In the recent matter of Briggs v Hillier [2025] NSWSC 1021, the plaintiff (Ms Erin Nicole Briggs) commenced a medical negligence compensation claim against the defendant, Dr Terence Hillier, orthopaedic surgeon.
This case is about the treatment of the plaintiff by the defendant, an orthopaedic surgeon, in 1999. The plaintiff was an adept, aspiring young sportswoman who, in the years leading up to her surgery, experienced symptoms in her lower back. She attended upon the defendant following a course of conservative treatment to her lower back which commenced in 1995. The defendant performed surgery on the plaintiff on 11 March 1999, and attended upon her thereafter on several occasions again in 1999. She returned to see the defendant in 2019 – twenty years later – and she now brings a claim against him in negligence.
The plaintiff alleges that the defendant negligently advised and managed the plaintiff over the period in which he treated her in 1999.
On the limitation argument, the court held at [417] as follows:
Both presumptive and actual prejudice has been suffered by the defendant. In my opinion, the trial has been unacceptably unfair in all of the circumstances. For that reason, it would not be just and reasonable to order that the limitation period be extended and the plaintiff’s claim fails on that basis alone.
As to breach of duty, the plaintiff did not prove that the defendant performed the surgery in a negligent manner, with the court providing at [468] as follows:
The third limb which relates to the defendant’s performance of the surgery can be dismissed quickly. The experts speculated as to the source of the plaintiff’s current pain and whether damage at the L4/5 facet joint occurred during the surgery or whether the harm was caused by the removal of the loose lamina at L5. The comments, insofar as they related to anything the defendant did or did not do during the surgery and the effect thereof, were purely speculative as counsel for the defendant noted in written submissions. That the defendant performed the surgery in a negligent manner was not proved on the balance of probabilities.
Court Finds No Breach of Duty in Surgical Negligence
The second limb, the plaintiff’s failure to warn case, can also be dismissed quickly for reasons alluded to in the defendant’s submissions. In answer to the defendant’s request for further particulars dated 25 May 2022, the plaintiff’s solicitors stated that she and her parents ought to have been warned of “…the risk of the surgery failing in circumstances where… [t]he surgery was unwarranted”. I note that the plaintiff’s solicitors listed other risks of which they alleged that the plaintiff and her parents ought to have been informed. However, I accept the defendant’s submission that the plaintiff’s failure to warn case is ultimately misconceived in circumstances where the substance of the allegation is in fact that the surgery should not have taken place at all. I take that view in light of the focus on this issue at trial and in submissions, and the lack of evidence of the failure to cross-examine on a pure failure to warn case. Furthermore, if the surgery was unwarranted and the defendant failed to inform the plaintiff of the risk arising from that, a finding that the defendant was negligent because he ought to have informed the plaintiff of the risk of the surgery failing in circumstances where the surgery was unwarranted is plainly illogical. The appropriate finding in such circumstances would be that the defendant was negligent for performing unwarranted surgery. That allegation therefore fails. I now turn to the allegation as put by the plaintiff in the first limb of her case.
As to causation, the court held at [486]:
The lack of report of any symptoms in the several years following surgery demonstrates on the balance of probabilities that there was no damage to the left facet joint. Indeed, the plaintiff achieved an excellent functional outcome. Her symptoms resolved and she was able to resume hockey and lead an active life until the onset of lower back symptoms in about 2018. Adopting the views of Dr Dalton, set out in detail above, the plaintiffs current symptomology reflects the natural course of the very condition she had in 1999, i.e. a symptomatic grade 1 spondylolisthesis. The plaintiff has failed to prove on the balance of probabilities that anything the defendant did or failed to do caused her any harm.
At [516] the Court provides that, had the plaintiff been successful, damages would have been assessed as follows:
General Damages – $251,500.00
Past Out of Pocket Expenses – $3,646.80
Future Out of Pocket Expenses – $25,000.00
Past Gratuitous Care – $162,893.42
Future Economic Loss – $171,000.00
Future Care – $195,000.00
Totalling $809,040.22
On a final interesting note, there was some discussion at trial about whether or not Professor Dan is a peer for the purposes of section 5O. Surprisingly, there is no authority on that particular question. I have given that question much thought. Professor Dan and Dr Hillier performed spinal surgery at the same time and on similar patients in the 1990s. Whilst Professor Dan was and remains a neurosurgeon, in my view for the purpose of establishing whether Dr Hillier, an orthopaedic surgeon, acted in a manner that in 1999 was widely accepted in Australia as competent professional practice, Professor Dan was capable of providing such an opinion (at [474]).
Ultimately, on 8 September 2025, the Supreme Court of New South Wales ordered as follows:
- Verdict and judgment for the defendant;
- The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order;
- Liberty to apply on seven (7) days notice if further or other orders are required, including as to costs; and
- The exhibits and subpoenaed material are to be returned forthwith. Any exhibits returned must be retained intact by the party or person who produced that material until the expiry of the time to file an appeal or until any appeal has been determined.
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