Austen v Tran [2022] ACTSC 114

Citation: [2022] ACTSC 114

Hearing Date: 4 March, 3, 4, 6, 7, 12 May 2021

Decision Date: 24 May 2022

Before: McWilliam AJ

Decision: (1) Judgment is entered for the defendant.

(2) The plaintiff is to pay the defendant’s costs.

(3) If any variation to the costs order is sought, the parties have liberty to apply within 14 days of the making of these orders.

Catchwords: NEGLIGENCE – MEDICAL NEGLIGENCE – General practitioner – where delay in diagnosis of non-Hodgkin's lymphoma – where only blood tests ordered at initial presentation and practitioner did not follow up – whether breach of duty of care – whether practitioner should have ordered an MRI at a subsequent presentation – whether any breach caused a delay in diagnosis DAMAGES – DOMESTIC SERVICES – whether ‘household’ in s 100 of the Civil Law (Wrongs Act) 2002 (ACT) includes extended family – where plaintiff’s claim includes future domestic assistance provided to the plaintiff’s extended family and plaintiff is primary caregiver in large indigenous familial group

Legislation Cited: Civil Law (Wrongs Act) 2002 (ACT) ss 42, 43, 44, 45, 46, 99, 100 Civil Liability Act 2002 (NSW) s 5D Motor Accidents Act 1988 (NSW)

Cases Cited: Action Paintball Games Pty Ltd (In liq) v Barker [2013] NSWCA 128 Amin v Vidal [2020] ACTSC 227 Benning v Richardson [2021] ACTSC 34 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233 Dixon v Foote [2012] ACTSC 101 George v Survery [2009] NSWSC 1348 Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; 229 CLR 498; 81 ALJR 919 Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 Hauraki v Steinhoff Asia Pacific Limited t/a Freedom Furniture [2021] ACTSC 54 HL v HP [2019] ACTSC 299 Hulanicki v Walton [2014] ACTSC 17 MacCabe v Westlock Roman Catholic Separate School District No 110 [2002] 1 WWR 610 Mason v Demasi [2009] NSWCA 227 Nouri v Australian Capital Territory [2018] ACTSC 275 Nouri v Australian Capital Territory [2020] ACTCA 1 Perry v Pese [2018] ACTSC 205 Reeve v Commonwealth [2014] ACTSC 1 Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 Rogers v Whitaker (1992) 175 CLR 479 Rosenberg v Percival [2001] HCA 18; 205 CLR 434 Skelton v Collins [1966] HCA 14; 115 CLR 94 Tabet v Gett [2010] HCA 12; 240 CLR 537 Tsueneaki v Stewart [2013] ACTCA 34 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Wilkins v Council of the City of Broken Hill [2005] NSWCA 468 Young v Rothin [2009] ACTSC 71

Parties: Sandra Austen (Plaintiff) Tuan Quoc Tran (Defendant)

Representation: Counsel D Richards (Plaintiff) W Sharwood (4 March 2021) and A Muller (3, 4, 6, 7, 12 May 2021) (Defendant)

Solicitors Maliganis Edwards Johnson (Plaintiff) Minter Ellison (Defendant)

File Number: SC 284 of 2020

McWilliam AJ:

1. The plaintiff, Ms Sandra Austen, claims damages for medical negligence against the defendant, Dr Tuan Quoc Tran, a general practitioner with more than 20 years’ experience at the time, who attended upon the plaintiff for two consultations. The first consultation occurred on 17 October 2016. The second consultation occurred on 15 July 2017. The plaintiff was diagnosed with non-Hodgkin's lymphoma on 19 September 2017 and the illness is terminal. She alleges the defendant failed to take steps which would have led to an earlier diagnosis of the condition, and that an earlier diagnosis would have improved her prognosis and life expectancy.

2. The defendant’s case is that at each consultation, he took reasonable steps that were consistent with his duty of care. Further, in relation to the first consultation, the defendant submits any further reasonable investigations that may have been taken at that time would not have revealed the presence of the disease (due to it being at an early stage, if it existed at all). The defendant did not allege any contributory negligence.

3. The issues for determination are:

(a) whether the defendant breached the duty of care accepted to have been owed to the plaintiff in respect of either the first consultation or the second consultation;

(b) whether any breach caused the injuries and disabilities specified; and

(c) if so, the quantum of the damages to be awarded.

4. For reasons that follow, although I consider that a prudent doctor with knowledge of the plaintiff’s history and circumstances may have taken a different approach, I am not satisfied on the balance of probabilities that the approach of the defendant fell short of the relevant duty of care owed, or that if there was a breach, any delay was causative of the plaintiff’s current terminal prognosis.

The facts

5. The factual chronology is set out in some detail as it has been necessary to resolve some factual conflicts in the evidence before considering what flows from the facts as found.

6. The evidence relevant to the plaintiff’s medical history was led primarily through the parties, who were each cross-examined. The plaintiff's husband, Mr Ronald Austen, also gave evidence, along with her son and a close friend.

7. Various medical records, clinical notes and reports were also before the Court in the form of medical tender bundles. As will be seen in what follows, there are at times inconsistencies between the plaintiff’s oral evidence and the clinical records.

8. As such, a cautious approach has been taken not to elevate clinical records to a higher status factually than other evidence given in the proceedings. I am mindful of the warnings surrounding the proper treatment of clinical notes in cases such as Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (Container Terminals) at [8] and Mason v Demasi [2009] NSWCA 227 (Demasi) at [2], where Basten JA described the rationales for this caution, including relevantly that clinical notes:

(a) are usually taken in furtherance of a purpose different to that for which they are used in proceedings;

(b) do not contain the questions of the health professional that elucidated the patient’s reply;

(c) are likely to be only a summary rather than a verbatim recording; and

(d) are affected by a range of factors, including fluency of language and the patient’s understanding of the purpose of the questioning.

The plaintiff attends the first consultation

9. The plaintiff went to see the defendant on 17 October 2016. This was the plaintiff’s first presentation at the Wattle Street Medical Practice (Practice) since 25 January 2012, when she had seen the defendant in relation to her mental health.

10. Although it had been some years since the plaintiff saw the defendant, the circumstances were that this plaintiff was known to the defendant and to the Practice. What was known (or ought to have been known) at the time the plaintiff attended for the first consultation was that she had long term mental health issues and was a long-term recipient of a disability pension.

11. The defendant was the principal doctor in the Practice, which had 3,000-4,000 active patients. He personally saw 150-200 patients per week. He gave evidence that on a particularly busy day he would see 40 or 45 patients, averaging about 10-15 minutes per consultation.

12. Consistent with that evidence, it was uncontroversial that the first consultation lasted no more than 15 minutes. The defendant conducted some form of examination during the first consultation as indicated by the clinical notes taken by the defendant:

Diagnosis: Right Leg pain Reason for visit: Right Leg pain for 8 days. pain --8/10 examination –no swelling, not tender, not red, no back pain. Right Leg pain

Disputed facts: The location and severity of the plaintiff’s pain

13. The plaintiff’s evidence was that it was her left leg (not the right) where she felt significant pain, that she had told the defendant the pain was in her left leg during the first consultation, and that the defendant’s notes referring to pain in her right leg are incorrect.

14. During the hearing, the defendant relied on the accuracy of his notes, and further submitted that the discrepancy between them and the plaintiff’s version of events was an inconsistency relevant to the plaintiff’s reliability and therefore credit.

15. I find that the clinical notes mistakenly refer to the right leg when the plaintiff told the defendant the 8/10 pain was in her left leg. The reasons for that finding are as follows.

16. First, although the plaintiff accepted that her memory was unreliable at times, the plaintiff expressly recalled the consultation and what occurred, and she was firm about the details. She described the pain level as “excruciating”. She recalled the defendant asking her to stand up and walk. She remembered going to the examination table and the defendant asking her to lift each leg. When the defendant asked her to lift her leg while on the examination table, she “couldn’t lift the left leg at all”. She said the defendant then got her to attempt to separate her knees against his hands. She was not asked to take off her any clothing for the examination. On her evidence, that was the extent of any examination.

17. There was some dispute about matters that might be described as trivial, but which took on a greater focus because of possible significance of the details to the overall reliability of the plaintiff’s memory, which the plaintiff accepted had been affected by chemotherapy. For example, the plaintiff said she had a clear memory of her clothing at the consultation. She remembered wearing tracksuit pants and a jumper. Although in cross-examination it was suggested that this was not an actual memory but rather her usual outfit, on balance, I accept the plaintiff’s recollection of what she wore at the first consultation as being accurate.

18. Second, the plaintiff said she went to see the defendant in October 2016 because she was experiencing “really incredibly bad pain” in her left leg. She described it as “agonising”, and that also her back had started getting “really, really sore”. The pain had got to the point where she was huddling over and had become over-reliant on pain killers. She was able to recall quite specific details about her level of pain at the time. She is in the best position to know her symptoms and I consider that generally she was a truthful witness. In circumstances where the plaintiff’s pain was so severe, it is unlikely she would mistake which leg was the problem, even accepting for some unreliability of memory.

