view the plaintiff would have some permanent residual loss of movement in the right ankle and sub-talar joint together with an increased likelihood of developing osteoarthritis later in life, a risk which he considered to be small. He acknowledged that if the plaintiff developed ankle pain he would need an arthrodesis or ankle fusion. He regarded this as a possibility rather than a probability. He rated that possibility at 15 per cent. He did not adumbrate upon the statistical basis of that view, namely, whether or not that was a lifetime average risk. Dr John Davis – plaintiff's consultant occupational medicine specialist 348. On 16 January 2008, at the request of his solicitor, the plaintiff was examined by Dr John Davis, a consultant in occupational medicine. In his report dated 19 January 2008, Dr Davis noted the plaintiff's current complaints to be pain right ankle, intermittent "electric shock" type sensations in his foot whilst wearing boots, stiffness in the ankle, limping, inability to run, aggravation of symptoms when squatting and carrying out heavy lifting, inability to pivot for forceful pushing, aggravation of symptoms during prolonged driving, disturbed sleep, inability to return to sporting activities, inability to kick a football, and restrictions in the type of work he is able to undertake. 349. On examining the plaintiff, Dr Davis found that the plaintiff walked with a mild antalgic gait, weight-bearing more to the left when at rest. He observed the plaintiff to have difficulty with squatting due to a reduced range of movement and he observed an obvious deformity around the right ankle with clinical evidence of external rotation of the foot at about 5 degrees. He observed multiple surgical scars of the plaintiff's right lower leg and foot, consistent with previous orthopaedic procedures. There was a full range of movement of the right knee, 2.5cm wasting of the right calf and 1cm wasting of the right thigh. 350. Dr Davis noted that the plaintiff had suffered quite considerable pain over a number of years and was severely restricted in all of his activities. He expressed the opinion that the plaintiff has been left with a degree of permanent impairment, including a marked reduction in the normally expected use of his right lower limb. 351. Dr Davis expressed the opinion that the plaintiff was unfit to return to all unrestricted duties as a plumber/drainer/gas fitter and should restrict himself to activities not undertaken at height and not involving work in crawl-ways or other restricted areas. 352. Dr Davis also expressed the opinion that the plaintiff's level of symptoms will increase in intensity with increasing arthritic changes in the right ankle over time, such that it is expected that the plaintiff will have to take forced early retirement by the age of about 55 years, with a linear decrease in his capacity to work after the age of 50 years. He expressed the opinion that the plaintiff's injury has adversely impacted upon all spheres of his life, including his activities of daily living and his ability to enjoy the general amenities of life. E. FINDINGS – CREDIT, LIABILITY AND CAUSATION ISSUES 353. In the paragraphs that follow, I set out my findings concerning the credibility of testimony, on the progressive state of healing of the plaintiff's distal tibial fracture, together with the consequential liability, causation and contribution questions that call for decision. Consideration of Issue 1 – Credibility of testimony 354. In my view no substantive issues of credit arose with regard to the primary issues calling for decision in these proceedings. Save for one factual issue arising in the plaintiff's own evidence concerning his smoking of cigarettes, I accept that the plaintiff and all lay witnesses gave credible testimony that should be accepted. 355. I also consider that Dr Elliott gave his evidence truthfully, although some of his evidence was given in a defensive manner. This was understandable in the context of a claim made against him for professional negligence. I did not consider that the defensive component of his evidence, or any other aspect of his evidence, reflected adversely on his credibility as a witness. 356. There were no credit issues arising from within the array of the expert evidence. The differences of opinion amongst the expert witnesses involved legitimate matters for debate that were open to different points of view and interpretation on the state of the evidence. 357. In my view, a good part of that debate could have been considerably shortened, if not quelled, had the key x-ray images or prints of them been tendered, and if the expert evidence interpreting those images had been the subject of a joint conference of experts to identify areas of agreement and the basis for disagreement, and if the expert evidence had been given concurrently : UCPR rr 31.24, and r 31.35(e) – (h). 358. There is only one matter upon which I do not accept the evidence of the plaintiff. This is on the issue of the timing of him being informed that he ought to cease smoking cigarettes during the period when he was awaiting the healing of his fractures. That matter relates to the defendant's allegation of contributory negligence on the part of the plaintiff. 359. In all other respects, I accept the evidence of the plaintiff as to his background situation, health and work history, and with regard to his ongoing disabilities as was related in his oral evidence and in the histories he gave to medical examiners who summarised those histories when providing their reports in this case : Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25. 360. On the issue of the plaintiff's cigarette smoking, there was a difference between the evidence of the plaintiff and that of Dr Elliott concerning when the plaintiff had been asked to cease smoking. 361. The plaintiff claimed that following the initial treatment of his fractures at the hospital, he had ceased smoking cigarettes as soon as the matter of the advisability of him doing so had been drawn to his attention. He denied that he had continued to smoke after that discussion, as was claimed by Dr Elliott, who stated that he had warned the plaintiff to stop smoking whilst waiting for his fractures to heal. 362. In approaching the resolution of that factual dispute it must be recognised that Dr Elliott had a very good reason for advising the plaintiff to cease smoking as he was aware that smoking deleteriously influenced the progress of healing. This was an issue upon which all 5 orthopaedic surgeons were in agreement. In my view there is little room for doubt that whenever Dr Elliott saw the plaintiff he would have known of this deleterious consequence of smoking, and would therefore have been duty bound to raise the matter with the plaintiff on being made aware of the fact that the plaintiff was smoking. 363. Dr Elliott would have been aware from a very early stage that the plaintiff was a smoker. This is so because the Shoalhaven Hospital notes made by the resident medical officer on the plaintiff's admission to that hospital at 15:45 hours on 11 October 2003 record the fact that the plaintiff was a smoker. Those notes were incorporated in the Wollongong Hospital notes when the plaintiff was transferred there. In addition, at 23:50 hours on 11 October 2003, the Wollongong Hospital notes written up by the orthopaedic registrar, Dr Palapitige, recorded that the plaintiff was a smoker, and also smoked marijuana. Further, the hospital progress notes made by nursing staff immediately following the plaintiff's fracture reduction procedure record that at 17:05 hours on 12 October 2003 the plaintiff was wanting to be taken outside to smoke a cigarette and that he was unhappy that he could not have a cigarette. 364. The plaintiff was admitted to the hospital under the care of Dr Elliott : Exhibit "F.B" page 56. In these circumstances, especially where Dr Elliott assisted at the operation on 12 October 2003, I consider it would have been most unlikely that he had not reviewed the notes of a patient admitted under his care. I therefore consider that Dr Elliott would have known from a very early stage of the plaintiff's treatment that he was a smoker. 365. The hospital notes make reference to Dr Elliott having seen the plaintiff on 7 November 2003 : Exhibit "F" page 24. The fracture clinic notes also record that the plaintiff was seen there by Dr Elliott on 7 May 2004 and 11 June 2004. In addition, Dr Elliott gave evidence that he would have seen the plaintiff periodically at the fracture clinic in the post-operative period. 366. In these circumstances I am comfortably satisfied that in the post-operative period, Dr Elliott would have had both the opportunity and occasion to speak to the plaintiff about his smoking and in fact did so. 367. The hospital fracture clinic notes for 7 May 2004 serve as confirmatory evidence that at least on that occasion, when Dr Elliott saw the plaintiff for review, in the context of "slow progress to bone union" he made a reactive and exclamatory remark evidencing advice he had given to the plaintiff to "Stop smoking!" : Exhibit "F.B" page 22. I infer from the exclamation within that note that this was not the first occasion on which such advice was given to the plaintiff. 368. I therefore prefer the evidence of Dr Elliott to that of the plaintiff on the issue of when the plaintiff was told to cease smoking. 369. Dr Elliott's evidence was that he had advised the plaintiff to stop smoking. He said he did so on at least one or possibly more occasions when he saw the plaintiff at the fracture clinic, although this was not necessarily recorded on each occasion. 370. Dr O'Carrigan's letter dated 27 September 2004 to Dr Elliott recorded the fact that the plaintiff had told him that he had continued to smoke until 6 weeks previously, which would have been approximately mid August 2004, which would have been shortly after Dr Elliott saw the plaintiff for the last time on 5 August 2004. 371. In my view Dr Elliott told the plaintiff to stop smoking at the very least, by 7 May 2004, and the evidence reveals that the plaintiff continued to smoke until early to mid-August 2004. On this issue, I prefer the evidence of Dr Elliott and the record within the hospital progress notes to the contrary evidence of the plaintiff. 372. This finding has no other impact on the credibility of the plaintiff's testimony. I find that in all other respects, the plaintiff gave his evidence in a reasonable, truthful and accurate manner and to the best of his ability and recollection. Consideration of Issue 2 – Progressive state of healing of distal tibial fracture 373. There was considerable discussion and debate within the evidence of the orthopaedic surgeons as to whether, between 9 February 2004, which was when the external fixation device was removed from the plaintiff's right lower leg, and 5 August 2004, which was when Dr Elliott last saw the plaintiff before referring him to Dr O'Carrigan on 11 August 2004, there was evidence of non-union, or alternatively, delayed union, of the fracture of the plaintiff's distal right tibia such that these conditions should have been reasonably diagnosed. This issue is relevant to determining whether there was a relevant breach of duty of care on the part of the defendants. 374. The disparity of the orthopaedic opinions on this issue can be conveniently divided into the clinical and chronological order in which those opinions evolved. 375. When Dr Elliott last saw the plaintiff on 5 August 2004, as was clear from his provisional diagnosis he believed that he was dealing with a case of tibial non-union. That is clear from his handwritten notation in his patient records that related to the plaintiff : Exhibit "G", page 11. That view is confirmed by the terms of Dr Elliott's referral letter to Dr O'Carrigan, which was dated 11 August 2004. In that letter, Dr Elliott specifically referred to the plaintiff's fracture as being "un-united" : Exhibit "G" page 12. Beforehand, on 7 May 2004, Dr Elliott held the opinion that the plaintiff's distal tibial fracture was showing "slow progress of bone union" : Exhibit "F.B.22". It is clear from this evidence that Dr Elliott had changed his opinion from that of there being slow progress to union to that of non-union, over the period 7 May 2004 to 5 August 2004. 376. In Dr Elliott's oral evidence, in cross-examination, he volunteered the view that he had been proven to be wrong as to his provisional diagnosis that there was non-union of the fracture at the time he referred the plaintiff to Dr O'Carrigan : T Day 2 page 24.10. I shall return to this point after considering the views of Dr O'Carrigan. 377. On 27 September 2004, following his first examination of the plaintiff, Dr O'Carrigan wrote to Dr Elliott and acknowledged the referral, stating his understanding that this had been for management of "persistent non-union". Dr O'Carrigan's letter then went on to describe a state of "delayed union", which at first reading, was curious, because according to the evidence, these terms meant different things, non-union being the description of a fracture that was not going to go on to union without surgical intervention, and delayed union being a state of fracture that was expected to eventually heal without surgical intervention. 378. Dr O'Carrigan was not called to give evidence concerning what he had understood or meant to convey by his use of these terms. Therefore, his correspondence to Dr Elliott remains open to interpretation. A number of possible interpretations arise. 379. First, it is possible that in expressing himself in the way that he did, Dr O'Carrigan was acknowledging that when Dr Elliott referred the plaintiff to him, there was a state of tibial non-union, but this had evolved into a state of delayed union in the intervening 5 weeks in between when the plaintiff was last seen by Dr Elliott and when he was first seen by Dr O'Carrigan. Such healing could have been due either to the plaintiff ceasing to smoke, as was suggested by Dr O'Carrigan's letter to Dr Elliott, or simply because healing had continued to occur due to the effluxion of time, or a combination of both of these factors. 380. Secondly, it is possible that Dr Elliott was incorrect in his provisional diagnosis of non-union, as he stated in cross-examination. 381. Thirdly, it is possible that Dr O'Carrigan could have been using the terms non-union and delayed union interchangeably. 