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First published in the Australian Health Law Bulletin 2026 and reproduced with the kind permission of Lexis Nexis

The New South Wales (NSW) Court of Appeal (Court of Appeal) recently dismissed an appeal by a plaintiff alleging that his orthopaedic surgeon had failed to warn of risks associated with total hip replacement and was negligent in his surgical technique and post-operative care. This case is an interesting example of the weight placed on contemporaneous notes, in a matter where the factual findings played an important role.

Background

Taylor v Woodgate saw the Court of Appeal, (per McHugh JA with Harrison CJ at CL and Free JA agreeing) called upon to revisit aspects of the decision in NSW District Court (NSWDC) decision in Taylor v Woodgate, in which Weber SC DCJ had dismissed a claim by the plaintiff/appellant alleging failure to warn of risks associated with total hip replacement, negligent surgical technique in revision surgery and negligence in post-operative care.

The respondent orthopaedic surgeon (Dr Woodgate) treated the appellant (Mr Taylor) in the period of 2010 to 2019. On 10 May 2011, Dr Woodgate performed surgery to replace the appellant’s left hip with prostheses, including an MSA size 2 femoral stem (described as a short stem device). It was not in dispute that by 22 June 2011, the stem had moved relative to the femur. This led to the revision surgery, which the respondent performed on 30 August 2011. The stem was left in situ. The respondent provided the appellant with ongoing management of various conditions thereafter.

On 28 March 2019, the respondent advised the appellant that there had been loosening of the hip prosthesis and that, in his view, the appellant required another revision procedure. The appellant consulted with another orthopaedic surgeon, Dr Neil, who also recommended revision surgery. That surgery was performed by Dr Neil on 27 April 2019 (and a more conventional stem prosthesis was inserted).

Issues on Appeal

The notice of appeal [provided six] grounds:

1. “The primary judge erred in overlooking or rejecting radiological expert evidence as to what imaging obtained during the period from August 2011 to 2017 showed as to loosening or movement in the appellant’s femoral stem.”
2. “The primary judge erred in finding that there was no loosening or movement in the appellant’s femoral stem from August 2011 to 2017.”
3. “The primary judge erred in finding that the respondent discharged his duty of care to the appellant, when checking the femoral stem for loosening during the revision procedure on 30 August 2011.”
4.  “The primary judge erred in finding that the appellant would not have achieved a materially better outcome even if a conventional femoral stem had been implanted during the revision procedure on 30 August 2011.”
5.  “The primary judge erred in finding that the respondent discharged his duty of care to the appellant in consultations between the revision procedure on 30 August 2011 and prior to the last consultation on 28 March 2019, despite the respondent in each consultation between that period not detecting, investigating or recommending revision surgery to treat signs of loosening or movement in the femoral stem.”
6. “The primary judge erred in finding that the appellant would not have achieved a materially better outcome even if a conventional femoral stem had been implanted during the period from 30August 2011 until May 2019.”

The Court of Appeal distilled these into three “dispositive questions” in the appeal:

1.  Was the stem “loose” at the time of the revision surgery (Grounds 1 and 2 [of the appeal])?
   If the answer is no, the appellant accept[ed] that his claim of negligence in relation to the performance of the revision surgery (Ground 3) must fail. Conversely, if the answer is yes, the respondent accept[ed] that a failure to identify that the stem was loose when performing the revision surgery would have been negligent.
2.  Did the stem become loose at some time in the period between the revision surgery and 2017 (Grounds 1 and 2 [of the appeal])? If the answer is no, the appellant accept[ed] that his claim in relation to [Dr Woodgate’s] ongoing management of his hip (Ground 5 [of the appeal]) must fail. If yes, it [was] necessary to answer Question 3.
3. In the period after the [30 August 2011] revision surgery until 2017, would an orthopaedic surgeon exercising reasonable care have detected or investigated whether the stem was loose and recommended further revision surgery (Ground 5)?

The Court of Appeal ultimately found that the answer to each question should be no, hence the appeal was dismissed.