19. Third, the plaintiff’s evidence was also supported indirectly, in the following two ways:

(a) The plaintiff’s husband gave evidence that in the period of about four to six months before diagnosis his wife was dragging her left leg. He described observing that the plaintiff did not have “the strength [to] put it in front of her”. While that recollection does not extend as far back in time as the first consultation, Mr Austen’s recollection was that the source of his wife’s ongoing pain was her left leg, not her right. During the period the plaintiff’s husband described, he would massage the plaintiff’s leg in an effort to relieve some of the pain. His recollection of the pain being in the plaintiff’s left leg was in part due to the plaintiff sometimes having to remind him which leg it was that required massaging.

(b) A clinical note on 21 August 2017 (made by Dr Jazwari at the Practice), written at the time the plaintiff was referred for an MRI, refers to the plaintiff’s left leg pain and weakness for one year. That time period is consistent with the plaintiff’s evidence that she had felt pain in her left leg at around the time of the first consultation. While that clinical note is also a history given by the plaintiff, it is one given at a period in time much closer to the events in question than the oral evidence of the plaintiff and her husband. It is also a history given to the Practice before any chemotherapy – and its possible effect on the plaintiff’s memory, as emphasised by the defendant as a factor affecting her reliability – had occurred.

20. Fourth (and understandably in light of the passage of time and number of patients seen by the defendant), the defendant could not independently recall the examination or the first consultation. He was at best able to state that his usual practice included a physical examination if he thought the patient’s condition made one necessary. Although the defendant rejected that he had typed the wrong leg on the note, it was clear from the defendant’s answers under cross-examination that he was entirely reliant on the clinical notes for his position on which leg was the subject of complaint. Errors can occur in medical professionals recording whether the part of the body affected was the left or right side. Here, the plaintiff’s evidence was that she had never experienced any pain in her right leg at the time of the first consultation. In light of the pain and the impact it had on her ability to walk as described above, if she had experienced that type of pain in both legs, I consider it to be something she would remember.

21. Accordingly, I accept the plaintiff’s evidence as to what occurred at the first consultation. However, whether the pain was in the left or right leg made no difference to the course taken by the defendant at the first consultation. That is because the defendant’s response was not targeted to the source of the plaintiff’s pain (i.e. he did not prescribe any x-rays of any particular leg).

22. The defendant’s evidence was that the blood tests were ordered as he made a differential diagnosis, which he thought might be an iron deficiency. The full blood count blood tests were intended to rule out anaemia arising from iron deficiency, inflammatory processes, and muscle tissue damage.

23. Anaprox was also prescribed both as an anti-inflammatory and to provide mid-level pain relief.

24. The defendant described the “8 out of 10 pain” as a reference to the plaintiff’s own rating of her level of pain at the time. Again, relying mainly on his note, the defendant said that 8 out of 10 must not have been his impression as he had only prescribed Anaprox, which is an anti-inflammatory typically prescribed for moderate pain relief. In his examination in chief, the defendant said that if someone had 8 out of 10 pain that would be quite significant pain and would need something “a lot stronger”.

25. Based upon the medication he had prescribed, the defendant said that even though he wrote 8 out of 10, he said his impression would have been that the plaintiff’s pain was really only 4 out of 10. If he had believed the plaintiff’s estimation of her pain level, he would have prescribed additional pain relief medication or otherwise escalated the matter. In cross-examination, the defendant said that if he had formed the view that the pain was indeed 8 out of 10 for 8 days, as the plaintiff had reported, he would have sent the plaintiff to hospital straight away.

26. I consider there to be a degree of reconstruction and speculation in the defendant’s evidence on this point. But I accept that:

(a) the plaintiff reported pain in her leg was an 8 out of 10; and

(b) the defendant recorded the plaintiff’s rating, and after examining the plaintiff, formed a view that she was in moderate pain.

Disputed facts: Longevity of pain and advice to plaintiff

27. There are two further factual discrepancies to deal with in relation to the first consultation. First, whether the plaintiff told the defendant she had been in pain for a number of months. Second, whether the defendant advised the plaintiff to return if the pain in her leg did not improve.

28. As to the first, the plaintiff’s evidence was that she told the defendant she had been in pain for a number of months, when the notes only record eight days. I consider there is some ambiguity arising from the brevity of the notes, and that, recalling the caution required when reading a clinical record, it may be that the plaintiff said both periods of time.

29. As a hypothetical example, the doctor’s question may have been, “what brings you here today?” Answer: “pain in the left leg.” That leads to follow up questions, such as, “how long have you been experiencing the pain?” Answer: “I don’t know but it has been really bad for 8 days.” The doctor may then say, “what do you mean by really bad, on a scale of 1 to 10?” Answer: “8 out of 10”. If the doctor then proceeds to examine the patient, she may expand and say that she has been experiencing significant pain for months, but it got to the point where she could no longer put up with it. It is unlikely that the doctor would return to amend the notes sitting on his computer. The notes would have been primarily for his own treatment purposes (recalling Container Terminals and Demasi, discussed at [8] above) and not for the purpose of assisting resolution of detailed factual controversies in litigation years later.

30. That example is a means of explaining why, notwithstanding it is not recorded in the notes, I am prepared to accept that the plaintiff had been experiencing a degree of pain in her left leg for months and that she told the defendant that at the first consultation. I find that what brought her to see the doctor was that she felt an escalation in pain in her left leg and that she had felt that worsening of pain for more than a week.

31. As to the second factual discrepancy, the notes do not record any such advice. The defendant believed he would have said words to that effect to the plaintiff. The plaintiff was adamant she was not advised to return.

32. At best, if mention was made of a return visit, the evidence of the defendant suggests that the words were more in the nature of a throw-away line at the end of the consultation, rather than advice by the defendant to the plaintiff about the appropriate treatment strategy, including using time as a diagnostic tool to work out what was going on. For example, it was not the evidence of the defendant that he ever explained to the plaintiff that if the blood tests did not reveal the cause of the pain and the pain was still present after a specified period of time, he would like to see her again to move to the next step of x-rays.

The plaintiff receives blood test results and takes pain relief medication

33. The results of the blood test were received in the Practice the next day (18 October 2016) and indicated a normal range for iron levels. The plaintiff went to the Practice that day in person. She recalled the receptionist telling her that her test results were “all good”. The defendant’s evidence was that he had recorded it as “normal” in the clinical software, and he agreed it was the receptionist who then conveyed the results to the plaintiff.

34. At the time the plaintiff received the results of the blood tests, no one at the Practice requested she make a further appointment. The defendant did not subsequently call the plaintiff or refer her for any further investigations.

35. The plaintiff’s evidence was that Anaprox worked initially to relieve the pain for about two weeks. After that, it had little to no effect in relieving the pain.

The plaintiff attends other medical practitioners for treatment of unrelated ailments

36. On 27 October 2016, the plaintiff attended Dickson Health Centre where she consulted Dr Smee in relation to a sore throat and nasal congestion.

37. The plaintiff next attended the Practice on 13 December 2016, consulting Dr Dutta and complaining of a left-sided neck muscle sprain. She also attended on 13 January 2017 for what appears to be a range of medications prescribed for an upcoming cruise holiday, which included asthma medication. Neither of those visits mentions leg or back pain.

38. On 30 March 2017, the plaintiff attended the Practice for complaints including incontinence, recurrent urinary tract infection, heavy bleeding, and ear pain.

39. On 9 May 2017, the plaintiff again consulted Dr Smee in relation to a sore throat and painful sinuses.

The plaintiff re-presents at the Practice for left foot/leg pain

40. On 19 June 2017, the plaintiff attended the Practice and saw Dr Jazwari, reporting left foot/leg pain for the last three nights. The medical notes recorded a three-day history of pain in the left foot, leg and hip. The notes indicate in reference to the left foot/leg pain that she “had it three times before, two in the right leg”. The timing of this pain is not specified.

41. The plaintiff was examined by Dr Jazwari for spinal tenderness, sciatic nerve irritation and movement and tenderness of the hip. The provisional diagnosis was nerve root compression, or a disc prolapse. On that occasion, she was referred by Dr Jazwari for a CT of the lumbar spine, which occurred on 21 June 2017. She also underwent blood tests and returned to the Practice to see Dr Jazwari for a care plan modification.

42. The blood tests showed some abnormalities, with an elevated Alkaline Phosphatase and elevated CRP.

The second consultation

43. The plaintiff gave evidence that she next consulted the defendant on 15 July 2017 in relation to worsening (which has been subsequently described as “acute” and “severe”) lower back and left leg pain, as well as unexplained weight loss, lethargy and incontinence.

44. She reported experiencing acute lumbar pain radiating to her left leg, which had occurred after getting up from a chair. The clinical notes are as follows:

Diagnosis: Arthritis Reason for Visit: Lumbar back pain Occurred after getting up from a chair, --acute pain as before pain radiated to left leg, No numbness, Pain on left knee on knee movement and weight bearing, She… also has severe hip pain Arthritis Actions: Prescription printed: Anaprox 550 550mg Tablet 1 Twice a day after meals Aropax 20 mg Tablet ceased (No longer required) Imaging requested printed: x rays left hip and left [knee]. (sever[e] left hip and left knee pain ? osteoarthritis left hip and left knee) Mild sinus congestion Also ultrasound left gluteus muscles

45. From the above it can be seen that on this occasion, the defendant again prescribed her with the moderate level painkiller Anaprox, and this time referred her for x-rays and an ultrasound on her left hip and left knee.