382. I consider the first of these possible explanations is the more likely one because, in the absence of any explanatory evidence from Dr O'Carrigan, the third possible explanation involves speculation, which cannot be rationally resolved. In my view a factor that compels an acceptance of the probability of the first explanation being correct is the fact that in his letter to Dr Elliott dated 30 November 2004 Dr O'Carrigan was more definite, and stated that the plaintiff "has a delayed union", a view he repeated in correspondence to the plaintiff's solicitor on 20 May 2007. At that time Dr O'Carrigan had the benefit of his own operative findings available to him as a result of the operation he carried out on the plaintiff on 24 January 2005. 383. In his letter, Dr O'Carrigan stated that at the operation he carried out on the plaintiff on 24 January 2005, and which involved an osteotomy procedure at the previous fracture site of the tibia and fibula, the fracture "appeared to have united". 384. Dr Bornstein questioned the meaning of this last quoted expression because the syntax used by Dr O'Carrigan suggested that what had been united was the previous fracture of the fibula and not the tibia. In aid of that interpretation, Dr Bornstein drew attention to the fact that the osteotomy performed by Dr O'Carrigan had been undertaken using a Gigli wire saw, rather than by an oscillating osteotome followed by using a chisel, suggesting that Dr O'Carrigan had not cut through bone, but had cut through fibrous tissue. This is what Dr Bornstein inferred from the description of the instruments used in the procedure. 385. Professor Nade did not agree with Dr Bornstein's view, stating that the Gigli saw was an instrument that could have been used for the described procedure, noting the choice of instrument was up to the surgeon concerned, also noting that the Gigli saw could have done the job when used in skilled hands, this instrument having been around and in use well before the advent of the oscillating osteotome. 386. In view of that discussion, in the absence of evidence from Dr O'Carrigan, I do not consider that it is open for me to conclude on the basis of Dr O'Carrigan's stated use of a Gigli saw, that contrary to what he has stated in his report, he did not cut through united bone as his report suggests, but rather, that he cut through fibrous tissue, thus suggesting there was non-union of the distal tibial fracture. Such a conclusion is inconsistent with Dr O'Carrigan's unchallenged observation of apparent union. 387. Accordingly, I consider Dr O'Carrigan's use of the term "appeared to have united" to be an unchallenged clinical finding that supports the first interpretation of events, namely that the slowness of the plaintiff's right distal fracture to heal over time was a problem with delayed union, rather than representing a state of tibial non-union. 388. A consideration of this issue requires that due acknowledgment be given to the relevance and value of a clinical assessment of the fracture to determine whether there has been progress to union, or whether a state of non-union had been reached. This was highlighted in the evidence of the orthopaedic surgeons who emphasised the importance of making a clinical assessment rather than relying on a radiological diagnosis alone. In this regard, I consider that Dr O'Carrigan was in a position of particular clinical advantage over the plaintiff's experts Dr Bornstein and Professor Higgs because Dr O'Carrigan evaluated the issue both radiologically and clinically before he carried out remedial surgery, whereas the experts only had the radiological images and the clinical records to guide their opinions. 389. Both Dr Bornstein and Professor Nade highlighted the difficulty of drawing conclusions as to the state of healing of 3-dimensional structures, in this case the state of the healing of the fracture of the distal tibia, by reference to 2-dimensional x-ray studies, which do not provide an actual perspective of the depth of the x-rayed structure. In this regard I was persuaded by the evidence given by Professor Nade that in the plaintiff's case, there was a delayed evolution of progressive bone union and not non-union. 390. I consider that this view is confirmed by aspects of the medical evidence to which I shall refer in the paragraphs that follow. 391. First, Dr Bornstein pointed out that there was no "bright line" between delayed union and non-union. He also indicated that one could not be dogmatic in interpreting the x-ray films without the input of the treating surgeons. Significantly, and consistent with the absence of an analytical "bright line", he also conceded it was possible to obtain a combination of partial union, partial non-union and partial delayed union in the same structure. This concession was made in the context of the difficulty of examining a 2-dimensional representation of what was a 3-dimensional structure. In my view that explanation is consistent with an evolving state of union, albeit delayed. In this regard it is significant that after reviewing the entire series of films Dr Bornstein went on to revise his views concerning non-union by conceding that what was shown on the films was in fact delayed union. He also recognised on the x-rays a "tiny" area of primary bone healing that was different from callus formation. I infer from this x-ray finding that the bone healing that was described, went on to become a united fracture by the time Dr O'Carrigan operated on the plaintiff's leg on 24 January 2005. 392. Secondly, Professor Higgs confirmed that the plaintiff's tibial fracture progressed to a state of delayed union. This was consistent with his evidence that the potential for a delayed union of a distal fracture of the tibia was more frequent because of its position. This was in the context of Professor Higgs conceding that there was a range of potentially differing interpretations of the same radiology by different orthopaedic reviewers. This was a particularly important point since some of the x-ray images could not be accurately reported on for possible callus formation because they were taken in conjunction with the plaintiff wearing a radio opaque plaster cast, which was a limiting factor on interpretations of the films. 393. Thirdly, although Dr Donaldson conceded that the early series of x-rays he saw indicated that the fracture was not proceeding to union, he considered that in the circumstances it was necessary to allow time for the fracture to unite rather than taking an aggressive approach for surgery without allowing the natural process of repair to ensue over time. In taking this stance, he invoked as applicable the medical maxim of primum non nocere, or first do no harm which indicated not making an early decision for surgery. He made the important point that his review of the x-rays showed evidence of changes towards union with new bone forming even though it did not get to the stage of solid union by the time of the referral to Dr O'Carrigan. In this regard, he emphasised that union meant different things at different times. I took this to be a reference to evolving changes towards union as evidenced by point-in-time x-ray images. 394. Fourthly, the evidence of Professor Nade was illuminating, in that he pointed to the fact of union of the tibia at the time the plaintiff was operated upon by Dr O'Carrigan on 24 January 2005. He placed emphasis on the unchallenged observation by Dr O'Carrigan that the tibia had appeared to him to have united by that time. I consider that this is a most important observation, particularly as Dr Donaldson indicated that the cardinal sign of the diagnosis of non-union was also a clinical one, involving movement at the fracture site on physical clinical examination of the affected limb. There is no evidence that Dr O'Carrigan made any such observations of movement at the fracture site at the time of his surgery on the plaintiff on 24 January 2005. Against this background Professor Nade highlighted the fact that the distal tibia was a difficult area to image, as well as highlighting the fact that it was overly simplistic to speak of a fracture line when there were multiple fracture fragments at different stages of healing in a 3-dimensional structure that was not well imaged in a 2-dimensional medium. Of great significance in my view was Professor Nade's opinion that as at March 2004, it would not be expected that the plaintiff's tibial fracture would go on to bone union within the time range of 4 – 6 – 8 weeks. Even then, such estimates were not definitive and had to be evaluated by the treating surgeon in the clinical context. 395. The foregoing explanations convey the distinct impression of an evolving process of union rather than a static state of non-union. 396. Accordingly, for the reasons I have outlined, I therefore conclude that between February and August 2004 the plaintiff's right distal tibial fracture was continuing to evolve towards bone union, albeit slowly. As a result, the provisional diagnosis by Dr Elliott as at 5 August 2004 as to non-union, and the various entries in the clinical notes stating or suggesting non-union, were ultimately revealed by subsequent events, to have been incorrect. 397. In my view, this conclusion is compelling in view of unchallenged operative findings of Dr O'Carrigan that on 24 January 2005 the distal tibial fracture appeared united, which, by definition, is inconsistent with a state of non-union, that is, a fracture that will not go on to heal without surgical intervention. I consider that this view is further compelled by the statement made by Dr O'Carrigan that he performed an osteotomy at the previous facture site of the tibia and fibula. Osteotomy is a procedure that cuts through bone, not fibrous tissue. It is because of Dr O'Carrigan's operative findings that I do not accept Dr Bornstein's analysis of a possible fibrous non-bony union. The statement by Dr O'Carrigan that he carried out an osteotomy at the fracture site, in juxtaposition with Dr O'Carrigan's observation that the fracture appeared united, compels me to the view that the plaintiff's tibial fracture was progressing to union, and as such, was not in a state of non-union in the sense that it was not going to heal without surgical intervention. 398. Irrespective of whether the defendants were in the period between 25 February 2004 and 5 August 2004, considering the plaintiff's orthopaedic presentation as non-union or delayed union, it is clear that the problem was being considered and evaluated progressively over time rather than being ignored. 399. The foregoing matters form the relevant backdrop against which the clinical decisions made by the hospital and by Dr Elliott in the management of the plaintiff's fracture are to be evaluated for appropriateness in all the circumstances. Consideration of Issue 3 – Duty of care and breach 400. The consideration of the liability questions relating to whether or not the defendants were in breach of the duty of care they each owed to the plaintiff must be considered within the background framework of the Civil Liability Act 2002, the provisions of which influence the evaluation of whether or not a negligence finding ought be made and whether or not causation has been established by the plaintiff. Civil Liability Act 2002 - Statutory framework 401. The question of whether or not the defendants were negligent requires a consideration of s 5B of the CL Act. This is not in the sense of s 5B being a self-contained statement of circumstances where negligence will arise, but because it must be viewed against the backdrop of the law of negligence : Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113 per Sackville AJA at [81], citing Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263, per Campbell JA at [172]. 402. The plaintiff is not faced with any s 5B barriers in this case concerning foreseeability of risk of harm from treatment or non-treatment of his fractures. Nor are there any relevant s 5D barriers to a negligence analysis concerning scope of duty and factual causation questions. 403. The question of whether the defendants were negligent requires consideration in the context of s 5O of the CL Act, which provides that professional services do not incur a finding of negligence if it is established that at the relevant time, the professional concerned acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. That principle is subject to the proviso that peer professional opinion cannot be relied upon as a defence if the opinion concerned is considered by the court to be irrational : s 5O(2) of the CL Act. 404. The onus is on the defendant to prove a defence based on s 5O of the CL Act : Halvorsen v Dobler [2006] NSWSC 1307; Dobler v Halvorsen [2007] NSWCA 335. Duty of care 405. There was no dispute that whenever the plaintiff was seen by orthopaedic registrars at the first defendant's fracture clinic, or by the second defendant, when consideration was given to the post-operative management of the plaintiff's fractures, each of the defendants owed the plaintiff a relevant duty of care. Content of duty of care 406. The standard of care required of each of the defendants in the circumstances, was that which was to be expected of an orthopaedic surgeon of ordinary skill and competence exercising reasonable care in the post-operative management of tibial fractures of the kind sustained by the plaintiff : Rogers v Whitaker [1992] HCA 58 per the majority at [12]-[14]; (1992) 175 CLR 479. Alleged breach of duty of care 407. The determination of whether there has been a relevant breach of duty of care on the part of either of the defendants requires a prospective analysis, where care must be taken to avoid an impermissible retrospective analysis as the required analysis is prospective: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, as was identified and explained by Hayne J at [126], p 461, namely : "That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event, it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury." 408. The reasonable person referred to in Vairy, in the circumstances of this case, equates to an ordinarily skilled orthopaedic surgeon who is acting reasonably. 409. The guidance in Vairy clearly warns against the contamination of the analysis by factors such as hindsight bias and outcome bias. Some commentators have drawn attention to the argument that outcome bias is often conflated with hindsight bias : Hugh TB and Dekker, SWA : Hindsight bias and outcome bias in the social construction of medical negligence : A review; Journal of Law and Medicine; (2009) 16 JLM; pp 846-857. 