What happened
After a motorcycle injury in 2010, the patient underwent ankle reconstruction. During subsequent infection treatment, the surgeon removed the lateral plate and screws but deliberately retained medial fixation material to avoid opening an uninfected area. A further infection diagnosed in 2017 led to another operation and the negligence claim.
The issues
The court separately examined whether reasonable orthopaedic practice required removal and whether retention caused the later infection. It also considered whether an alternative case based on removal at a later date had been pleaded and fairly put to the surgeon.
The court's decision
The evidence did not adequately establish breach, given the risks of further surgery and the specialist evidence. Had retention been negligent, factual causation would have been established, but that conditional conclusion did not establish liability. The appeal was dismissed with costs.
Understanding the figures
The trial judge's approximately AUD 66,800 assessment was contingent on liability and was not a damages award. Dismissal remained in place, so that figure should not be represented as compensation recovered.
What this case shows
A treatment decision can be causally connected to harm without falling below the required standard of care. The low probability of infection mattered to reasonable precautions, but it did not answer what caused the infection once that risk materialised.
Why another case may differ
Although decided in NSW, the treatment occurred in the ACT and the court applied the Civil Law (Wrongs) Act 2002 (ACT). The failure separately to determine the consumer-law claim was not challenged on appeal. The decision establishes no universal rule that retained hardware is safe or must be removed.
Applying it to your claim
Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.
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