46. The defendant did not refer the plaintiff to any specialist for further investigations to exclude possible causes of the pain. The defendant accepted that the x-rays were ordered because of the defendant’s concern about an arthritic process.

47. The x-rays and ultrasound were not carried out until 8 and 9 August 2017. Although the defendant speculated as to the reason for the delay, it was not able to be explained by either party. The conclusion of the radiology report dated 9 August 2017 was as follows:

48. An essentially unremarkable plain x-ray examination of the knees and left hip. 2. Possible abnormality of the left sacroiliac joint. Further evaluation with plain x-rays dedicated to the sacroiliac joints is suggested as today’s examination does not include this. 3. An essentially normal ultrasound of the left hip including the left buttock and the tendon attachment sites of the AIIS and ASIS. 4. View the distribution of pain, the possibility of sciatica should be considered. If plain x-rays of the sacroiliac joints are unremarkable, consideration could be made performing either CT of MRI of the lumbosacral spine.

49. It appears the defendant did not take action to follow up that recommendation or refer the plaintiff for further x-rays.

Subsequent treatment leading to diagnosis

49. On 21 August 2017, the plaintiff saw Dr Jazwari at the Practice. At that time, the results of the x-rays were reviewed and she was referred to orthopaedic specialist Dr Damian Smith for an MRI of the lumbar spine.

50. The MRI was carried out on 1 September 2017. That was the first time an MRI of the plaintiff’s lumbar spine had been performed. It identified “bony lesions – metastasis multiple”.

51. On 4 September 2017, Dr Jazwari discussed the MRI results with the plaintiff ordered urgent scans.

52. On 5 September 2017, the plaintiff underwent a CT of the neck, chest, abdomen and pelvis, and a mammogram of both breasts.

53. On 6 September 2017, the plaintiff underwent a whole-body bone scan.

54. On 7 September 2017, the plaintiff returned to Dr Jazwari for review of the results, which were recorded as being consistent with osteoblastic skeletal metastases.

55. Further interactions occurred between the Practice and the plaintiff on 7 and 8 September 2017.

56. On 11 September 2017, the plaintiff saw Dr Phillip Choi at Canberra Hospital Medical Oncology, who confirmed the diagnosis of osteoblastic skeletal metastases involving the sacrum, right ilium and probably neck of the left femur.

57. Biopsies performed on 13 and 19 September 2017 confirmed the diagnosis of non- Hodgkin’s lymphoma. The plaintiff commences chemotherapy

58. The plaintiff commenced chemotherapy, which occurred (approximately) over October/November 2017 through to Jan/Feb 2018. She was declared to be in remission in May 2018.

59. On 10 July 2019, a CT scan performed suggested a recurrence of the plaintiff’s lymphoma. This was confirmed by a PET scan on 25 July 2019 and a CT guided biopsy on 9 August 2019, which indicated a relapsed diffuse large B-cell lymphoma.

60. The plaintiff commences a second round of chemotherapy on or around late August/September 2019, completing that round of treatment in November 2019.

61. The plaintiff had an autologous stem cell transplant on 12 December 2019.

62. Since that time, the plaintiff has continued in the care of the Canberra Hospital’s Oncology Unit. As at the hearing, the plaintiff had been participating in a treatment trial at St Vincent’s hospital in Sydney, with the outcome of the most recent therapy yet to be determined.

The plaintiff’s claim and applicable legal framework

63. It is helpful for the reasoning that follows in relation to matters of breach and causation to have a global understanding the plaintiff’s claim in the context of the legal framework applying to it.

Duty of Care

64. Section 42 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act) provides:

42 Standard of care For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.

65. The Statement of Claim, filed 3 October 2019, alleges that the defendant owed the plaintiff a duty of care when providing her with health services, advice, and treatment. That is uncontroversial and admitted by the defendant.

66. The relevant standard is that of a medical practitioner, which was outlined by the High Court in Rogers v Whitaker (1992) 175 CLR 479 at 483 (Rogers v Whitaker) (citations omitted):

The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment"; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case. The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill …

67. This characterisation of the duty was endorsed in Dixon v Foote [2012] ACTSC 101 at [166]. The special skill is that of an ordinary general practitioner acting reasonably.

68. Again, that is uncontroversial. The standard of care required of the defendant was that of the ordinary reasonably skilled general practitioner, possessing the knowledge of the defendant at the time of each consultation.

The content of the duty and assessing whether it was breached

69. What falls for consideration is the content of the duty. To determine whether the standard of care has been breached in a particular case, s 43 of the CLW Act must be applied. It is in the following terms:

43 Precautions against risk—general principles (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 precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things): (a) the probability that the harm would happen if precautions 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 creating the risk of harm.

70. The plaintiff alleges that the defendant failed to exercise reasonable care and skill in relation to each of the two consultations. The allegations or the “precautions” that should have been taken have been particularised in the pleading may be summarised as follows:

(a) In relation to the first consultation, the defendant failed to:

(i) properly investigate the symptoms and complaints of the plaintiff;

(ii) make a proper diagnosis, or perform a differential diagnosis;

(iii) formulate a management plan for the plaintiff’s further assessment and/or treatment;

(iv) follow up with the plaintiff after the consultation;

(v) properly advise and treat the plaintiff;

(vi) refer the plaintiff for investigations; and

(vii) refer the plaintiff to a specialist or other medical practitioner.

(b) In relation to the second consultation, the defendant failed to:

(i) take a proper history;

(ii) perform an appropriate and proper physical examination;

(iii) properly advise and treat the plaintiff;

(iv) refer the plaintiff for investigations; and (v) refer the plaintiff to a specialist or other medical practitioner.

71. Central to applying s 43 is the identification of the “risk of harm”. Only once the risk of harm is known can one assess what a reasonable response to the risk would be: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [59] per Gummow J.

72. Here, the risk of harm identified was the risk of a delay in diagnosis and subsequent worsening of the plaintiff’s non-Hodgkin’s lymphoma. The risk of harm arising from a delay in diagnosis was that the lymphoma (which may have been curable) would be left untreated and develop to a point where it was terminal for the plaintiff.

73. There was no dispute that the risk of lymphoma and its progression if undetected, including an increase in size of the Plaintiff’s osteoblastic skeletal metastases, was a foreseeable risk within the meaning of s 43(1)(a) of the CLW Act.

74. As to s 43(1)(b) of the CLW Act, it was held by the Court of Appeal in Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233 that this section requires a minimum degree of probability of harm that is slightly higher than the common law formulation of “not far-fetched or fanciful”. At [29] the Court of Appeal said (emphasis added):

Section 43(1)(b) of the Wrongs Act provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was not insignificant. This requires the risk to be assessed prospectively. The double negative “not insignificant” imposes a more demanding standard than that imposed by the common law, but not greatly so: Shaw v Thomas [2010] NSWCA 169 at [44], per Macfarlan JA (with whom Beazley and Tobias JJA agreed). Similarly, in Meandarra Ariel Spraying Pty Ltd v GEJ Geldard Pty Ltd [2012] QCA 315; [2013] 1 Qd R 319, this led Fraser JA (with whom White JA and Mullins J agreed) to conclude, at [26]: The respondent referred to Chesterman J’s statement in Pollard v Trude that the replacement in s 9(1)(b) of “not insignificant” for the common law formulation of “not far fetched or fanciful” added little in clarity. Nevertheless, the provision was designed to increase the degree of probability of harm which is required for a finding that a risk was foreseeable. I think that it did produce some slight increase in the necessary degree of probability. A far-fetched or fanciful risk is necessarily so glaringly improbable as to be insignificant, but the obverse proposition may not necessarily be true …

75. There must also be no issue here that the risk was “not insignificant”.

76. Where the parties diverge is whether a reasonably competent general practitioner in the defendant’s position would have taken the “precautions” that the plaintiff says should have been taken: s 43(1)(c). I have emphasised “would” to highlight that it is not enough to find that another general practitioner could have taken such precautions. That is reflected in the statute with regard to the meaning of the words “the burden of taking precautions” in s 43(2)(c) of the CLW Act. In that respect, s 44 provides:

Precautions against risk—other principles In a proceeding in relation to liability for negligence— (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.

77. The plaintiff’s claim is that the defendant should have investigated her symptoms, including through follow up and referrals, to achieve a diagnosis. The plaintiff submits this would have included taking an adequate history, recording this and the plaintiff’s symptoms (correctly) in the clinical notes, and conducting an appropriate physical examination during the consultation, again with an adequate record of what was done. If a diagnosis could not be made, it was then incumbent upon the defendant to organise a follow up appointment or refer the plaintiff for further investigations so that she would not be left without any diagnosis for what was significant pain in her left leg.