410. Outcome bias in this context simply means knowledge on the part of expert witnesses of an adverse outcome that influences the subsequent liability analysis. That is not a factor that can be entirely segregated from the legal analysis, as it is the very fact of the adverse outcome that brings the issue to the court for determination. However, these factors are always matters for which courts make careful allowance, and I have endeavoured to do so in my analysis. 411. There is no controversy that the questions of liability for alleged breach of duty of care that arise for determination in this case should not be viewed or analysed through the retrospectively illuminated prism of hindsight : Rosenberg v Percival [2001] HCA 18; 205 CLR 434 per Gleeson CJ at [16]; 412. The first question to be decided in the liability analysis is the point in the timeline from where the analysis of breach of duty of care issues should begin. 413. In this regard, the plaintiff accepts that the orthopaedic registrar and Dr Elliott each carried out the initial surgical treatment on 12 October 2003 appropriately and with due skill and care. This was also the effect of the expert commentaries. The fact of the primary injury and that initial surgery necessarily carried with it the inherent risk that tibial non-union or delayed union may become apparent over the ensuing months, notwithstanding that a good anatomical position had been obtained at the initial operation where the multiple fracture fragments were reduced. 414. The factors that influenced the progress of healing of the tibial fracture included the severity of the precipitating injury, which was severe in this case, the extent to which the soft tissues and circulation to the lower limb were affected by the high energy impact that caused the fractures, the natural healing biology of the fracture, which had its own variables for developing bony union, the juxtaposition of the fragments that needed to become united, the flow of blood to those structures to enable and promote healing, the presence or absence of infection, the presence or absence of additional trauma and whether or not the potential of the fractures or parts of the fractures to heal in a timely manner had been adversely affected by the plaintiff's cigarette smoking habits. 415. It is important to observe that apart from the initial work of arranging the juxtaposition of the fragments, the defendants had little if any control over these factors other than to make periodic examinations and judgments about further management. It is those judgments, which the plaintiff now seeks to attack and characterise as involving negligence on the part of the defendants. 416. It is therefore necessary to look at events beyond the initial fracture reduction surgery and commence the review at the time of the examination on 25 February 2004, at which time angulation and mal-rotation were recognised and a decision was made not to intervene surgically. 417. Before examining the actions and inactions on the relevant timeline, the second question to be decided is whether there were any other background events that could have adversely influenced the natural processes of healing of the fractures as there were events on the time line which appeared to be relevant. 418. One such event was the plaintiff taking human growth hormone supplements. The state of the evidence requires that this matter not be taken into account, as somewhat surprisingly, the medical experts were not asked to consider the effects, if any, on bone healing if the plaintiff was taking this hormone supplement. It appears that this was a matter that was unknown to the defendants. Accordingly, speculation on the consequence of this fact is not permitted. 419. Another such event was the fact that on 19 January 2004 the plaintiff injured his right foot and ankle by stumbling on it whilst walking with crutches. This event was sufficient for the plaintiff to encounter pain and discomfort as a consequence. This occurred some 97 days, or nearly 10 weeks, after the initial injury. I consider that Dr Donaldson reasonably drew attention to this matter of fact. In the circumstances it was somewhat surprising that the parties avoided addressing this topic by evidence and seemed to regard the fact of that injury as having had no consequence in the context of fractures that had been awaiting healing over the previous 10 weeks. Surprisingly, it does not appear to be a matter that was drawn to the attention to the doctors who examined the plaintiff at the first defendant's fracture clinic, nor did it appear to have been a matter drawn to the attention of Dr Elliott. This is a matter to which I shall return when dealing with the causation issues. 420. Another such event was the fact that the plaintiff developed an infection at the fixator pin insertion sites on his right lower leg. This infection required that the external fixator device be removed. This occurred on 9 February 2004. This was at a time when union of the plaintiff's fractured tibia had not yet been achieved. 421. It appears from the evidence that there was no relevant opportunity for the defendants to have reason to arrange surgical intervention prior to 9 February 2004. It also appears that such intervention was not justified on 9 February 2004 as there was adjacent MRSA infection and it was still reasonable to await the outcome of the expected natural healing processes. Accordingly, it is necessary to look beyond 9 February 2004 to determine whether, at any point on the subsequent timeline, surgical intervention was required to manage the plaintiff's unhealed distal tibial fracture. 422. Therefore, the third question to be decided is when after 9 February 2004 was there a reasonable opportunity for orthopaedic intervention, and should the defendants be subject to a negligence finding for not arranging for such an intervention to take place before the plaintiff was referred to Dr O'Carrigan on 11 August 2005 after the decision had been made on 5 August 2005 to intervene surgically. 423. The plaintiff argued that the opportunity, justification and need for surgical intervention arose following the removal of the fixator device. It was argued that such need escalated and became more compelling on each successive occasion on which the plaintiff attended the fracture clinic for orthopaedic review in the period between 25 February 2004 and 5 August 2004. The plaintiff also argued that the failure to do so amounted to a breach of the duty of care owed to him by the defendants. 424. The plaintiff's argument was initially based on Dr Bornstein's view that the 25 February 2004 x-ray dictated that surgical intervention take place at that time. That date then shifted to 25 March 2004, based on the evidence of Professor Higgs, and was also based on a review of the x-ray images. 425. The intensity of the debate over the differing x-ray interpretations amongst the experts who gave evidence was not all that surprising given that the experts conceded the images were open to interpretation. What was surprising, in the context of such an important debate on what was shown on those x-ray images, was that none of those images were tendered in evidence. In this regard, during the cross-examination of Professor Nade by Mr Hirsch, the following interchange occurred : "HIS HONOUR Q. Mr Hirsch we've reached the point of I think the-- A. There is an axis about which movement occurred. You're calling it a fracture line. I'm not calling it a fracture line I'm saying there were numerous fracture lines but after this period of time there happened to be two major fractures. Q. It's very much like the six blind men and the elephant Mr Hirsch. Are you going to ever introduce me to some prints of these radiological phenomena that we're now talking about? HIRSCH: Wasn't intending to your Honour. HIS HONOUR: I see." 426. That response was obviously a considered forensic decision made by the plaintiff's representatives. The effect of that decision was that the evidence given by orthopaedic experts concerning what they saw on the x-ray films remained abstract, and without practical cross-reference to matters that could have been pointed out on the relevant images by the respective experts, to explain and illustrate the opinions they gave in their evidence. Neither party took the opportunity to tender any of those images. The analysis must therefore proceed on the described interpretations of the evidence by the experts without illustrative juxtaposition to the primary materials upon which the evidence was based. 427. The arguments advanced on behalf of the plaintiff which were said to compel a finding that the defendants had breached their respective duties of care, can be conveniently summarised as follows : (a) By 25 March 2004, the defendants ought to have intervened to recommend and arrange surgery for internal fixation of the plaintiff's tibial fractures, and the failure to do so amounted to negligence on their part; (b) On each date the plaintiff was reviewed at the fracture clinic and/or by Dr Elliott, there was a mounting incremental delay in arranging the contended surgery, so as to amount to negligence; (c) The failure of the defendants to implement treatment using an electromagnetic bone stimulation device was a departure from the expected standard of care so as to also amount to negligence; (d) An alleged failure to advise the plaintiff of the option of early intervention, including the benefits of such early intervention, compared to the potential disadvantages of delay, which included mal-union due to uncorrected fracture site angulation, and ankle joint stiffness. 428. In my view, these arguments are unpersuasive and I do not accept them for the reasons that follow. As to non-intervention on 25 March 2004 429. Dr Elliott's reasons for not operating in February or March 2004 were that he was concerned that there had been an MRSA infection of the plaintiff's right lower leg at the insertion site of the fixator pins. Whilst opinions differed as to whether MRSA alone was a contra-indication for operating, it has to be acknowledged that the potential adverse risk from that procedure, namely osteomyelitis had to be weighed. It was a risk to be borne by the plaintiff, and one for which Dr Elliott had to take professional responsibility. 430. In my view the reasons, which Dr Elliott considered to be contraindications for operating on the plaintiff, were not refuted as being irrelevant. Further, the reasons given by Dr Elliott for not operating earlier did not appear to be inherently unreasonable, illogical or irrational. 431. In my view Dr Elliott gave cogent reasons for not operating in February and March 2004. 432. These reasons included not only the abovementioned risk of infection, but also that he thought the fracture was best left at that time to try and achieve bone union notwithstanding the presence of angulation. He gave reasons for that view, namely the severe nature of the soft tissue injury from the high energy impact. He said that opening the fracture site to disturb the soft tissue envelope around the bone would further compromise bone healing. Dr Bornstein gave a graphic account of the process of stripping down the soft tissues from the bone in such a procedure, which in my view well conveyed the issue Dr Elliott was describing. 433. Dr Elliott also stated that because the tibial fracture was very distal, it would have been difficult to obtain adequate fixation using the devices that were available at the time. That potential difficulty was confirmed by Professor Nade. 434. Dr Elliott also stated that his aim was to obtain bone healing, improved soft tissue function and carry out and osteotomy at a later date to correct the angulation or external rotation, the trade-off being to achieve earlier union. That was a course approved by Dr Donaldson and Professor Nade as being in conformity with the practice of peers in Australia, and it was supported by reasons, that is, it was not an irrational view : s 5O of the CL Act. 435. In the defence of the notion of leaving the abnormality of 20 degrees of external rotation untreated in this way, Dr Elliott reasoned that bone union was the main objective, and some patients were able to cope with a certain amount of rotation, and if not, a subsequent osteotomy could be performed. 436. In further defence of his treatment options, Dr Elliot pointed out that a disadvantage of carrying out the procedure of fixation and bone grafting in February, March and April of 2004, could have been a further delay in union, interference with blood flow, delay in wound healing, possible skin loss requiring rotational flat procedures at a later date, and the increased risk of infection. He said that these were risks he was not prepared to take. In this context, it is relevant to note that there were a range of surgical views as to what constituted appropriate clinical management of the plaintiff's fractures, some being prepared to operate notwithstanding the reasons given by Dr Elliott, namely Dr Bornstein and Professor Higgs, and others who sanctioned a more conservative approach, namely Dr Donaldson and Professor Nade. 437. In this latter regard, it was claimed that within the range of views as to what constituted appropriate clinical management of the plaintiff's fractures, none of the views were irrational. Accordingly, I consider that Dr Elliott and the hospital have made good a defence to the first summarised point of argument advanced by the plaintiff : s 5O CL Act. 438. In arriving at this finding, I have recognised and accepted as reasonable, the views of Dr Donaldson and Professor Nade not only as to the management opted for by the defendants, but also as to what constituted peer professional practice widely accepted in Australia. Once it is recognized that those views were not irrational, the effect of s 5O operates to displace any criticisms of the defendants that were offered by the evidence of Dr Bornstein and Professor Higgs. 