Breach of duty and the risk of harm
Whether the respondent breached his duty of care that he owed to the appellant involved the application of s 5B of the Civil Liability Act 2002 (NSW) (CLA):

5B General principles

1. (1) A person is not negligent in failing to take precautions against a risk of harm unless —
   • (a) the risk was foreseeable (that is, it is a risk of
     which the person knew or ought to have
     known) and
   • (b) the risk was not insignificant and
   • (c) in the circumstances, a reasonable person in the person’s position would have taken those precaution
2. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
   • (a) the probability that the harm would occur if care were not taken
   • (b) the likely seriousness of the harm
   • (c) the burden of taking precautions to avoid the risk of harm
   • (d) the social utility of the activity that creates the risk of harm

In the decision of the NSWDC, the primary judge did not expressly refer to s 5B. Nor did the primary judge expressly identify the relevant “risk of harm” that the respondent was said to have failed to take precautions against for the purposes of that section.

On appeal, only one of the pleaded risks of harm was considered to be relevant. This was described as the third risk—that there was a risk that short stem femoral prosthetic might not become fixed solidly within the femur or otherwise might become loose thereafter, leading to pain, leg length inequality and significant morbidity.

Credit findings and the relevance of the clinical notes
The Court of Appeal noted that the credit findings made by the primary judge in favour of the respondent turned largely on the support his evidence drew from his clinical notes. The primary judge accepted the evidence of the respondent about a usual practice of recording contemporaneous notes during consultations, noting that he had no hesitation “in accepting the defendant’s clinical notes . . . in preference to the plaintiff’s recollection, where there is a dispute about what occurred in any given consultation” and any inconsistencies were regarded as inconsequential. This was further supported by the appellant having confirmed that the respondent took notes during each and every consultation.

First dispositive question: was the stem “loose” at the time of the revision surgery (grounds 1, 2 and 3)?

Even if there was such an error on the part of the primary judge in overlooking or rejecting certain radio- logical evidence (ground 1), which was not accepted by the Court of Appeal, Mr Taylor had not taken the necessary further step of showing error in the primary judge’s implicit finding that, as at 30 August 2011, the device was not loose (ground 2). The appellant bore the onus of proof on this matter.

The radiological evidence was not conclusive and there was ample direct and indirect evidence that the device was not loose. That included the written report of the revision surgery, the respondent’s powerful evidence of usual practice, his direct evidence recalling the steps he took during the surgery and the orthopaedic experts’ evidence that the steps the respondent took were reasonable to determine whether the device was loose. In light of that evidence, which the primary judge accepted and the common ground that the steps that the respondent took would have revealed any looseness, there was no error in the implicit finding of the primary judge that the device was not loose on 30 August 2011. Nor was it accepted that an inference should be drawn that if the device was loose before the revision surgery (in June 2011) and also loose after the revision surgery (in October 2011), the inference should be drawn that it was loose at the time of the revision surgery.

In addition, the Court of Appeal held that the appellant failed to show that the stem was loose at the time of the revision surgery (ground 2). There was accordingly no error in the finding that Dr Woodgate discharged his duty of care when checking the stem for loosening during the revision procedure on 30 August 2011.

In addition, the Court of Appeal found that ground 3 was not made out. The appellant argued that if the court found that the femoral stem was loose during the revision surgery, it must follow that the respondent did not adequately test for looseness. However, as the appellant had failed to show that the stem was loose at the time of the revision surgery, there could be no error in the finding of the primary judge.

Second dispositive question: did the stem become loose at some time in the period between the revision surgery and 2017 (grounds 1 and 2)?

Whatever support the appellant gained from the radiological evidence (in particular that of Professor Thomson), his argument on appeal needed to overcome the primary judge’s findings as to what the appellant said in consultations with the respondent and his clinical presentation more generally. Those findings were largely based on acceptance of the respondent’s evidence (itself informed by his clinical records) and involved unequivocal credit findings adverse to the appellant. The credit findings were not directly challenged.