78. Importantly for the outcome of this case, the determination of breach is a prospective inquiry that should focus on “foresight” of the risk of injury, rather than hindsight: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126] per Hayne J. Assessing whether an ordinary general practitioner acting reasonably would have taken a certain precaution must be done by reference to the circumstances “before the harm arose”: Action Paintball Games Pty Ltd (In liq) v Barker [2013] NSWCA 128 at [34].

79. The defendant also drew attention in submissions to Rosenberg v Percival [2001] HCA 18; 205 CLR 434. Gleeson CJ at [16] referred to the fact that litigation proceeds upon, and the parties conduct is seen through, the “prism of hindsight”. The Chief Justice went on in the same paragraph (references omitted):

…A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated. …

80. The plaintiff relied on the decision of the NSW Court of Appeal in Wilkins v Council of the City of Broken Hill [2005] NSWCA 468 (Wilkins) at [44]. The plaintiff submitted that a number of acts or omissions which may not constitute individual breaches may, when combined together, amount to a breach of duty “as one failure augments the others to place a plaintiff at an unacceptable risk of injury”.

81. As will be seen, I consider that the passage relied upon in Wilkins is better directed to the issue of causation (and the plaintiff also relied on Wilkins in relation to that issue), but in any event, the plaintiff’s argument is accommodated by applying the requirements of s 43 of the CLW Act as to what precautions should have been taken “in the circumstances” at the time the negligent conduct is said to have arisen.

Causation

82. Causation is to be determined in accordance with ss 45 and 46 of the CLW Act. Those provisions are as follows:

45 General principles (1) A decision that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’); (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability). (2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to 1 or more of them— (a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but (b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability. (3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party. 46 Burden of proof In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation. (Notes omitted)

83. Section 45(1), like s 5D(1) of the Civil Liability Act 2002 (NSW), establishes a “but for” test for causation: Nouri v Australian Capital Territory [2018] ACTSC 275 (upheld on appeal in Nouri v Australian Capital Territory [2020] ACTCA 1), at [421].

84. In Wilkins at [44], Mason P (with whom Hodgson JA and Ipp JA agreed) referred with approval to a passage from MacCabe v Westlock Roman Catholic Separate School District No 110 [2002] 1 WWR 610 (MacCabe), where Wittmann JA had in turn approved the following statement by the trial judge at 18-19 (emphasis added):

The presence of any one of the breaches as noted above was itself sufficient to have caused the accident. However, these breaches appear to have combined in a synergistic manner such that each of the breaches augmented the others and this synergistic interaction in my view placed the Plaintiff at risk. For example, although the presence of the crash mat at the box horse station and Romanuik’s failure to take students through their proper progressions were each breaches of the standard of care, when these two factors were combined, they worked together to increase the degree of risk of injury. Add a third factor, the environment Romanuik created by instructing the students to be creative and that they would be graded on this creativity, enhancing their already competitive spirit, the risk is augmented yet again. Therefore, although I find that any one of the identified breaches would clearly reach a causal threshold beyond a balance of probabilities, if one further considered the straight additive effect of the breaches, it is taken well beyond that threshold.

85. In MacCabe, the plaintiff was rendered quadriplegic following an accident in a gymnastics class and it was held that several matters had combined to establish negligence. This was analogous to Wilkins, where a number of factors had led to the plaintiff suffering catastrophic injury in a diving accident at a public swimming pool. The highlighted parts of the above extract demonstrate that Wilkins was directed the threshold for causation, not breach.

86. The defendant made the point in submissions that for the plaintiff to succeed, she must establish that the action or inaction on the part of the defendant in at least of the two consultations resulted in some quantifiable damage to the plaintiff.

87. Of relevance to causation in this case, the plaintiff must prove that she would have had a better outcome. It is not enough for the plaintiff to prove that she lost a chance of a better outcome (here, the chance of a more positive prognosis). In a claim for personal injury damages arising from medical negligence, the loss of a chance of a better medical outcome is not compensable damage unless the better outcome is the probable result but for the defendant’s negligent conduct: see Tabet v Gett [2010] HCA 12; 240 CLR 537 (Tabet v Gett) at [31], [46], and [111].

88. For causation to be made out, the plaintiff must establish on the balance of probabilities:

(a) First, that her non-Hodgkin’s lymphoma both existed and was diagnosable at the time of the first consultation, or alternatively the second consultation, meaning that it was able to be discovered on the investigations that a reasonably competent general practitioner would have carried out.

(b) Second, that had the defendant not failed to take those precautions, the condition would likely have been diagnosed earlier and:

(i) earlier treatment would have resulted; and

(ii) more probable than not, the plaintiff would have avoided the “harm”, being the injuries and disabilities particularised in her claim; or

(iii) more probable than not, the extent of the injuries and disabilities that were suffered would have been less.

Loss

89. The injuries and disabilities alleged to have been suffered as a result of the defendant’s negligence (in particulars filed on 3 March 2021) are as follows:

90. PARTICULARS OF INJURIES 2.1. An increase in size of the Plaintiff’s osteoblastic skeletal metastases; * 2.2. Worsening of the Plaintiff’s Non-Hodgkin’s Lymphoma; * 2.3. Spinal cord compression; * 2.4. Secondary effects of chemotherapy and radiation treatment, including an injury/degradation of her hip bone, requiring surgical intervention and her ongoing disabilities arising from same; * … 2.5. Pneumonia, arising from her compromised immune system and a consequent need to be hospitalised for treatment … 2.6. Inability to be cured of Non-Hodgkin’s Lymphoma; 2.7. Terminal Non-Hodgkin’s Lymphoma. 3. PARTICULARS OF DISABILITIES 3.1. Severe and increasing pain between 17 October 2016 until the diagnosis of Non-Hodgkin’s Lymphoma; 3.2. Increased pain and other disability associated with her worsened Non- Hodgkin’s Lymphoma, spinal cord compression and other injuries; * 3.3. Weight loss; * 3.4. Need for hospitalisation; * 3.5. Reduced capacity to undertake domestic duties; * 3.6. Reduced capacity to undertake her usual range of recreational, social and leisure activities; * 3.7. The need to: 3.7.1. Consume prescription medication; * 3.7.2. Receive additional treatment for [non-Hodgkin’s] Lymphoma; * 3.7.3. Undergo stem cell transplants; * 3.7.4. Undergo chemotherapy or additional chemotherapy; and 3.7.5. Undergo tests and investigations … ;* 3.8. The need for additional domestic assistance and quasi-nursing care; * 3.9. Loss of independence during recovery; * 3.10. Exacerbation of adjustment disorder with mixed emotional features; * … 3.11. Psychological injury including anger, memory loss and confusion, with exacerbation of anxiety and depression; * 3.12. Decreased life expectancy to less than 12 months. * Injuries and disabilities marked (*) are continuing.

Alternative claim in Contract

90. For completeness, I note there was a separate claim in contract pleaded by the plaintiff, but it was not addressed during the hearing and has been assumed to mirror the allegations in the negligence claim. The defendant expressly did not address on it on the basis that it had not ultimately been pursued by the plaintiff, and I have taken the same course.

Did the defendant breach his duty of care in relation to the first consultation?

91. It will be recalled that the breaches alleged were a failure to:

(a) properly investigate the symptoms and complaints of the plaintiff;

(b) follow up with the plaintiff after the consultation;

(c) refer the plaintiff for investigations; and

(d) refer the plaintiff to a specialist or other medical practitioner.

92. For reasons that follow, I am not persuaded that there was a breach of the general practitioner’s duty of care in the circumstances of this case. I accept the defendant did not investigate the plaintiff’s symptoms and complaints as fully as what ought to have occurred, but the consult as a whole and the circumstances that existed at that time must be viewed together to determine whether an individual failure was also sufficient to establish a breach of duty of care.

93. The other three matters of not following up with the plaintiff after the consultation, not referring the plaintiff for any further investigations, and not referring the plaintiff to a specialist were also made out on the evidence. Again, however, establishing that the conduct occurred does not prove that a breach of duty occurred.

Expert evidence in relation to breach

94. Dealing first with the evidence of the two expert witnesses relevant to the question of breach: (a) Associate Professor Peter Clyne, General Practitioner, gave evidence in support of the plaintiff’s case; and

(b) Dr Elizabeth Marles, General Practitioner, gave evidence in support of the defendant’s case.

95. There was no issue with the experience or expertise of either witness. Each was cross-examined and in terms of a general approach at a first examination, there was a significant degree of concurrence in the steps that should have been taken.

Associate Professor Clyne

96. Associate Professor Clyne outlined the appropriate course during a consultation as being to take a proper history, then conduct a physical examination, and then to consider whether any imagery or test is required to form a diagnosis.

97. His evidence was that non-Hodgkin’s lymphoma is a rare explanation for symptoms initially presenting as leg or back pain. He had seen about three cases of non- Hodgkin’s lymphoma in his 45 years as a general practitioner, 25 of which he spent in clinical practice.

98. In his experience, patients are usually able to classify their own pain “reasonably accurately”. He said that unless there was evidence to the contrary (presumably arising from the history or physical examination), a general practitioner would accept an eight out of ten as being “very severe” pain.