439. In this regard, I consider that an orthopaedic surgeon in the position of Dr Elliott, faced with the risks he outlined, these being risks the patient faced and which he would be required to manage if they materialised, should not be found to have breached his duty of care by being cautious in the face of such risks, on the basis of critical opinions given in a hindsight analysis, as I consider to have been the case with the views of Dr Bornstein and Professor Higgs. I hasten to add that this finding should not be read as a personal criticism of those experts, but rather, as representing an inherent difficulty in non-clinical and retrospectively formed views when the clinical component of the care and Dr Elliott's relative aversion to risk were relevant factors to be weighed in the critical analysis. As to non-intervention after 25 March 2004 and before 11 August 2004 440. Dr Elliott stated that he believed the April 2004 radiology showed that bone union was progressing following the removal of the external fixator. He based that view on a comparison between those x-rays and the previous radiographs. The plaintiff criticises that opinion as a basis for non-intervention and does so through the evidence of Dr Bornstein and Professor Higgs, which interprets images that were not in evidence and in circumstances where it was conceded that images were open to different interpretations. The parties were content to leave the evidence in that state. In the circumstances I must make an analysis as best I can, notwithstanding that I am unable to observe the described changes and other signs said to be evident on a viewing of those x-rays. 441. On the available evidence, I consider the criticisms made by the defendants, based on the x-rays, to be unpersuasive for the reasons that follow. 442. The findings on x-ray were open to differing interpretations by the various specialists who gave evidence of their views as to what was shown on those x-rays. In this regard it is noteworthy that when Dr Bornstein was eventually shown a full complement of images for comparison, he changed his views and acknowledged that rather than showing non-union, as he originally thought, the x-rays demonstrated delayed union. 443. Consequent upon this, I have concluded that I prefer the opinions of Dr Elliott, Professor Nade and Dr Donaldson which interpret the films as showing signs of progress towards union, thus justifying a more expectant and less aggressive management approach, namely progressive monitoring, rather than a decision to operate. I therefore prefer these more conservative views to those of Professor Higgs and Dr Bornstein, noting that fairly, Dr Bornstein was not prepared to be dogmatic in his critical analysis. 444. In preferring the opinions of Dr Elliott, Professor Nade and Dr Donaldson over the views of Professor Higgs as to the reasons for not operating on the plaintiff in the period between March and August 2004, I consider that Professor Higgs' differing views on the risk factors outlined by Dr Elliott, and which Dr Elliott had formed in the clinical setting, is an inappropriate basis upon which to reject Dr Elliott's more conservative management as being below the expected standard of care in the circumstances. I have come to this view because it was Dr Elliott who bore the professional risk arising from his management options, and the concerns that he expressed, as previously outlined, should not be readily dismissed in favour of a more aggressive non-clinical and hindsight surgical opinion, where there is legitimate room for a range of such opinions. 445. It is significant that in this period under review, Dr Elliott's perception was of an increased risk of delay of fracture healing due to cigarette smoking on the part of the plaintiff. In my view, that was a legitimately expressed clinical opinion that ought not be readily dismissed. The views of the experts to the effect that cigarette smoking would not itself contra-indicate any necessary surgery was expressed in general terms, and, when properly understood, does not serve to displace Dr Elliott's clinical assessment of the relevance of that factor, in the mix of factors relevant to the decision on whether or not to operate on the plaintiff because he was a smoker, when the other factors Dr Elliott mentioned were also taken into account. 446. Then there is the factor of Dr Elliott's clinical assessment that progress to union could take 4-6 months, taking the analysis up to about April 2004. In this regard, Professor Nade defended as reasonable, a further delay or waiting period of 2 – 4 – 8 weeks, which took the analysis up to about June 2004. 447. At the 7 May 2004 review of the plaintiff's fractures, Dr Elliott was of the view that there was slow progress to union. I consider that view must be seen as an encouraging sign justifying waiting a little longer to review progress over a further period of time. The note in the hospital records of the review on 11 June 2004 refers to better bone compaction. No one was able to definitively say this reading of the x-ray by Dr Elliott was wrong. In these circumstances, I do not consider that a decision for a further review in a month's time to have been unreasonable, in the context of that time frame. That position was defended by Professor Nade and Dr Donaldson as peer accepted practice. 448. Accordingly, it is evident that at the subsequent review on 9 July 2004, there was a note made by Dr Palapitige to the effect that there was progress to fracture healing. It was nevertheless decided that Dr Elliott should also review the patient. 449. The reason it took the plaintiff a further month to see Dr Elliott on 5 August 2004 was not explained in the evidence. In the context of the unfolding chronology of events concerning what was obviously expectant management, I do not consider that delay represents a valid source of criticism in the overall context and circumstances. 450. It is evident from the chronology of consultations that the defendants were trying to assist the plaintiff by managing his fractures in a conservative or non-aggressive manner for the reasons explained by Dr Elliott. The fact that the judgments made in this regard in retrospect or hindsight were either wrong or did not anticipate the slowness of the healing of the plaintiff's fractures, does not of itself mandate a finding of negligence in the circumstances. 451. In this regard, Dr Elliott rejected the assertion that he had opted for a wait-and-see approach. He also rejected the suggestion that he had procrastinated in his management of the plaintiff's condition. I accept his explanation and denial as being correct. The fact that the expectant management was ultimately shown to have been unsuccessful in producing an early union of the fractured tibia does not mean that the plan of management was below the standard that was expected in the circumstances. 452. Overriding all these considerations, it becomes clear that during the period March to August 2004, the defendants' management of the plaintiff's fractures were in accordance with peer professional practice accepted widely in Australia, as indicated by Professor Nade and Dr Donaldson. By reason of this fact a finding of negligence arising from the management is precluded by the operation of statute : s 5O of the CL Act. As to the suggestion for an electromagnetic bone stimulation device 453. The plaintiff sought to maintain an argument that he should have been treated with an electromagnetic bone stimulation device to promote early healing of his fractures. In this regard, I accept Dr Donaldson's evidence that such devices did not have a wide acceptance in the orthopaedic community and remained unproven as to their efficacy. I therefore reject the argument that the failure to provide the plaintiff with treatment by way of provision of such a device amounted to negligence on the part of the defendants. As to the claimed failure to advise the plaintiff of his treatment options 454. On behalf of the plaintiff it was argued that he was entitled to receive advice as to his treatment options because it was for him to decide which treatment he should have if there were options were available for consideration. 455. The practical significance of this argument was the contention that Dr Elliott's decision not to operate and to thereby allow the angulation or mal-rotation to develop into mal-union in external rotation with prolonged demobilisation, and therefore increased risk of ankle joint stiffness, was a matter upon which the plaintiff ought to have been consulted in order that he could have made an informed decision as to what was in his best interests in weighing up the risks and benefits of the treatment options that were available to him. The plaintiff argued that this was especially so since the decision not to operate in the short term necessarily meant that he would be required to have surgery at a later date to correct mal-rotation and mal-union. 456. The context in which this question arises is that Dr Elliott must be taken to have known that there was a risk of failure of the fracture to progress to union so as to require a consideration of an operative alternative for management. 457. The argument relied upon by the plaintiff was based on the now well settled principle that a patient is entitled to be given such information which a reasonable person in the position of the patient would be likely to attach significance: Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at [11]. 458. Whilst this principle was uncontroversial, it is noteworthy that there is no evidence that the plaintiff asked either of the defendants any questions concerning his treatment options such that this would have triggered a duty to provide advice in detailed form. The decision in Rogers v Whitaker centred around a questioning patient, as is evident from paragraph [11] of the decision in that case. According to the evidence in this case, that was not the position of the plaintiff in the circumstances presently under review. 459. In any event, I do not consider that the plaintiff's argument on this issue to have merit because the duty to advise and inform that was expounded in that case was expressed to be subject to a therapeutic privilege being reserved for a clinician in an appropriate case : Rogers v Whitaker at [11]. 460. Furthermore, the argument made on behalf of the plaintiff fails to pay due regard to the fact that the plaintiff's injury was a very serious one in which there were severe soft tissue injuries, the option of early surgery carried with it the risk of MRSA infection and concerns over blood supply to the bone and soft tissues of the leg at the fracture site. 461. These were matters that required medical analysis and the exercise of clinical judgment in circumstances where prospectively, at the time of removal of the fixation device, it was not known that bone union would ultimately turn out to be delayed. Dr Elliott had no reason to expect the complications of increased angulation and delayed union that were later encountered. As time went on between March and August 2004, I consider that the defendants, or more importantly, Dr Elliott believed, reasonably, as I accept he did, that there was progress to union, albeit slowly. I consider that in these circumstances, he was justified in taking a course that he believed would involve lesser risk to the patient as he explained. 462. In my view the argument raised by the plaintiff to the effect that earlier surgical intervention was required, is spurious. I consider this to be so because at the time the fixation device was removed, the plaintiff had a current MRSA infection which contraindicated an operation at that time. When angulation later emerged, it was inevitable that this would require a surgical correction of this problem. The matter at issue was the timing of that operation. Dr Elliott explained that that his clinical judgment was to first aim for bone union and to correct the deformity later. In that sense, the plaintiff ultimately had that operation when he was treated by Dr O'Carrigan. Dr Elliott formed the clinical opinion that it was not in the plaintiff's best interests to take the risk of surgery at an earlier stage for the reasons he stated and which I have summarised at paragraphs [126] to [138]. That was a clinical decision which was supported by Professor Nade and Dr Donaldson. 463. According to the medical evidence, the resultant stiffness in the plaintiff's right ankle joint due to prolonged immobilisation was a risk he was always going to encounter. In my view there is no satisfactory evidence that persuades me that this problem would have been avoided if he had surgery at the contended time. In coming to that view I do not ignore the opinion that it might have been easier to operate earlier rather than later. However, that said, the decision was a clinical one made at the time of management of the problem, not in the course of comfortable reflection after the event. The decision was also one made in circumstances where expert opinion identified not just one option and the decision made was within the array of available options. 464. The decision by Dr Elliott to operate later to correct an angulation deformity was defended by Professor Nade and Dr Donaldson as being in accordance with peer professional practice widely accepted in Australia. Although s 5P of the CL Act provides that s 5O does not apply to the provision of information, I consider that having due regard to the operative risks to the plaintiff from the contended procedure, as was described by Dr Elliott, there was no relevant omission to provide information about an argued opportunity to operate earlier. I consider this to be the case because Dr Elliott's clinical judgment was that he was not prepared to take the risk of an earlier performed operation, as is now contended for on behalf of the plaintiff. In my view the plaintiff's argument for the course now contended for is driven by impermissible considerations of hindsight, and not in accordance with the prospective analysis required by Vairy. 465. In this regard, a relevant admonition identified by Dr Donaldson was twofold. The first object to bear in mind was to do no harm by surgery. Dr Elliott has convincingly persuaded me that if he had operated as contended, the risks of the harm that he identified were significant and ought to have been avoided, in the best interests of his patient. The second object of performing the operation was to achieve a purpose. I accept Dr Elliott's explanation that the operation now contended for by the plaintiff was reasonably contra-indicated in February and March 2004. I also accept that in April, May and June 2004 there were promising signs of progress to union, which justified not operating on the plaintiff at those times. The fact that the decision to revise the previously decided course of management, and in August 2004, to opt for an operation, does not of itself mean that the earlier clinical decisions made by the defendants were made incorrectly, or were made negligently. 