Written by Peter CarterOctober 20, 2020
A negligence claim in NSW’s Supreme Court relating to an adverse outcome from surgery conducted in Toulouse and adjudicated under French law, has yielded big damages for a former Newcastle Knights player.
Lucas Miller – then 22-yrs-old – tore his right anterior cruciate ligament in a tackle that impacted the knee while playing in December 2010 for St Gaudens against Montpellier.
The injury was treated arthroscopically in January 2011 by French surgeon – Dr David Jones – by ligamentoplasty using a transtibial approach.
After completing a demanding five-week rehabilitation program involving reconditioning and physiotherapy for 8 hours each day and having been given the all-clear to play by Jones, he returned to Australia in July that year.
On return to training with a view to restarting his rugby league career, he noticed pain and discomfort in his right knee.
Sydney Orthopaedist Bruce Caldwell diagnosed instability and a tear to the medial meniscus. He performed an arthroscopy in March 2012 to remove all the earlier graft material and fixation devices to settle the infection he observed in the procedure.
In July he performed a revision ACL reconstruction. That surgery was successfully performed but could not remediate infection-related tissue nor did it obviate the severe pain Miller experienced in the knee.
Miller retired from the sport at the end of the 2014 season.
Believing the French surgeon had botched his reconstruction by placing the ACL graft too vertical – with femoral tunnels in an almost 12 o’clock position – and that he had left non-dissolving sutures in the graft that led to infection, he filed a lawsuit in Sydney in April 2015.
Jones’s insurer applied in August 2017 to have the Sydney proceedings “stayed” to allow Miller to re-start his claim in France. Such course was appropriate it contended, because that’s where the surgery had occurred and French law applied to the claim.
The contest came before Justice Geoffrey Bellew who noted that while Jones was fluent in English, Miller was not in French. Most compelling though was that the plaintiff and all the witnesses he proposed call resided here in Australia. In those circumstances His Honour was not satisfied that NSW was “a clearly inappropriate forum” and refused the insurer’s application.
The court was well-equipped, he observed, in applying laws of other places and this could be accommodated by calling evidence on the relevant issues from an expert in French law.
Not to be outdone, the insurer later filed its own proceedings on the same facts in France and re-applied to the NSW Supreme Court in August 2019 to “stay” those proceedings so those in France could go ahead.
That application was likewise dismissed with Justice Bellew noting that the relevant discretionary factors leading to his earlier determination remained essentially the same.
The trial was conducted over five days in October 2019.
Miller relied on opinion from Brisbane orthopaedist Simon Journeaux to prove to the court that the 2011 surgery was sub-optimal and for his expert in the French law of civil liability and damages, French lawyer Benjamin Nataf.
Mr Nataf and Dr Jones’s expert on French personal injury law – Parisien attorney Sebastien van Teslaar – referred the court to Article L 1142 – 1 of the French Public Health Code that establishes liability on the part of medical professionals if they commit an error.
Broadly speaking, it was accepted that French liability law was much the same for this particular exercise, as the common law of torts.
Van Teslaar clarified that doctors also have contractual liability – an “obligation of means” – if fault is proven. “Just because the result was not the one expected doesn’t mean the doctor committed default,” he explained.
The vertical position in which Dr Jones performed the graft was, according to Dr Journeaux a “manifestly inadequate position for a reconstructive procedure involving the ACL”, one which would not produce the optimal strength and stability required to allow the patient to return to professional rugby league.
With Journeaux’s opinions accepted, the requisite “fault” under French law was found to have been made out.
Dr Journeaux was also of the view that the knee was likely infected “primarily from the index procedure” and the infection would probably have occurred even had the reconstruction been expertly performed.
He attributed as “an educated guess” that 50% of the residual knee damage resulted from the “poorly done reconstruction” and the other 50% was due to the infection.
French law as to damages was also explained by Mr van Teslaar as being remarkably similar to that of the common law world, albeit with different terminology and some codification of damages categories. Somewhat surprisingly, there is also in France the notion of “loss of chance”.
Several categories of French compensation make up what we call general damages. Firstly, for “temporary functional deficit” compensation of €600 – €900 per month is allowed. Next for “permanent functional deficit”, van Teslaar contended that someone in Mr Miller’s position could expect to receive between €60k and €90k, with a further payment for “pain and suffering”. Justice Bellew awarded €79k for the former and €7k for the latter.
Further compensation was allowable for for scarring of €1k – €3k and a “non-financial loss of amenity” payment for example being unable to carry on a hobby or other pursuit – depending on how intensely it was carried out pre-accident – of €2k – €6k could be expected.
Recovery of the value of voluntarily supplied services to and injured claimant is also recoverable but only at €15 to €18 per hour.
As to economic loss, Miller had sustained a serious a left knee injury in 2008 when playing as a junior for the Storm. The court accepted he transferred to St Gaudens to prove that it had recovered with a view to obtaining a Super League contract before returning to Australia to play in the NRL.
He would – according to Justice Bellew – likely have joined an NRL team and enjoyed a 7-year career earning about $125k per season had the surgery been competently performed. Thereafter he would have pursued a career in the mining industry earning at the same level.
The matter was stood over for the parties to agree damages based on His Honour’s rulings. Unfortunately there is no record at the time of writing of what total damages were arrived at.
Even taking into account the infection-related 50% reduction that must on Dr Journeaux’s evidence, be applied to the assessment, the total damages for the 32-yr-old (at time of trial) are likely to be in seven figures of euros.
Miller v Jones (No. 6)  NSWSC 736 Bellew J, 17 June 2020 Read case