99. Ass. Professor Clyne was critical of both the history and examination taken by the defendant in October 2016. In his view, a proper examination would have included examining for possible nerve root compression, and required looking for sciatic nerve irritation, deep tendon reflexes and importantly of muscle strength and any evidence of muscle atrophy.

100. The doctor further considered that if a person presented with 8 out of 10 pain in a lower limb, with no history of trauma, in the absence of a diagnosis, a competent general practitioner would have investigated with imaging tests in addition to the blood tests that were ordered. However, he was not able to say what specific imaging would have been ordered at that initial stage, because the clinical notes were so poor and there was not a thorough examination undertaken.

101. When asked about the use of time as a diagnostic tool (being to wait until a patient returned after a period of time), Ass. Professor Clyne accepted that sometimes general practitioners allow time to assist with diagnosis, and “allow things to develop”. However, he stressed that the use of time as a diagnostic tool must be treated very carefully as a disease may progress.

102. His view was that sending a patient away undiagnosed where pain was reported as being 8 out of 10 would not be consistent with appropriate practice. The blood test results meant that the patient did not have any diagnosis as at 18 October 2016. It was inappropriate to assume a patient in those circumstances would turn up later in the system – that was not proper clinical practice in terms of forming a diagnosis.

Dr Marles

103. Dr Marles considered that the reasonably skilled general practitioner on an initial consultation would be expected to do two things: first, make a diagnosis or form an impression as to what the doctor thought was going on initially; and second, formulate some sort of a plan as to what the strategy or follow up actions would be. If the doctor was not able to diagnose, then the practitioner should undertake primary investigations to rule certain things out, starting reasonably with the more common ailments.

104. By reference to research, Dr Marles reported that non-Hodgkin’s lymphoma has an incidence of 15 out of 100,000 women in Australia, constituting an “uncommon” presentation in general practice.

105. Similar to the view expressed by Ass. Professor Clyne, Dr Marles was critical of the defendant’s clinical notes of the first consultation, describing them as substandard. However, she maintained that notwithstanding this, the defendant’s actions overall would be widely accepted in Australia as competent professional practice.

106. Dr Marles also agreed with Ass. Professor Clyne that general practitioners use time as a diagnostic tool to manage uncertainty, which she said is a daily issue in general practice. General practitioners often cannot make a diagnosis on the first presentation of a particular symptom, and frequently await and rely on the progression of symptoms over time to confirm or rule out a diagnosis. Consequently, there is much more uncertainty where a patient presents for the first time before a practitioner, such as the present case.

107. For this reason, Dr Marles considered that the defendant’s limited investigations in the first instance were appropriate given that the condition had only been present for eight days.

108. In relation to following up with a patient in circumstances where a negative blood test result has excluded the initial differential diagnosis, Dr Marles’s view was that it was appropriate for a general practitioner not to recall a patient if their complaint is short term pain, as the vast majority of musculoskeletal pain will get better on its own.

109. She considered it appropriate to leave it to the patient to see whether they thought they needed to come back because their pain was not resolving, or it was getting worse. However, the use of time as a safe diagnostic tool in that circumstance was predicated on the general practitioner “safety netting the consultation”. In this case, that was the act of directing or asking the patient to come back if symptoms persist or if there are any new symptoms. If there is no “safety net”, then the assumption cannot be made that the non-return of a patient means their condition has resolved.

110. Dr Marles considered that the reasonableness of leaving a follow-up consultation in a patient’s hands also depended on the patient’s psycho-social factors, their level of access to a doctor and their proclivity towards seeking out medical help. When assessing how proactive one should be with a patient, Dr Marles also accepted that general practitioners do take into account the level of education and socio-economic position of a patient.

111. During cross-examination, Dr Marles considered the position if a practitioner had not communicated what he thought was the initial diagnosis and where the doctor had not “safety-netted” the consultation, by impressing upon a patient to come back if the symptoms did not resolve. Dr Marles said:

… if it wasn't communicated that, you know, what [the doctor] thought was going on, that it was a short-term musculoskeletal pain that – if that wasn't communicated, then the patient was left with no diagnosis and no plan and I guess in those circumstances, it then is left with the patient to return because they're not satisfied that their symptoms have been dealt with appropriately.

Evaluating the steps taken by the defendant at the first consultation

112. I will address the various components of the first consultation – taking the history and recording the symptoms, examining the patient, forming a diagnosis, and the advice given (as to treatment plan or strategy), which includes referrals.

History and Clinical notes

113. The starting position is what the symptoms were. On the findings above, there was significant pain in the plaintiff’s left leg and the defendant knew this had existed for more than a week. The defendant knew that there had been some pain for a number of months, although not to the 8 out of 10 level reported by the plaintiff as the immediate cause for her attending the Practice in October 2016.

114. The plaintiff was also known to the Practice, and to that extent, her history of poor mental health was known, but this was effectively a first presentation for the complaint in question.

115. The history that was taken was brief. I accept the criticisms of the expert general practitioners that the lack of detail does not meet the standard of clinical record that would have been made by a reasonably skilled general practitioner, in that an accurate history of the pain, including which leg it was, where it was in the leg, and the consequences it had for the plaintiff (such as a limp or dragging the foot), did not occur.

116. However, the clinical record is only part of the overall investigation and examination of the plaintiff, and I do not consider that the lack of more detailed notes affected the outcome of the first consultation in terms of examination, treatment, or advice. Its significance was not such that it tainted the first consultation to the point where it could be said that the defendant breached his duty of care.

Examination

117. Although Ass. Professor Clyne considered that a more thorough examination should have been undertaken, the fact that a more thorough investigation could have been done does not mean that what was done by the defendant fell short of the reasonable standard required. It is important to remember that the Court assesses any shortcomings in what was done by reference to what was reasonably necessary to guard against an identified risk.

118. It is clear the defendant did conduct at least a basic examination. The defendant attempted to identify visible redness or tenderness, presumably to see whether there was an infection requiring hospitalisation, or perhaps something like a thrombosis, requiring urgent medical attention. Following the examination that he did conduct, the defendant recorded that there was no back pain.

119. The defendant’s evidence was that he was not “worried about something significant” in this case. If the examination is viewed as part of the precautionary measures taken to guard against an undiagnosed but serious condition, the examination that was conducted was sufficient to inform the defendant that whatever was causing the pain did not require immediate hospitalisation or treatment and otherwise that some form of further testing would be required in order to understand more about what was going on. Accordingly, although in isolation it was not as thorough as it could have been, when considered as one part of a number of other steps being taken by the defendant, the examination was not so poor as to breach the duty of care owed by a reasonable general practitioner.

Diagnosis

120. None of the expert evidence indicated that the defendant, acting reasonably, would or should have contemplated non-Hodgkin’s lymphoma as a potential diagnosis at the first consultation, even with a more thorough examination. It was agreed by the experts to be uncommon, and the defendant’s own experience was that he had only seen 10 cases in his considerable years of medical practice. He did not comment on how many of those had an initial presentation of significant leg pain.

121. Drawing upon the expert evidence, with the symptoms as described, a differential diagnosis which did not include non-Hodgkin’s lymphoma as a condition to immediately investigate at that point was reasonable.

Advice and Treatment

122. Similarly, the expert evidence did not suggest that blood tests were an inappropriate first step. The issue was whether the defendant should have gone further, based on what the reasonably skilled general practitioner would have done in the above circumstances.

123. There was plainly more that could have been done in addition to blood tests to investigate the pain in the plaintiff’s leg. Any x-rays that may have been ordered, or further referrals that could have been written, were not actions taken by the defendant . In that sense, the defendant did not fully investigate the symptoms and complaints of the plaintiff at that first consultation. However, the differential diagnosis as a starting point was to see whether there were any deficiencies.

124. The history taken was sufficient to establish at least that there was no trauma reported, a matter which I have taken to be relevant to considering whether something was broken which may have required a timely x-ray. I accept what was noted by Ass. Professor Clyne in his supplementary report, that diseases that cause pain in the lower limbs are not restricted to trauma, and that appropriate imaging can identify signs associated with those diseases. However, I do not accept that not ordering such diagnostic tests on the first presentation was a failure to accord with what competent general practitioners would have done. In circumstances where there was no symptom that indicated urgency, it was not unreasonable to take a staggered approach to working out the cause of the plaintiff’s pain at the first consultation.

125. The medical evidence supports the view that many instances of leg pain do subside without treatment. As the significant pain may have subsided over a reasonable period of time (which I take to be the length of time for which the defendant prescribed pain relief), an x-ray on first consultation may have been considered premature. Specifically, ordering an MRI of the lumbar spine would have been a leap. I am not satisfied Ass. Professor Clyne’s opinion went as far as to say that would have been the option pursued if the defendant has undertaken a more thorough examination.

126. In the absence of any x-rays, I further accept that the basis for immediate referral to a specialist did not yet exist, on the symptoms described by the plaintiff at first presentation.

127. The next consideration is what the defendant’s obligations were once the blood test results had ruled out iron deficiency related causes of the plaintiff’s pain (whether such pain had existed for months or eight days).

128. The day after the first consultation, the plaintiff had received her blood test results and no further action was taken. At that point, she was left without a diagnosis, and without advice as to any course of action to take other than the painkillers prescribed.