466. I therefore reject the plaintiff's submission based on an argued failure to provide him with advice concerning his treatment options. Conclusions on alleged breach of duty of care 467. For the reasons that I have outlined in the preceding paragraphs, I have concluded that neither of the defendants were in breach of the respective duties of care that they owed to the plaintiff. Consideration of Issue 4 - Causation 468. Notwithstanding that I have found that the plaintiff has failed to establish a relevant breach of duty of care on the part of either of the defendants, to allow for the possibility that I may have erred in making that finding, convention requires that I consider whether the plaintiff has discharged the onus of establishing legal causation for the harm he claims to have suffered : s 5E CL Act. 469. To succeed on the causation issue, the plaintiff must show that the negligence complained of either caused or materially contributed to the harm for which he claims damages. In this regard, the assessment of causation does not take place in a vacuum. All relevant events must be taken into account. Following my analysis of the relevant events, I have concluded that the plaintiff has failed to discharge the onus of establishing legal causation. My reasons for that conclusion are as follows. 470. The original injury sustained by the plaintiff on 11 October 2003 involved a very severe set of multiple, complex and comminuted fractures, the prognosis for which almost inevitably involved the plaintiff developing some lasting disability in the form of post-traumatic osteoarthritis, irrespective of the very good treatment initially received for those fractures. It was just a matter of time as to when this would occur. 471. Dr Elliott thought it was probable that the plaintiff's injury would result in post-traumatic arthritis in the coming years. Dr Bornstein agreed, stating that the risk of osteoarthritis developing was very high, including the possible need for an arthrodesis. Dr Donaldson was of the view that the plaintiff developed fracture disease or ankle joint stiffening in the absence of a want of care on the part of the defendants. He also identified the prospect that even with earlier surgery, complications may still have arisen requiring multiple attempts at connection, as was encountered by Dr O'Carrigan. Professor Nade said that fractures of the kind suffered by the plaintiff were always difficult to treat and that normal function does not occur even in the optimal treatment situation. Professor Higgs also acknowledged that the risk of osteoarthritis was an ever-present consequence of the injury. He said that the type of injury sustained by the plaintiff is generally accepted to have the worst results. He said that this type of injury had a 50 per cent chance of a good result even if well treated. 472. Professor Higgs was more optimistic as to the likely outcome stating that if the plaintiff had benefited from the earlier surgery in or about March 2004 he probably would have been expected to have regained normal or near-normal function of his right lower leg. I do not accept that opinion for two reasons. First, the opinion is not sufficiently explained by supporting reasoning : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 30; (2001) 52 NSWLR 705. Secondly, the opinion seems to me to be at odds with the statistic he cited that there was less than a 51 per cent chance of a good result if well treated. Thirdly, it assumes that Dr Elliott should have operated or arranged for an operation at a time when he considered, for stated reasons, the risk of surgery should not be undertaken. In doing so, he has effectively ignored the clinical advantage that Dr Elliott had on this issue. 473. For these reasons I prefer the views of Dr Donaldson and Professor Nade to those of Professor Higgs on this causation issue. 474. In my view, based on the medical evidence, these disabilities were most probably going to affect the plaintiff at some stage in his life, whether it was 2, 3, 5, 10 or so years after his injury, irrespective of any alleged negligence on the part of the defendants. 475. In view of the disabilities the plaintiff was likely to encounter in any event, absent any negligence of the defendants, it is incumbent upon the plaintiff to demonstrate through evidence, what materially different disabilities would probably have arisen as a result of the negligence. This is not an appropriate case for a simple application of the "but for" test of causation : Chappell v Hart [1998] HCA 55; 195 CLR 232 per Gummow J at [66]. Some cogent evidence of differentiating evidence was required. In my view, for the reasons I have identified, the abovementioned evidence of Professor Higgs did not satisfy that requirement. 476. In reviewing the evidence as to what possible difference in disability has arisen, it seems to me that even when viewed at the most advantageous level for the plaintiff's case, the evidence falls short of satisfactory proof. 477. The evidence for the plaintiff's causation argument is that following the initial treatment with the spatial frame, the fractures were held in a good position of reduction and alignment. This changed to a position of abnormal external rotation of the tibia and fibula when the spatial frame had to be removed due to infection and when a manipulation for equinus contracture was performed. There was no criticism of the decision to remove the spatial frame. The effect of that removal led to some fracture displacement causing a mal-rotation, which went on to mal-union. Given that the decision not to intervene surgically at that time, either on or shortly after 25 February 2004, was one that was reasonably open to Dr Elliott for the reasons I have already stated, I consider that it cannot be reasonably argued that the mal-rotation and the resultant mal-union were avoidable consequences of the plaintiff's injury. 478. Professor Nade pointed to the mal-rotation in the fractures that had healed by the time Dr O'Carrigan had operated to indicate that the remedial surgery undertaken by Dr O'Carrigan was not due to non-union or delayed union, as was clear from the findings of Dr O'Carrigan at operation, but was in fact due to the need to correct mal-rotation and mal-union, which was a by-product of the angulation that Dr Elliott did not treat surgically, initially due to infection and circulatory factors, and then later because of a perception of progress to union. Professor Nade argued that the first, and therefore the subsequent operations undertaken by Dr O'Carrigan for mal-rotation - because the first operation he performed was unsuccessful - would have been needed in any event. On an acceptance of that view, there is no reasonable basis for a causation finding to be made in the plaintiffs favour on that issue. 479. Apart from the evidence of Dr Bornstein and Professor Higgs, there is no evidence to support a finding that a delay in operating between 25 February 2004 and 11 August 2004 led to Dr O'Carrigan's procedure being unsuccessful, and therefore requiring the 4 further procedures that were performed. 480. The argument against the analysis put forward by Professor Nade was first stated by Dr Bornstein in the final paragraph of his report dated 4 September 2006, where he stated that the plaintiff would not have required the operation performed by Dr O'Carrigan if an earlier procedure had been carried out to correct the mal-rotation soon after it had appeared. Whilst logically, that view may be correct, it is only correct from the causation perspective if it is assumed that contrary to the level of risk assessment arrived at by Dr Elliott, that Dr Elliott should have nevertheless operated on the plaintiff in the period between February 2004 and August 2004, in the form of the procedure ultimately performed by Dr O'Carrigan on 25 January 2005. 481. The view expressed by Dr Bornstein in his report dated 26 February 2007 that the x-ray findings on 25 February 2004 dictated that an internal fixation procedure should have taken place, has to be viewed in the correct clinical context. That view does not adequately reflect the problem of the recent MRSA infection which was a concern to Dr Elliott. The relevant context was that it was Dr Elliott who was going to be responsible for managing the fracture. A further relevant context was that there was a range of surgical opinions, some being more prepared to undertake the risk of surgery than was Dr Elliott. In my view he cannot be criticised for his conservative approach to surgery where he was the one who would bear the responsibility of a poor result due to infection or the other circulatory and soft tissue injury factors that he had adverted to in his evidence. In this context it has to be recognised that there are a range of views over intervention, some surgeons being more readily prepared to intervene than others, as was observed by Dr Donaldson and Professor Nade. 482. Professor Higgs thought that the plaintiff should have been referred to Dr O'Carrigan in March 2004 and if this had occurred the plaintiff would have avoided some pain and suffering between March 2004 and January 2005 but he acknowledged the plaintiff would have only needed 3 further surgical procedures, namely, the osteotomy, the fixing of the frame, followed by removal of the frame at a later date and then the insertion and removal of fixation plates. 483. There are some difficulties with that view. First, there is the fact of Dr Elliott's more conservative approach which I have already discussed. Secondly, it is not necessarily correct to say that a referral to Dr O'Carrigan in February 2004 would have saved the plaintiff pain and suffering between March 2004 and January 2005, noting that when Dr Elliott referred the plaintiff to Dr O'Carrigan on 11 August 2004, Dr O'Carrigan operated on the plaintiff on 25 January 2005, some 23 weeks later. Thirdly, Professor Higgs has not explained in full the basis for his view that the other 2 procedures undertaken by Dr O'Carrigan would have been unnecessary. In my view this aspect of his opinion ignores the risk of complications of the kind that the plaintiff and Dr O'Carrigan actually encountered and which, in my view, cannot be ignored. In this regard, I consider Professor Higgs' analysis to be overly simplistic. For that reason I prefer the opinion of Professor Nade who correctly observed that one cannot assume there will be a perfect result from postulated surgery. 484. It is also of significance to recognise that Dr Bornstein's report dated 22 March 2007 was qualified by his statement on the second page to the effect that his interpretation of the x-ray indications of a fracture line representing non-union was just that, namely an interpretation that was not intended to be a definitive statement. I take this to mean that a clinical perspective was also required in the analysis. In this regard it is also of significance that Dr Bornstein changed his view as to the presence of non-union to that of delayed union. 485. Once it is recognized, as I have found it to have been the case, that Dr Elliott's decision not to operate, at the commencement of the period between February and August 2004 and during the course of that period, was defensible according to accepted peer practice widely accepted in Australia, it becomes apparent that the plaintiff was inevitably going to have a mal-rotation which was going to require corrective surgery of the kind that was later undertaken by Dr O'Carrigan. That is, the need for such latter surgery would have been inevitable if in fact the plaintiff found that he was unable to accept a degree of mal-rotation in the manner described by Dr Elliott. 486. It is for that reason that I prefer the analysis by Professor Nade to the analyses put forward by Dr Bornstein and Professor Higgs, as summarised above. 487. In this regard, it is significant that Dr Bornstein conceded in his first report that he could not be dogmatic in his view because of the absence of clinical information. It is also significant to note that neither Dr Bornstein nor Professor Higgs had the advantage which Dr Elliott had when he was dealing with the plaintiff's problems in the clinical setting. It is apparent from the evidence in this case that Dr Elliott's clinical advantage involved a first-hand understanding of the state of healing of the fracture, evidenced by the findings he was able to garner on a clinical and physical examination, as well as from the radiological examinations. 488. In this regard, it is also pertinent to note that Dr Elliott needed to undertake a very personal risk assessment in which he weighed the indications for, and the contraindications against, surgical intervention. This latter issue was a matter upon which Dr Elliott had to make his own decision at the time. Caution and fairness dictates that such a decision should not be criticised by a hindsight analysis that fails to adequately take this factor into account. 489. In my view, once it is recognized that the removal of the fixation device in February 2004 inevitably led to a degree of fracture displacement, and once it is recognized that not only was Dr Elliott justified in not operating earlier for the reasons he gave, but that he was then justified in his subsequent decision to proceed by expectant and monthly monitored management, by which it was hoped that union would occur over time, albeit with delay, and in the knowledge that mal-rotation would have to be corrected at a later date, if that problem remained significant and inconvenient to the plaintiff, then the plaintiff's causation case must fail. For the reasons I have given, I so find. 490. Before leaving the causation issues, there is another issue, which in my view, represents an obstacle to a causation finding in favour of the plaintiff. 