The determinative issue as to whether the stem was loose in the period after the revision surgery until 2017 was the evidence concerning the appellant’s clinical presentation. The joint report by the joint experts made clear at many points that this was the critical issue. A focus at trial and in the primary judge’s reasons was the extent to which the appellant had been able to play
squash and other sports after the revision surgery and what that signified as to whether or not the device was loose. Both experts said in evidence that playing squash for 1.5 hours on a weekly basis would be inconsistent with a definitely loose stem.

Returning to the radiology, the Court of Appeal held that the distinction between “an abnormal radiological finding” such as lucency (an absence of bone density), which indicates that a device might potentially be loose and actual looseness is significant.

Third dispositive question: in the period after the 2011 revision surgery until 2017, would an orthopaedic surgeon exercising reasonable care have detected or investigated whether the stem was loose and recommended further revision surgery?

The appellant accepted that, if he failed on the second dispositive question, his claim in relation to the ongoing management of his hip by the respondent must fail. The third dispositive question therefore did not strictly arise. In any event, the difficulty with the argument made by the appellant was that he needed to upset not only the finding of the primary judge that the stem was not loose, but also the findings as to what he, the appellant, had said in consultations with the respondent. As the primary judge found, if the appellant had in fact been experiencing the lack of functionality that he claimed in his evidence, “he was conveying the opposite impression” to the respondent. There was no challenge of substance to the primary judge’s findings about what the appellant told the respondent. For the purposes of determining whether the respondent exercised reasonable care, he was entitled to act on what the appellant, his patient, was telling him about the extent of his functionality.

Causation

In the absence of any finding of negligence, the counterfactual causation questions posed by appeal grounds 4 and 6 did not arise. The primary judge had commented that, even if the plaintiff had established breach, he would not have found that the plaintiff, (the appellant) had established causation as required by s 5D of the CLA.

The appellant argued at the trial that he would not have undergone the short stem surgery if properly warned of the risk of short-term failure associated with the short stem prosthetic. However, there was no evidence that as at August 2010 the MSA mini stem was either known to have a risk of short-term failure, or that it was associated with a higher risk of aseptic loosening when compared to other prosthetics. In relation to the appellant’s failure to warn argument, the appellant would have needed to persuade the Court of Appeal to draw an inference that he would not have proceeded with the MSAmini stem, had he been advised that it was a novel device with limited information as to its efficacy being available.

The primary judge gave a number of reasons as to why he would have found that the plaintiff (the appellant) would have continued to proceed to surgery with the MSA mini stem in any event, including that the plaintiff had seen up to six orthopaedic surgeons before the defendant (respondent) (all of whom had recommended total hip replacement), the plaintiff had a desire to play squash and have more movement in his hip and the plaintiff had carried out his own research prior to committing to treatment under the care of the defendant.

The plaintiff further argued that he would have enjoyed pain free and functional use of his left hip from the hip replacement surgery if a conventional femoral stem was implanted in May 2011 or, in the alternative, if the MSAshort femoral stem was replaced in the revision surgery. The primary judge was of the view that the plaintiff would have had the same result, more likely than not, despite initial use of the conventional femoral stem. This was because, even after insertion of a more conventional stem prosthesis in 2019, the plaintiff continued to experience broadly similar problems and x-rays showed the more conventional stem had also moved into varus.

Comments 

The appeal was dismissed with costs. The appellant pointed to some omissions in the primary decision which appear to have been accepted by the Court of Appeal. However, the outcome in this
matter appears to have turned on the expert evidence (particularly the evidence flowing from the orthopaedic conclave reports) and from the credit issues leading to factual findings. The primary judge had no hesitation in “accepting the defendant’s clinical notes . . . in preference to the plaintiff’s recollection, where there is a dispute about what occurred in any given consultation”.

Both parties called an expert orthopaedic witness who ultimately participated in a conclave and gave concurrent evidence. The experts were in substantial agreement in relation to the issues upon which they were asked to opine and the parties agreed that the matters on which the experts agreed in their report were to be taken as “widely accepted in Australia by peer professional opinion as competent professional practice” for the purposes of s 5O of the CLA. Of course, when considering the plaintiff’s allegations of failure to warn of material risks, the court was not required to considers 5O of the CLA because of the application of s 5P.

This article was published on May 15 by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website. (www.codea.com.au).