129. Both Dr Marles and Ass. Professor Clyne considered that an initial diagnosis and strategy or plan was expected from a reasonably skilled general practitioner. This could have included allowing some time for the pain to resolve on its own if the consultation was either “safety-netted”, or some form of follow up action was taken either while that time was passing or after it had passed.

130. The defendant accepted that a follow up phone call upon receipt of the blood tests was not too burdensome for an individual patient. In my view, when regard is had to the volume of patients passing through the Practice and requiring blood tests, the burden of a follow up phone call for those who had received normal blood test results which could be communicated by a receptionist may be seen in a different light.

131. In any event, the more critical question is whether the precaution the defendant actually did take was reasonable. The defendant’s evidence was that he relied on the plaintiff to be proactive and ask for another consultation if her pain continued.

132. On the basis of that evidence, the defendant did not follow best practice, because having chosen a strategy that did not fully investigate the plaintiff’s symptoms and complaints, he did not put in place a regime at that first consultation that would have ensured the plaintiff understood:

(a) that the defendant was ordering the blood tests to rule out possible causes of the pain;

(b) the defendant was also using time as a diagnostic tool;

(c) the defendant would expect to see some improvement in the plaintiff’s pain in a certain period of time; and

(d) the plaintiff was to return to see the defendant for further investigations if the pain did not improve within that space of time.

133. For example, the defendant could have booked in the plaintiff for a further appointment in two weeks, to be cancelled if the blood tests showed nothing and the pain had resolved.

134. Alternatively, he could have made it clear at the first consultation the plaintiff understood that part of the treatment strategy relied upon her taking responsibility to return if the pain was still present within a particular timeframe even if she had received normal blood test results.

135. If time was being used as part of a stepped approach to diagnosis, it would also have been prudent for the defendant to record that such advice had been given, at the very least, for any future treatment provider or general practitioner at the Practice to have a proper understanding of what the plaintiff had been told was the strategy arising out of the first consultation.

136. Whatever safety net the defendant might have devised, these examples demonstrate that there were avenues the defendant could have taken that were not burdensome in terms of cost or time: see s 43(2)(c) of the CLW Act. There were options that would have permitted the receptionist at the Practice to provide the results of the blood test without the defendant then making a follow up phone call requesting the plaintiff to return.

137. In what transpired, the plaintiff was left without a diagnosis and a plan, when the strategy intended by the defendant was that normal blood test results were not the end of his investigations, but rather a gateway to pursuing other investigations, such as x-rays, if the plaintiff’s pain continued.

138. However, the question is whether what the defendant did in the circumstances faced at the time was less than what would be expected of a reasonable general practitioner. Given the variety of causes of leg pain, I think some significance must be given to Dr Marles’ evidence that it was appropriate for a general practitioner not to recall a patient if their complaint is short term pain, as the vast majority of musculoskeletal pain will get better on its own.

139. In circumstances where it was uncontroversial as between the experts that leg pain may get better on its own, even pain that had occurred for a number of months, in my view, the reasonable general practitioner was entitled to assume that a patient in the plaintiff’s position would come back of their own volition if the pain persisted at a level above that of a minor irritation, even if not proactively spelling it out for the patient.

140. The basis for the entitlement to make that assumption in this case is that the plaintiff had been moved to attend a general practitioner in the first place because of her significant or extreme leg pain. It is therefore reasonable to assume that she would do so again if the pain persisted.

141. The experts’ view (which I accept) was that the individual circumstances of a patient was a matter relevant to the course that a general practitioner might take. I have therefore given consideration to whether the defendant ought to have been alert to particular vulnerabilities stemming from socio-economic factors, culture or education, as being circumstances that may have modified the precautions a reasonable general practitioner would have taken to guard against the risk identified above.

142. In this case, the plaintiff was an Indigenous woman in her early fifties, was in poor mental health, had limited education, and had been on a disability pension for many years. These were all matters of which the defendant either knew or ought to have been aware from the history of attendances at the Practice.

143. Ultimately though, I am just not convinced that the defendant acting with reasonable competence ought to have been more proactive, even knowing those factors. Following that first consultation, I remain unpersuaded that a reasonable general practitioner would not have first relied in some way on seeing whether the pain dissipated over time with pain relief to manage the symptom in the meantime, and the plaintiff then re-presenting – either at the Practice or elsewhere in the system (being the defendant’s thinking) – if her pain had not resolved. The position may have been different if the defendant had seen the plaintiff on a previous occasion and knew the pain relief prescribed was still necessary or had been ineffective, but that is not this case.

Did the defendant breach his duty of care in relation to the Second Consultation?

144. As set out in the summary of the plaintiff’s claim above, the breaches alleged in relation to the Second Consultation were a failure to:

(i) take a proper history;

(ii) perform an appropriate and proper physical examination;

(iii) properly advise and treat the plaintiff;

(iv) refer the plaintiff for investigations; and

(v) refer the plaintiff to a specialist or other medical practitioner.

145. Under those categories, the plaintiff submitted that the defendant failed to:

(a) take a comprehensive history;

(b) perform an appropriate examination;

(c) correctly interpret the physical signs of the plaintiff’s disease, including the plaintiff having “acute” lumbar pain radiating into her left leg;

(d) refer the plaintiff for investigations in order to exclude possible causes of the acute lumbar pain radiating into her left leg;

(e) take into account the plaintiff’s complaints of incontinence when considering a diagnosis, or considering what action to take in relation to the plaintiff’s symptoms; and

(f) take into account the pathology report (results dated 21 June 2017), which was elevated and indicated serious pathology, such as inflammation, infection or malignancy, when considering a diagnosis or considering what action to take in relation to the plaintiff’s symptoms.

146. The symptoms reported by the plaintiff are set out at [43]-[44] above. The plaintiff presented with lumbar back pain, “acute pain” as before, radiating to the left leg, no numbness (although the defendant’s oral evidence was that there was some numbness) and pain on the plaintiff’s left knee on movement and weight bearing. She also had severe hip pain.

147. Much of the expert evidence as to what was reasonable at the first consultation was relevant to the defendant’s conduct at the second consultation and will not be repeated.

The asserted failure to take a proper history or conduct an appropriate examination

148. The expert evidence was critical of the physical examination, the lack of a focussed history undertaken and the lack of investigations or specialist referral at the second consultation by the defendant.

149. However, the second consultation in July 2017 did not occur in a vacuum. The patient’s history taken at that consultation has to be viewed in light of the previous consultations and in particular, the consultation that had occurred with Dr Jazwari in June 2017 and the investigations that had been done at that time.

150. Again, merely pointing to a history that was brief or an examination that was not comprehensive does not assist on the question of breach unless it is relevant to guarding against the risk identified. Taking into account that the diagnostic and investigative process carried out by the defendant at the second consultation were a continuation of Dr Jazwari’s investigations, the examination and history taken did not fall below what was reasonably required to guard against the risk in question here.

The asserted failure to correctly interpret signs of the plaintiff’s disease, including failure to take into account other symptoms and pathology

151. There were competing views about what should have been interpreted from the blood tests. Professor Fox, a specialist oncologist whose opinion is discussed further below, considered the elevated results were indicative of serious pathology such as inflammation, infection, or malignancy. Dr Marles, on the other hand, considered that the results were not an indication for urgent referral.

152. The defendant is to be judged against the standard of a reasonably skilled general practitioner, not of a specialist oncologist. Although an oncologist might have read the blood test results in a different way, I am not persuaded that the results were such as to require the reasonably competent general practitioner to refer the plaintiff to an oncologist at that point, without having at least obtained further relevant x-rays. Even with elevated blood results, it was reasonable for those x-rays to be carried out before considering what specialist referral was appropriate.

153. Similarly, there was criticism in the defendant not considering the plaintiff’s incontinence as a symptom relevant to a differential diagnosis other than arthritis. But the plaintiff’s incontinence may reasonably have been entirely unrelated to the pain. While it is a symptom that could have caused a different general practitioner to focus on a potential diagnosis of cancer in addition to or instead of arthritis (a condition both more common and less sinister than that ultimately diagnosed), I am not persuaded that it is a symptom that unambiguously would have changed the approach taken by a reasonably skilled general practitioner.

154. On balance, the expert evidence does not establish the plaintiff’s symptoms were such that they would have caused the reasonably skilled general practitioner to take different precautions. Requesting x-rays of the plaintiff’s hip, left knee and a pelvic x-ray, and an ultrasound of her left gluteus muscles was reasonable insofar as those scans targeted areas where pain was reported.

The asserted failure to request an MRI of the lumbar spine or refer the plaintiff to a specialist

155. At the time of the second consultation, the defendant had available:

(a) the notes of Dr Jazwari on 19 June 2017, the contents of which are summarised above;

(b) the CT scan report of 21 June 2017 which did not disclose a spinal cause of the plaintiff’s pain (it was essentially normal);

(c) an ultrasound of the upper abdomen taken on 22 June 2017, which was also normal; and

(d) recent blood tests which showed some abnormalities.

156. Some diagnoses had been excluded by the tests ordered by Dr Jazwari, and no x-rays had been taken of the areas where the plaintiff indicated she now also felt pain – the left leg and left hip.