491. In his report of 21 May 2007, Dr O'Carrigan stated that all of the plaintiff's disabilities were a direct result of the accident. Nowhere in his analysis did Dr O'Carrigan identify a level or layer of avoidable disability that arose due to any actions or alleged inactions on the part of either of the defendants. That view, coming as it does from a treating surgeon who had obviously undertaken a thorough evaluation of the plaintiff's problems before further operating upon him, is in my view, and insightful and insurmountable impediment to the success of the plaintiff's case on a causation analysis. 492. There are also 2 other matters that should be mentioned. There is the effect of the plaintiff smoking cigarettes and the possible impact of this on the healing process, as well as the effects of the plaintiff's fall on 19 January 2004, which was followed by pain in his right foot and ankle. The parties avoided detailed analysis of these two latter matters. This was so notwithstanding that in the case of the fall, Dr Donaldson and Professor Higgs mentioned this factual matter in passing in their reports. The matter was not followed up in evidence. In the absence of expert evidence on the significance of the fall, a commonsense analysis would indicate that the fall in question which gives rise to an inference of fresh injury because of a subsequent degree of pain, could be a matter of some significance to the process of fracture healing : Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538. In the case of the fall, it is pertinent to note that the unchallenged view of Dr Donaldson was that the plaintiff's stumble and fall may have caused loosening of the fracture components. Given the subsequent complaint of pain I consider that this is probably what happened, so as to give rise to a novus actus interveniens. During submissions it was acknowledged by the plaintiff that this matter was ignored in the evidence. Be that as it may, on the state of the evidence, I find it unnecessary to further analyse these other issues in view of my primary findings on the causation question. Consideration of Issue 5 – Contributory negligence 493. To allow for the possibility that I may have erred in making my findings on the issue of breach of duty of care, in conformity with convention, I set out my findings concerning the contributory negligence arguments that were raised by the defendants. 494. In my consideration of Issue 1, I have already found that the plaintiff was advised to stop smoking in the context of the slow progress that was encountered in respect of the healing of his fractures. The defendants claim that the plaintiff's failure to cease smoking in the period whilst he was under their care should base a finding of contributory negligence. The defendants carry the onus of establishing contributory negligence on the plaintiff's part. That onus on the defendants relates not only to establishing the factual basis of the conduct relied upon being characterised as contributory negligence, but it also requires that the defendants establish a relevant relationship of causative potency to the harm suffered by the plaintiff. 495. The task of apportionment of blame on account of contributory negligence is an evaluative exercise, in which matters of proportion, balance, emphasis and the weighing up of different consideration plays a part, as has been more recently restated in Evans v Lindsay [2006] NSWCA 354, following Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 at [10]; Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16 and Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552. 496. The task, essentially, is to allocate the causative potency of the respective breaches to be shared according to proportions that are just and equitable as was explained in Davies v Swan Motor Co. Ltd [1949] 2 KB 291 at 326 per Denning LJ. 497. In Pennington v Norris, the process of apportionment was explained by Dixon CJ, Webb, Fullagar & Kitto JJ at 16 to necessarily involve a comparison of culpability in the sense of a degree of departure from the standard of care of the reasonable man. In Podrebersek the nature of the task of reaching an apportionment was described as reaching a conclusion as to the relative importance of the acts of the parties in causing the damage. 498. With these principles in mind I approach the task of evaluating the causative potency of the plaintiff's actions compared to the actions of the defendants. 499. Notwithstanding my earlier finding that the plaintiff had been advised to cease smoking, I am not persuaded that the failure on the plaintiff's part to heed that advice until early to mid-August 2004 should be characterised as contributory negligence on his part, and even if it was, I am not persuaded that it was a potent cause of any ultimate harm suffered by him. I have reached this conclusion for the reasons that follow. 500. First, although the plaintiff's failure to heed advice to stop smoking is capable of supporting a finding of contributory negligence, on the evidence given in this case, I consider that the extent of the evidence elicited by the defendants is insufficient to base such a finding. In this regard, I consider that the evidence is insufficiently precise to establish an actual awareness on the plaintiff's part of the potentially deleterious effects of continuing to smoke cigarettes at a time when to cease to do so would have a materially different causative impact on the healing of the plaintiff's fractures. Whilst I am persuaded that the plaintiff was advised to cease smoking, the terms of the evidence adduced did not go so far as to impute to the plaintiff an actual or probable awareness, that continuing to smoke was likely to have had an adverse impact on the process of bone healing. The issue of the plaintiff's understanding of the matter has to be considered in such an evaluation. This is a matter upon which the defendants carry the evidentiary onus. In my view the circumstances outlined in the evidence contra-indicate a finding of contributory negligence in this case. 501. Secondly, at the time when Dr Elliott made his exclamatory note in the hospital records concerning the need for the plaintiff to stop smoking, it is clear that a substantial period of time had already elapsed during which a combination of states of non-union and delayed union had prevailed. In my view the defendants have failed to adduce definitive evidence either proving or tending to prove by reasonable inference, that at any time before May 2004, or after May 2004, and before August 2004, a refusal of the plaintiff to cease smoking would have had a material contributing causative impact on the further delay in bone union at those relevant times. 502. Thirdly, I consider that on the state of the evidence in this case, it would be unreasonable to draw an inference that during any of those periods, and at a time that was causally relevant, that a demonstrably material causative difference in outcome or level of damage, was due to avoidable fault on the plaintiff's part. In my view, a result in those terms has not been made out on the evidence. 503. I therefore find that the defendants have failed to discharge the onus upon them to establish contributory negligence on the part of the plaintiff. F. FINDINGS – DAMAGES ISSUES 504. In the paragraphs that follow, I set out my findings on the issues of the plaintiff's injuries, treatment, rehabilitation, mitigation, disabilities and probable remaining life span. Injuries 505. The undisputed evidence is that the plaintiff sustained a most severe comminuted orthopaedic fracture of his right lower leg and ankle, classified as a Type 3 Pilon fracture. This injury resulted from a high energy impact of the plaintiff's right foot with the ground, shattering the ankle bones into many fragments, disrupting the articular surface of the right ankle and also resulting in fractures to the right fibula and the distal tibia near the ankle. Fortunately, the indisputably skilled primary treatment received by the plaintiff at the hands of the defendants avoided the plaintiff facing the need for an amputation of his right lower limb. 506. The plaintiff's ankle fracture was fixed by the insertion of AO screws, following which it healed. The fractured fibula went on to unite and heal within an expected time range. Unfortunately, the healing time for the fractured distal tibia was extended. 507. In these circumstances, where there is a claim that subsequent delays in affording the plaintiff appropriate surgery in the follow-up period during which the fractures from the original injury were expected to have healed, it becomes necessary to identify the specific additional injury sustained by the plaintiff as providing a basis for an award of damages. 508. The statement of particulars filed on behalf of the plaintiff claimed that for the purpose of these proceedings, the plaintiff has suffered 3 relevant injuries. The particulars of those injuries were a delayed union of the tibia, mal-rotation of the tibia and psychological trauma. 509. In my view the only reasonably identifiable injury for which the plaintiff could legitimately make a claim would be for an allegedly avoidable prolongation of an un-united state of the tibial fracture. I have found that to the extent that there was a portion of the tibial fracture that had remained un-united up until 11 August 2004, the actions of the defendants did not contribute to that state. In my consideration of Issue 2, I have found that the plaintiff's right distal tibial fractures had united by 25 January 2005. For the reasons I have already outlined, I have not accepted the plaintiff's argument that there was an avoidably long delay in affording the plaintiff operative treatment. 510. In my view, on the state of the evidence, it cannot be reasonably argued on behalf of the plaintiff that the defendants caused either non-union or delayed non-union of the plaintiff's distal tibial fracture. Similarly, I consider that the mal-rotation of the plaintiff's tibia cannot be reasonably attributed to any fault on the part of the defendants. It is understandable that the plaintiff suffered psychological trauma as a result of his injuries and the resultant prolonged period of treatment, but I do not see any basis on the evidence to attribute the blame for this to the defendants. Treatment 511. The plaintiff's ankle fractures were surgically treated by the insertion of some AO fixation screws to hold the fragments in place whilst bone healing occurred. The result has been a restoration of the position of the ankle bones in a good anatomical position notwithstanding the earlier disruption of the articular surface of the ankle joint. 512. The fractured long bones of the plaintiff's right leg were treated by immobilisation in an external fixation device variously called a Hoffman or Taylor spatial frame which fixed the fractured tibia and fibula at appropriate positions. The progress of the healing of these fractures was monitored by successive x-rays taken at periodic intervals determined on review of the plaintiff at the hospital fracture clinic. 513. The fixation device was appropriately dynamised to enable the plaintiff to load or weight bear to promote bone healing. Unfortunately the pin sites for the fixation device became infected with MRSA which required the fixation device to be removed. Thereafter, from February 2004 until August 2004, the plaintiff used crutches pending further periodic reviews to check on progress of bone healing. 514. The foregoing description of the plaintiff's treatment, which was supervised by the defendants, did not attract any professional criticisms from any orthopaedic or other peer practitioner in respect of the period up to the end of February 2004. 515. The plaintiff was referred for tertiary assessment, advice and management in August 2004. He was operated upon by Dr O'Carrigan on 5 occasions, namely, 24 January 2005, 20 July 2005, 12 August 2005, 20 July 2006 and 8 November 2007. All of these operations were for the correction of a rotational deformity that had been present since the removal of the fixation device on 9 February 2004. 516. In conjunction with this treatment the plaintiff took significant amounts of pain killing medications. Rehabilitation 517. The evidence discloses that following his referral to Dr O'Carrigan for the described treatment, he has had physiotherapy treatment, he has undertaken exercises and he has generally made appropriate efforts to improve his position in order to return to work on lighter duties in January 2007. There is no evidence that the plaintiff failed to avail himself of, or co-operate with, any offered rehabilitation advice or assistance. Mitigation 518. I consider that the plaintiff has taken reasonable steps to mitigate his situation by following most treatment recommendations and by obtaining work in January 2007, albeit on lighter duties. Although the plaintiff has apparently declined to attend a further consultation with Dr O'Carrigan, I do not consider that his disinclination to do so amounts to an unreasonable failure to mitigate his loss. I take this view because there is no evidence of a benefit to him with regard to such a consultation. He has obviously had enough contact with surgeons. In my view this cannot be reasonably said to be an unreasonable failure to mitigate, because in my view, subjective factors can be taken into account. Disabilities 519. The approach taken on behalf of the plaintiff with regard to his ongoing disabilities is to claim that these were due to the alleged negligence of the defendants. This is evident from the way in which the disabilities are framed in the statement of particulars filed on behalf of the plaintiff. 520. The plaintiff asserts that he has had 3 additional operative procedures carried out on him in order to achieve union of his right tibia. He claimed that these procedures were unnecessary. The plaintiff also claims that he has been left with mal-rotation of his right lower leg which would have been avoided if he had been treated in the manner contended. He claims that as a result of these matters, he has been put through the trauma of unnecessary surgery, he has been left with significant physical restrictions, including difficulty with all forms of physical activity, an inability to run or play active sport, pain and discomfort when walking up and down stairs and difficulty negotiating uneven ground. He claims his right lower limb carries the scars of unnecessary surgery. He also claims the need for domestic assistance and assistance with handyman and gardening activities. He also claims he has suffered severe depression. 