157. I accept that the defendant could have sent the plaintiff for an MRI of the lumbar spine, given that the pain in that area was acute, but not that acting reasonably, he should have done so, in circumstances where other areas of pain had also been identified by the plaintiff and the CT scan of the lumber spine had not shown any abnormality.

158. The plaintiff’s case on breach in relation to the second consultation suffers from reviewing the defendant’s conduct with hindsight. The plaintiff’s results and symptoms at the time the defendant made the decision to order x-rays, rather than an MRI or a specialist referral, were not such as to make the defendant’s provisional diagnosis and consequent investigations inappropriate.

159. That Dr Jazwari referred the plaintiff for an MRI of the lumbar spine, and then for specialist consultation shortly after the plaintiff saw the defendant, does not mean that the defendant’s conduct in ordering an x-ray of a different part of the plaintiff’s body a month earlier failed to accord with reasonably competent practice. Indeed, although Dr Jazwari was not called to give evidence, it seems likely that the results of the x-rays ordered by the defendant (which excluded arthritis as a diagnosis) and the pelvic x-ray report influenced the next steps taken by Dr Jazwari, being the MRI ordered on 21 August 2017, which in turn led to two biopsies and the critical diagnosis by a specialist.

160. To the extent that the case on breach includes criticism of the defendant in not proactively recalling the plaintiff or issuing a further referral after receipt of the x-ray reports, the evidence is not entirely clear as to what led the plaintiff to re-present to the Practice two weeks after those x-rays were carried out, where she was seen by a different doctor to discuss the results. It may be that the defendant asked for the plaintiff to make a further appointment. Or it may be that the plaintiff made the appointment unprompted.

161. There was some delay, both in the timing of the x-rays being carried out in August, and a short delay in the plaintiff returning to the Practice to discuss the results of the scans ordered by the defendant. But neither of those delays appears to be attributable to the defendant.

162. Properly characterised, the second consultation on 21 August 2017 was part of an iterative diagnostic process, which occurred throughout June to August 2017 between Dr Jazwari and the defendant. Having regard to the circumstances of the previous consultation at the Practice, and the fact that the second consultation was a step in the process and not a concluded investigation or diagnosis, I find that the defendant’s conduct did accord with that of a reasonably skilled general practitioner.

Assuming breach, did the defendant’s conduct cause the harm alleged?

163. If breach had been established, the next step would have been to consider whether the defendant’s conduct at the first or second consultations caused the harm alleged, or in the statutory language, whether the defendant’s conduct was “a necessary condition of the happening of the harm”. I have done so for completeness.

164. The case was run as two alternatives. If breach was established by the plaintiff in relation to the first consultation, the relevant delay in diagnosis would be from shortly after 17 October 2016 to the consultation with Dr Jazwari on 21 August 2017.

165. Alternatively, if breach had been established in relation to the second consultation, the relevant delay was said to be from shortly after 15 July 2017 to the consultation with Dr Jazwari on 21 August 2017.

The expert evidence as to the plaintiff’s condition and when it was detectable

166. The plaintiff led evidence from Professor Richard Fox, a haematologist and oncologist. The defendant led evidence from Dr Jonathan Page, an oncologist. Both prepared reports and gave concurrent evidence in the witness box.

167. The oncologist experts agreed that the plaintiff is suffering bone lymphoma, with associated lymph node involvement. The area of disagreement related to the time of onset of symptoms related to the lymphoma.

Professor Fox

168. Professor Fox’s opinion was that the likely explanation for the plaintiff’s pain, which started shortly before or in October 2016 and on her evidence continued until diagnosis, was that there was low grade lymphoma that transformed to high grade lymphoma in July 2017. Professor Fox said the cancer had most likely been progressing for 12 months.

169. Given the history of pain, Professor Fox said that the likely explanation was that at the time of the first consultation, there had been low grade lymphoma “bubbling away”. This was on the basis that:

… a significant proportion of large cell – diffuse large B-cell lymphomas start out as a low grade, maybe diffuse follicular of sorts, which can be quite slow growing and causing symptoms, and then rapidly transform into a high grade lymphoma.

170. Professor Fox thought that probably occurred here because after the plaintiff’s response to therapy in 2017, she subsequently developed Lymphadenopathy in her armpit, and this was biopsied with a fine needle which showed a low grade lymphoma. This suggested that the two different types of lymphoma were related.

171. According to Professor Fox, low grade lymphoma was the most reasonable cause for the plaintiff’s symptoms at the first consultation, which otherwise were inexplicable:

… it's logical to then conclude that this was lymphoma or some form of lymphoma from the beginning otherwise you've got to postulate some other relatively serious condition that was capable of causing this discomfort and weakness, … and then by magic it's changed to a lymphoma somewhere along the track. That just doesn't seem to be reasonable.

172. In respect of whether the lymphoma was diagnosable at the time of the first consultation, Professor Fox said that there was a good chance that on a PET scan, it would have been diagnosed in October 2016. He gave evidence that in 2016, PET scans were “commonly done”. However, I accept that the lymphoma was not detectable earlier than June 2017 by other investigations, such as an MRI.

173. In relation to the timing of a diagnosis if reasonable precautions had been taken at the first consultation which led to a PET scan being carried out, Professor Fox gave the following evidence:

… if … a real effort [was made] to find out why this woman had the issues she had with her legs and pain and weakness [and so forth], you would have made a diagnosis properly in, going through the process, two or three weeks.

174. If an earlier diagnosis had been made, Professor Fox said that on the balance of probabilities, this should have led to “complete remission and therefore a long disease-free [period] or potentially cure”.

Dr Page

175. Dr Page’s evidence was that the plaintiff’s lymphoma was found to be a B-cell diffuse large cell lymphoma of high grade, and that a particular entity Ki67 was present in 60% of the cells, confirming that this lymphoma was aggressive and progressing rapidly.

176. It was his opinion that the plaintiff’s leg pain, weakness and other symptoms related to this lymphoma were only likely to have been present for some weeks before diagnosis, probably around the time of the second consultation with the defendant on 15 July 2017, but more likely at the time of the consultation with Dr Jazwari on 21 August 2017.

177. In Dr Page’s view, if the plaintiff’s symptoms of leg pain and weakness prior to this time were causally related to the lymphoma, they would have been “constant and progressive, rather than intermittent with long periods of time between visits to the General Practitioner”. High grade lymphoma would not likely cause intermittent symptoms for 10-12 months.

178. Dr Page considered the position where the plaintiff had recurrent leg and back pain since 2016. His evidence was that the contemporaneous GP notes (across two different surgeries) did not reflect a history of a gradual increase in severity of leg weakness, leg pain, and back pain from around the time of the first consultation to her eventual diagnosis. He said:

… the medical entries on the different visits do not suggest that there’s a continuing, constant, intensive back pain of significance happening. There’s no evidence to suggest that. Furthermore, the lymphoma was of a type that would not have [been] causing symptoms for a year. And that’s clear in my report. And a CT scan performed on 21 June did not show lymphoma.

179. While Dr Page considered that a CT scan or an MRI scan or a PET scan performed at the time of the second consultation on 15 July 2017 would have demonstrated lymphoma, he considered any pain symptoms prior to that time were likely to be unrelated.

180. Dr Page disagreed with Professor Fox as to the view that the plaintiff had a low-grade lymphoma, which transformed to a high-grade lymphoma in July 2017. His evidence was that it was theoretically possible for a low-grade lymphoma to be present for some time and then at some point they may transform and become high grade. He considered that would usually be focal, with one or maybe two sites. In the present case, Dr Page pointed out there was no evidence of low-grade lymphoma on the first PET scan. The PET scan just showed three or four sites around the pelvis, in the sacrum, of high-grade lymphoma. It did not show any evidence of a background low-grade lymphoma.

181. Dr Page then considered a more recent biopsy in December 2020 of the plaintiff’s right armpit, which was reported as showing low grade lymphoma. Dr Page explained why that did not cause him to change his view about there being no low-grade lymphoma:

Now three months later, in March of this year, that lymph gland was completely removed and that showed high grade throughout. There was no mention of low grade. It showed the large B-cell lymphoma, the diffused large B-cell lymphoma, that we have known about since 2017. Fine needle biopsies can be misleading because the pathologist generally only receives a small number of cells but when the whole gland is removed there is no doubt so really there is no evidence of low grade anywhere. … …I think we're dealing with high grade. We do know from the CT scan that in June it did not show lymphoma, and in September it did, so went from nothing to showing a large mass of lymphoma. That's clear evidence of rapid almost fulminant progression. So this is something that turned up rapidly. It's not something that was hanging around for years – or for a year or for 10 months.

Did the plaintiff have low grade lymphoma as at the first consultation?

182. Both views of the expert oncologists were reasonable on the evidence and scans available.

183. If I accept Dr Page’s view, the plaintiff’s condition was high-grade lymphoma which did not exist as at the first consultation. Accordingly, whatever breach is attributed to the defendant at that time had no consequence.

184. As Dr Page pointed out, there were a number of occasions when the plaintiff saw medical practitioners after October 2016 and there is not a record of her suffering leg or back pain. These include the consultations at the Dickson Family Practice and with other doctors at the Practice.