521. The reports of Dr Harvey and Dr Davis deal only with the results of the primary injury and do not differentiate between the effects of the primary injury and the additional effects of the alleged negligence. There is no medical evidence concerning treatment of the plaintiff for depression. 522. It is incumbent on the plaintiff to establish that his claimed disabilities are as a result of alleged inadequate treatment at the hands of the defendants rather than such problems being due to the ordinary, natural and probable consequences of the primary injuries. 523. I have not accepted the opinion of Professor Higgs that the plaintiff would have probably had a much better predicted outcome if there had been an earlier surgical intervention in the period 25 February 2004 to 11 August 2004. I have stated my reasons for that finding in setting out my causation findings. 524. For the reasons I have outlined with regard to the causation component of the claim, I consider that the plaintiff has failed to establish these matters by evidence. Accordingly, these matters remain as unproven allegations. It is insufficient for the plaintiff to merely complain of these disabilities as that approach does nothing to serve to discharge the onus of proof that he carries with regard to showing these matters are the avoidable consequences of the treatment of which he complains. 525. In my view, the plaintiff has failed to establish by evidence, any disabilities that either have in the past, or continue at present, to afflict him in a way that would not have occurred in any event, if he had been afforded the treatment he contended he ought to have been given. In this case the plaintiff carries the evidentiary burden of establishing the relevant difference in the level of his claimed disabilities so as to differentiate the effects of the primary injury from the subsequent events for which he claims damages for negligence : Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. In my view the plaintiff has not discharged that evidentiary burden. This is a matter of some significance to the plaintiff's claim for damages for non-economic loss and other heads of damage. Employment 526. I accept the evidence of the plaintiff and his employer Mr Stennard, to the effect that the plaintiff no longer has the capacity to carry out the full duties of a tradesman plumber or any other work that requires the exertion of unrestricted physical mobility, strength, agility and dexterity. I accept the evidence of Mr Stennard that the plaintiff is being reasonably remunerated in the labour market at $600 per week net on account of his restricted earning capacity. I also accept the evidence of Mr Stennard that the reasonable measure of the plaintiff's lost earning capacity is to be identified as being at $600 per week net. I regard that sum as being conservative as it does not include any provision for overtime. Domestic effects 527. I accept the evidence of Mrs Peterson that following his injury, the plaintiff was unable to fully care for himself for a time, and this required that she provide him with domestic assistance in the manner and to the extent she described in her evidence. This was initially in the form of 24 hour on call care for the first few weeks, followed by an average of about 25 hours per week from the end of October 2003 until the end of January 2007, a period of about 169 weeks. I will analyse the significance of this in my reasons concerning the plaintiff's claim for domestic assistance. Plaintiff's probable life span 528. Having regard to the current prospective life tables, at age 30 years, this being the plaintiff's age at trial, in the absence of any medical or other evidence suggesting a decreased life span, I assess the plaintiff's life expectancy, which is by definition a statistical estimate or average, to be in a rounded down estimate of a remaining 55 years. G. ASSESSMENT OF DAMAGES 529. Although I have found that the plaintiff has not succeeded in establishing an entitlement to damages on account of a failure to establish causation, in accordance with convention, to allow for the possibility that on an appeal it may be determined that my findings on causation were made in error, I now turn to an assessment of the heads of damage claimed by the plaintiff. Non-economic loss 530. On behalf of the plaintiff, Mr Hirsch submitted that the "injuries and disabilities" sustained by the plaintiff merit an assessment of damages for non-economic loss in the range of 40 per cent to 45 per cent of the most extreme case ["MEC"] pursuant to section 16 of the CL Act. The current indexation of s 16 damages, equates this to a range of between $189,500 to $213,000. 531. On behalf of the defendant, Mr Fordham submitted that on an assessment of this head of damage, the appropriate percentage of a MEC would be 25 per cent. After allowing for the statutory deduction, this currently quotes an amount of $31,000. 532. In view of the disparity between the submissions, the underpinning assumptions requires evaluation. 533. Damages pursuant to s 16 of the CL Act are intended to compensate the plaintiff for pain and suffering, loss of enjoyment and the amenity of life, and to place the plaintiff in the position he would most likely have been in, but for the negligence of which he has complained. In this context, it is necessary to identify the position the plaintiff would most likely have been but for the claimed negligence. 534. The unchallenged evidence of Dr Elliott, which I have accepted, was that the plaintiff's original ankle fracture was very severe, on the scale of 8.5 out of 10, where a score of 9 would have led to an amputation. The fracture and the related soft tissue injuries were certainly very complex. The recollection of Dr Elliott was that there were as many as between 25-40 individual fragments of bone. 535. Further, in the convalescence period, in January 2004, which was well before considerations were required for further intervention, an issue arose with regard to an infection at the pin sites. That infection consisted of a penicillin resistant staphylococcus aureus infection, otherwise known as MRSA or golden staph, which was associated with infection, pain and increased discharge at the surgical wounds. There was no criticism of Dr Elliott's decision to advise removal of the fixator devices at that stage because the continued presence of a rigid external fixation potentially inhibited the formation of callous and therefore, bone union. 536. Further, as at March 2004, there was no criticism of Dr Elliott's opinion not to consider performing an osteotomy procedure to correct angulation at that stage because it would have delayed progress and would have led to further immobilisation. At that stage, it was therefore clearly apparent that in the coming weeks or months, a further surgical procedure of the kind carried out by Dr O'Carrigan would have been necessary to correct the angulation problem that emerged following the removal of the external fixation device. 537. In my view the evidence does not permit a reasoned analysis of whether the first operation conducted by Dr O'Carrigan, if carried out earlier, say between March and May 2004, or even before August 2004, or before January 2005 for that matter, would have obviated the need for the plaintiff to have the subsequent procedures that were identified as having been carried out by Dr O'Carrigan on 24 January 2005, 20 July 2005, 12 August 2005 and 20 July 2006. 538. It is in this context, that a differential analysis of the plaintiff's complaints of disability is required to be undertaken in order to achieve an understanding and definition of what most probably would have been the case concerning his likely level of disability, if the initial treatment carried out by Dr O'Carrigan had been carried out within the time frame that was contended on behalf of the plaintiff. 539. In my view, the state of the evidence in this case does not reasonably permit that analysis, other than by impermissible speculation : Luxton v Vines [1952] HCA 19. 540. I have already summarised the physical, cosmetic, functional, psychological and emotional consequences for the plaintiff of his injuries and resultant disabilities. That summary appears between paragraphs [519]-[525] of my reasons. In my view the evidence does not reasonably permit a differentiation within those disabilities to segregate for assessment purposes which of them relate to the original injury and which of them should be regarded as having arisen in whole or in material part to alleged negligence. Accordingly, in my view, there is no rational basis upon which to base a finding that involves such differentiation. This is a matter upon which the plaintiff carries the onus of proof. I find such proof to be absent from the fabric of the evidence in this case. 541. Other than through what I consider to be insupportable speculation, the medical evidence in the proceedings offers no guidance on this issue. 542. In my assessment the plaintiff has failed to provide any evidence that would, by reasoning, demonstrate a relevant difference in his situation if the contended treatment had been afforded to him, so as to base an assessment of damages for non-economic loss based on the considerations required by s 16 of the CL Act. I come to this view because of my acceptance of the evidence of Professor Nade that the procedures performed on the plaintiff for mal-rotation would have been required in any event, noting that they were not performed for any non-union or delayed union. 543. However, in coming to that view, I have to consider the possibility that I may be in error in my findings in this regard such that an alternative assessment is necessary. In order to allow for that possibility, for the purposes of an alternative assessment, in the absence of evidence to differentiate the plaintiff's present disabilities from those due to his original injury, I accept the appropriateness of the MEC concession made on behalf of the defendants, namely 16 per cent of a MEC, which equates to a monetary assessment of $31,000. 544. Accordingly, if the plaintiff had been entitled to damages for non-economic loss, I would have assessed such damages in the conceded amount of $31,000. Past loss of earnings 545. The plaintiff makes a claim for past loss of earning capacity in the net sum of $145,400. 546. The basis upon which the plaintiff's claim proceeds is that at the time of his accident he was earning $600 per week net as a plumber. It is claimed that absent the negligence of the defendants, the plaintiff would have ordinarily returned to work after about 7 months following the accident, namely around the end of October 2004. The plaintiff claims this is a conservative estimate that allows for even further time than that which was anticipated in the evidence of Dr Bornstein for recovery. 547. The quantification of the plaintiff's claim for past economic loss proceeded upon an imprecise basis, mainly that in each of the financial years following his accident, up until the date of the commencement of the trial, his weekly earnings would have increased by about $100 per week net having regard to award wages, increased skill and experience. 548. On this approach the plaintiff claims that his probable net earnings, but for the alleged negligence of the defendants, would have been of the order of $188,000. The submission concedes that the plaintiff earned mitigatory earnings in the 2008 and 2009 financial years totalling $42,600, thus identifying a claimed net loss of $145,400. 549. Whilst the evidence for the approach contended on behalf of the plaintiff is imprecise, I consider the approach to be nevertheless reasonable. 550. On behalf of the defendant Mr Fordham submitted that at best, the plaintiff's claim for past loss of earnings should be limited to 6 months at $600 per week net or $15,600. 551. The basis for that submission was that the plaintiff's underlying injury, for which he was not entitled to compensation, had the potential to keep the plaintiff out of the workforce for a considerable period of time, during which he would be undergoing continuing post-operative recuperation, including recuperation from multiple surgical procedures. These procedures at the very least comprising the original operation and the subsequent fixator removal, in respect of which there was no complaint, and a further procedure for tibial osteotomy, which may or may not have been successful and may or may not have required subsequent revisionary surgery, as had been performed by Dr O'Carrigan. 552. In view of the inherent imprecision in the exercise of assessing past loss of earning capacity, I consider that a more conservative approach than that advocated on behalf of the plaintiff is required in order to accommodate the point made by the defendant, but not in terms that are as constrained as that which has been argued on behalf of the defendant. 553. In taking this approach, and in adjusting the figures argued on behalf of the plaintiff to accommodate this approach, I considered that it was more likely than not that the plaintiff would have returned to his trade as a journeyman plumber, but with the present restrictions on the physical tasks he could carry out in that employment. I consider that he would have returned to such work by about the beginning of January 2005, at which time he probably would have been earning income of the order of $600 per week net. On that approach, the plaintiff's submitted calculation for past lost earnings of $145,400 are adjusted downwards to $129,800. 554. If the plaintiff had been entitled to an award of damages for past loss of earnings, I would have assessed such damages in the amount of $129,800. Future loss of earning capacity 555. On behalf of the plaintiff it was submitted that the claim for future loss of earning capacity should be assessed in two parts, the first part being until the age of 55 years and the second being from age 55 years to the age of 65 years. 556. In developing that submission, it is claimed that as a result of the negligence of the defendants, the plaintiff will never be able to work as an able-bodied plumber, whereas if he were able to do such work, he would be earning around $1200 per week net as indicated by Mr Stennard, instead of the $600 per week net which he presently earns. The plaintiff contended that in his injured state, he will not be able to work after the age of 55 years, and as a result, during the last 10 years of his working life, it is unlikely that he will earn any income. That submission was based on the evidence of Dr Davis, whose opinion I accept. 557. The plaintiff's submission was for damages for future loss of earning capacity to be assessed at $350,162 however that calculation contained a mathematical error. When corrected the amount identified was $423,245. The plaintiff's submitted calculation omitted any allowance for the required discount in respect of possible future adverse vicissitudes. If a conventional approach was taken to vicissitudes, namely a discount of 15 per cent, this would result in an assessment in the sum of $359,758. 558. I consider that if the plaintiff had been able to demonstrate that the scenario for a reduced earning capacity, as was identified by Dr Davis, was due to the negligence of the defendants, then the claim would have to proceed in a two-stepped calculation as follows. 559. The first component of the claim is for a future loss of $600 per week, being the difference between the potential earnings identified by Mr Stennard at $1200 per week net and the plaintiff's actual net earnings of $600 per week. If it had been shown that this level of reduced earnings was due to the negligence of the defendants then the projection of $600 per week at 5 per cent over 25 years (x 753.6) yields the amount of $452,160 before discount for adverse vicissitudes. 560. The second component of the claim, being the remaining 10 years to age 65 years, should also be projected at $1200 per week over those 10 years but deferred for 25 years. The projection of $1200 per week over 10 years at 5 per cent (x 412.9) and discounted by 25 years at 5 per cent (x 0.295) yields an undiscounted amount of $146,166. 561. The combined undiscounted total of these calculations amounts to $598,326. A conventional discount of 15 per cent on these calculations reveals a calculation of $508,577. 562. In contrast, on behalf of the defendants, it was submitted that the plaintiff has not demonstrated any entitlement to future loss of earning capacity. The basis of that submission was that it has not been shown that, from the perspective of demonstrating a difference in his future earning capacity, the plaintiff is in a different position now to the position he would most likely have been in but for the negligence of the defendants. In turn, that submission is based upon the evidence of the severity of the original injury, for which there could be no claim, and the inherent uncertainty over whether if treated in accordance with the argued standard, the ultimate outcome for the plaintiff would have been materially different. 563. There are imponderables and difficulties associated with both of these approaches on the evidence in this case. This requires an application of s 13 of the CL Act concerning the plaintiff's most likely circumstances but for the injury, which in these circumstances, must mean but for the negligence. 564. In my view, recognizing the effects of the original injury, which was severe, I have to consider the possibility that, absent the negligence of the defendants, the plaintiff would have continued to work as he normally would have in his trade after the age of 55 years, consistent with the opinion of Dr Davis, but thereafter, the plaintiff may develop osteoarthritis in his injured ankle such that he would not be able to work beyond that time unless he had an understanding employer willing to give him light duty work. 565. Given the imponderable nature of this exercise, I consider the appropriate method for assessment of the plaintiff's future loss of earning capacity to be an acceptance of the previously identified components of the figure of $508,577 but to treat the discount for vicissitudes in two stages to reflect the increasing risk of unemployability due to the natural effects of the plaintiff's original injury as the plaintiff ages. 566. On that approach, I consider that in respect of the first period up to age 55 years, for which the loss of capacity is assessed at $452,160, the appropriate discount for possible adverse vicissitudes is 20 per cent : s 13(2) of the CL Act. This yields a figure of $361,728. 567. In respect of the second period, between ages 55 years and 65 years, for which the loss of capacity to earn is assessed at $146,166, I consider the appropriate discount for possible adverse vicissitudes to be 40 per cent : s 13(2) of the CL Act. This yields a figure of $87,699. 568. On this approach I consider that a reasonable assessment of the plaintiff's claim for future loss of earning capacity to be a combination of these two discounted amounts, namely, $449,427. 569. If the plaintiff had been entitled to an award of damages for future loss of earning capacity, I would have assessed such damages in the amount of $449,427. Past loss of superannuation 570. The convention is for the loss of past employer funded superannuation to be assessed at 11 per cent of the amount assessed to represent past loss of earning capacity. Accordingly, applying that approach, 11 per cent of $129,800 is $14,278. If the plaintiff had been entitled to an award of damages for past superannuation losses, I would have assessed the value of the plaintiff's past superannuation losses to be in the sum of $14,278. Future loss of superannuation 571. Consistent with the approach taken with respect to the assessment of past loss of employer funded superannuation, applying the same convention to the calculation of future superannuation losses, 11 per cent of $449,427 yields an amount of $49,436. This sum has already been discounted for vicissitudes. If the plaintiff had been entitled to an award of damages for future superannuation losses, I would have assessed the value of the plaintiff's future superannuation losses to be in the sum of $49,436. Past domestic assistance 572. The plaintiff makes a claim for the value of past gratuitous services provided to him by his mother in the form of domestic assistance, transportation and emotional support. 573. The claim is that the plaintiff received from his mother the benefit of 24 hour per day on call care for about one week after each surgical procedure, followed by regular care of a less intensive level of about 15 hours per week. On this basis the plaintiff argued that an appropriate allowance for past domestic assistance would be 25 hours per week from October 2004 to January 2007 at the rate of $20 per hour. This was the equivalent of 2.25 years or 117 weeks, which at $20 per hour was quantified at $58,500. 574. In respect of the second period mainly for eight weeks between November 2007 and December 2007 the plaintiff makes a claim for 15 hours per week at $20 per hour namely $2400. 575. The total claim made by the plaintiff is therefore in the sum of $60,900. As the hourly rate in respect of this claim does not exceed the amount prescribed by s 15 of the CL Act, I consider that the suggested hourly rate is reasonable. 576. On behalf of the defendants, it was submitted that an allowance for past care should be limited to 6 months at 15 hours per week calculated at the rate of $20 per hour. The basis of that submission seemed somewhat arbitrary. 577. Consistent with my findings concerning the nature and extent of the plaintiff's disabilities, I consider that no entitlement has been shown for any negligence caused need for assistance. If I am ultimately found to have been incorrect in relation to this finding, then I consider that the alternative submission as identified by the plaintiff would be the appropriate alternative finding. Accordingly, if the plaintiff had been entitled to damages for past domestic assistance, I would have assessed such damages in the amount of $60,900. Future domestic assistance 578. The plaintiff makes a claim for the provision of damages for future domestic assistance on a paid commercial basis. The claim is for 3-4 hours per week in respect of heavy household work, repairs and home refurbishments at a cost of $25 per hour or $75 per week. The plaintiff's submission projects the sum of $75 per week over a 55.25 year life span to identify a projected sum of $106,500 using a multiplier of 1420 but reducing the projected sum to allow for the possibility of improvements in the plaintiff's condition after possible eventual arthrodesis of the ankle. The submission is in the reduced sum of $90,000. 579. On analysing the plaintiff's submission it is apparent that the incorrect multiplier has been used. The 5 per cent multiplier for 55 years is 996.4. Using this multiplier, the corrected projected figure is revealed to be $74,730. Applying a 15 per cent reduction, which appears to be the proportion used in the preceding submission of the plaintiff, this yields an adjusted submission of $63,520. 580. I consider that the rate of $25 per hour for these projections is reasonable as it is less than the current maximum rate provided by s 15 of the CL Act, and by definition, must therefore be regarded as being reasonable. 581. The basis upon which the plaintiff makes his submission for an entitlement to such domestic assistance is the difficulty the plaintiff has described with physical activities. 582. The defendants submitted that the plaintiff has not demonstrated any entitlement to damages for future domestic assistance. 583. In my view the submission made by the defendants is too simplistic and pays no regard to the difficulties the plaintiff is likely to encounter in the future in connection with the running of a home. That said, I consider that an allowance of three hours per week is excessive in the circumstances because of an absence in the evidence of any degree of precision by which to differentiate between the needs the plaintiff would probably have incurred for such assistance absent negligence. Notwithstanding the state of the evidence, I consider that an allowance should be made for such assistance as a lifetime average. I consider that an appropriate adjustment would be to reduce the revised amount claimed by the plaintiff by 25 per cent. In rounded figures this reveals a discounted allowance of $45,000. 584. If the plaintiff had been entitled to an award of damages for future domestic assistance, I would have assessed such damages in the amount of $45,000. Future treatment 585. The plaintiff makes a claim for the cost of treatment in the rounded down sum of $8000. The basis of this claim is the opinion of Dr Davis dated 19 January 2008 in which Dr Davis spoke of the eventual outlook for the plaintiff to be, the need for an arthrodesis, which he costed at $10,500. Dr Harvey considered the cost of this possible procedure to be $20,000. 586. The defendants did not concede any entitlement to damages for future treatment. 587. In my view, the evidence does not permit the conclusion that the plaintiff will need the identified procedure as a result of the negligence of the defendants. However, that is not to say that he will not require some possible form of future treatment, absent the negligence of the defendants. On the state of the evidence I consider that a buffer against the possible cost of additional future treatment is warranted. I assess that buffer in the sum of $3000. 588. If the plaintiff had been entitled to damages for future treatment, I would have assessed such damages in the amount of $3000. Past out-of-pocket expenses 589. The plaintiff makes a claim for past out-of-pocket expenses in the amount of $25,000 being the cost of the first operation performed by Dr O'Carrigan, which was paid for privately by the plaintiff. This sum was paid by the plaintiff in January of 2005. 590. The plaintiff makes a claim for an additional sum for out-of-pocket expenses in the sum of $4840, being $20 per week for 242 weeks from October 2004, comprising painkilling medication which included Voltaren, Panadol, Tramal and Panadeine Forte. 591. These claims are in the total sum of $29,840. 592. The plaintiff claims that he would not have had to incur the fees for the procedure carried out by Dr O'Carrigan if the procedure had been carried out by Dr Elliott as originally planned but at an earlier time. This was because as a public patient, the plaintiff would not have had to pay such fees. 593. The defendants made no concessions on the claimed out-of-pocket expenses. 594. In my assessment, the plaintiff's submission is correct. I find that if the operation carried out by Dr O'Carrigan had been earlier performed by Dr Elliott the plaintiff would not have had a liability to pay the identified additional sum. 595. In my view, the evidence does not permit a finding that the medications claimed by the plaintiff in the sum of $4840, argued to be due to the negligence of the defendants and would not have been necessarily incurred absent the negligence of the defendants. Accordingly I do not allow that amount. 596. If the plaintiff had been entitled to an award of damages for out-pocket expenses, I would have assessed such damages in the amount of $25,000. Interest on paid out-of-pocket expenses 597. As the plaintiff is not entitled to an award of damages, an assessment of the claim for interest does not arise. Summary of damages assessment 598. My assessment of the plaintiff's damages is summarised as follows: (a) Non-economic loss $31,000 (b) Past loss of earnings $129,800 (c) Future loss of earning capacity $449,427 (d) Past loss of superannuation $14,278 (e) Future loss of superannuation $49,436 (f) Past domestic assistance $60,900 (g) Future domestic assistance $45,000 (h) Future treatment $3,000 (i) Past out-of-pocket expenses $25,000 (j) Interest on paid out-of-pocket expenses $ Nil Total $807,841 H. DISPOSITION & ORDERS Disposition 599. As I have determined the liability and causation issues in favour of the defendants there must be a verdict for the defendants. In accordance with convention, to allow for the possibility of a reversal of my causation finding on appeal, I have assessed damages in the amount of $807,841. The defendants are entitled to a verdict and judgment in their favour, together with an order for costs. Orders 600. I make the following orders: (a) Verdict and judgment for the defendants; (b) The plaintiff is to pay the defendants' costs on the ordinary basis unless otherwise ordered; (c) The exhibits may be returned; (d) Liberty to apply on 7 days notice if further orders are required. 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.