185. There were also discrepancies in the clinical history, which the defendant submitted were relevant to the reliability of the plaintiff’s memory and pain history. These included the plaintiff’s memory of weight loss, which she thought occurred earlier than indicated in the medical records, which do not indicate any weight loss before October 2017, and that the Pharmaceutical Benefits Scheme (PBS) record was inconsistent with the plaintiff suffering significant ongoing pain, as it contains only three prescriptions of pain-relieving medication over the period between the two relevant consultations.

186. The defendant further submitted that a reference in the plaintiff’s care plan created by the Practice in March 2017 to “leg pain” needed to be understood in the context of the plan being populated from past clinical records, which would have included the first consultation, rather than being a record of the plaintiff reporting ongoing leg pain in March 2017.

187. The alternative view is that low-grade lymphoma existed as at the first consultation. The plaintiff’s evidence was that she had continued leg pain from at least October 2016 until her diagnosis of bone lymphoma. The plaintiff said her back pain “worsened” during that period, and there was no week or month where she did not have pain, including when she went on a cruise to Noumea in January 2017. In relation to her leg, she said that after taking the Anaprox prescribed by the defendant, there was a week or two when her leg “started to feel better” and she stopped limping

188. In addition, although contemporaneous clinical notes did not record an ongoing continuity of pain (in that leg pain is not mentioned continuously by other doctors seen by the plaintiff in between the first and second consultations), the plaintiff’s history from July 2017 was largely consistent with recurrent, but intermittent, leg pain and extending to lower back pain.

(a) The contemporaneous clinical note of Dr Jazwari dated 21 August 2017, recorded left leg pain and weakness for one year. Similarly, the MRI referral from Dr Jazwari to Dr Damian Smith (orthopaedic surgeon) of the same date records “one year history of significant leg pain, mild lower back pain”.

(b) A letter from Dr Choi of Canberra Hospital Haematology to Dr Peter Ragg dated 12 October 2017, records “left leg weakness and lower back pain for over 10 months”.

(c) A letter from Dr Grant Buchanan of the Radiation Oncology Department of Canberra Hospital to Dr Choi dated 13 October 2017 records the plaintiff describing “intermittent leg pain for approximately a year”.

(d) A referral and treatment recommendation from the ACT Health Capital Region Cancer Service dated 1 November 2017, records “leg weakness and lower back pain for over 10 months”.

189. Even if I accept Dr Page’s point that those references may simply be repeating a history given to Dr Jazwari at the consultation in August, accounts of a history of pain for a number of months prior to June/July 2017 were supported by lay evidence from other witnesses:

(a) Mr Austen, the plaintiff’s husband, said his wife was complaining about pain in her legs “at least six months” before diagnosis;

(b) Carey Austen, the plaintiff’s son, observed his mother experiencing leg, hip and back pain from the time Ms Austen went on a cruise to Noumea with her friend Claire Rosemary Warren on 18 January 2017 that “gradually got worse over that time period”; and

(c) Clare Rosemary Warren, who gave evidence that Ms Austen had complained about a sore leg and back pain for “probably about six months” before they went on the cruise in January 2017.

190. On balance then, and for the purpose of dealing with the arguments fully notwithstanding my findings on breach, I have accepted in the plaintiff’s favour that she had low grade lymphoma from at least October 2016, and that it became high grade lymphoma from shortly before 2017. Primarily, that is because there was no other explanation in the evidence before the Court for her leg pain, which was clearly identified in October 2016 at the first consultation, and there is sufficient corroboration for the finding that although it may have been experienced at different levels over the ensuring period, it never really went away.

Did any breach arising out of the first consultation cause a delay in diagnosis?

191. On the basis of the finding that low-grade lymphoma existed in the plaintiff as at October 2016, the counterfactual arises for consideration. I find that it could have been detected, but only by a PET scan at that early stage.

192. Drawing on the expert evidence, if x-rays were carried out of the plaintiff’s left leg, hip, and pelvis, including perhaps a CT of the lumbar spine in October 2016, and with the blood tests that were normal, the plaintiff’s low-grade lymphoma would not have been detected. A PET scan at a first consultation would have been unjustifiable and it is important to note that a referral would have first been necessary because the evidence was that a general practitioner could not order a PET scan.

193. Accordingly, on the counter-factual, with the defendant ordering bloods and x-rays (of the left leg), even if that extended to include an MRI, it is hard to accept that it would have disclosed the condition.

194. Ass. Professor Clyne was of the view that because the task of a general practitioner is to diagnose the cause of the pain, if all the basic x-rays and blood tests had been normal and the general practitioner was unable to confirm a diagnosis, that is the point when the plaintiff should have been referred and she “may well have ended up with a PET scan”.

195. Although working out the counter-factual obviously depends upon a degree of speculation, I think realistically that a process whereby the plaintiff ended up with a referral to a specialist and a PET scan at a point earlier than when the disease escalated in June/July 2017 is unlikely.

196. It must be remembered that for a number of weeks, the pain relief prescribed by the defendant was effective in allowing the plaintiff to carry on, to the point where she walked without a limp. On the counter-factual, if the same two-week pain relief occurred, and the plaintiff was at that point armed with extra x-rays which did not reveal any abnormal information in addition to the normal blood tests that had been ordered by the defendant, I do not accept that on balance, the plaintiff would have then re-presented to the Practice for further testing or referral, so as to end up with a PET scan at a time earlier than June 2017.

197. That conclusion is fortified because the plaintiff did in fact re-present to the Practice in December 2016 and January 2017, without raising the pain in her leg on either occasion. Such conduct indicates that even with further x-rays being carried out, she is unlikely to have returned to seek further assistance before the time that she did (June 2017).

198. Accordingly, assuming any breach by the defendant at the first consultation, the evidence does not establish that the breach caused a delay in diagnosis at that time, because the disease was in such an early stage that reasonable testing would not have been likely to identify it.

Did any breach arising out of the second consultation cause any delay in diagnosis?

199. I have assumed that but for the defendant’s breach, at the second consultation with the defendant, the plaintiff would have been referred for an MRI of the lumbar spine, this would have disclosed the same information that was disclosed when it was actually carried out, on 1 September 2017.

200. Given that the delay in the plaintiff obtaining the x-rays ordered by the defendant at the second consultation was not attributable to the defendant’s conduct, the same 24-day delay is to be assumed in relation to any hypothetical MRI scan of the lumbar spine.

201. Assuming an MRI of the lumbar spine was carried out on 8 August 2017 (24 days after the second consultation), and the report given to the Practice on 9 August 2017, and assuming that the subsequent testing occurred with the same urgency once the results of the MRI were known, at best, the delay in diagnosis is a little over three weeks.

202. The plaintiff did achieve a period of approximately 17 months in remission from chemotherapy treatment. That was the evidence, but the dates between declaration of remission (18 May 2018) and the date of the scans confirming relapse (9 August 2019) suggest a remission period closer to 15 months.

203. That is relevant to the counter-factual. Dr Page’s evidence was that had chemotherapy commenced in early August, there may have been a further 12 months in remission. I accept that view, but at best it is a possibility, not a probability.

204. Although Professor Fox considered that a diagnosis months earlier, in 2016, would have resulted in the plaintiff being free of non-Hodgkin’s Lymphoma, he accepted that from July 2017, what the plaintiff was facing was an improved period in remission, not a complete avoidance of the disease.

205. That is, had there not been that brief delay, it is the case that even if diagnosed and consequently treated a number of weeks earlier, the plaintiff would still have relapsed. What the plaintiff thus lost, in respect of an assumed breach arising out of the second consultation, was the chance of a better outcome in terms of a longer period of remission. I have assumed in her favour, for the purposes of assessing damages, that this better outcome (an extra 12 months’ remission) would have materialised.

Damages

206. If breach and causation had been established, for completeness and for the benefit of the parties I have also considered damages.

207. In circumstances where there were a number of alternative cases pursued, unless otherwise stated in what follows below, I have assumed the most favourable factual scenario to the plaintiff of a breach of the first consultation, where but for that breach, the plaintiff would have eventually been referred to a specialist for a PET scan, which would have achieved a diagnosis of low-grade lymphoma by January 2017. She would then have been treated in early 2017 and been in ongoing remission.

General Damages

208. Starting with what may be basic principles relevant to this aspect of the claim, general damages for negligence are compensatory, not punitive: Skelton v Collins [1966] HCA 14; 115 CLR 94 at 128 (Skelton), cited in Reeve v Commonwealth [2014] ACTSC 1 at [437].

209. The relief awarded should reflect both lost years and compensate the plaintiff for pain and suffering and loss of enjoyment of life: see Young v Rothin [2009] ACTSC 71 at [200] and the cases there-cited.

210. The assessment of general damages turns on the fact-finder’s impression of the plaintiff: Tsueneaki v Stewart [2013] ACTCA 34 at [30]; Amin v Vidal [2020] ACTSC 227 at [80].

211. At the time the matter was heard, the plaintiff was 55 years of age (she is now 56 years of age). She was an active caregiver in her broader family and Indigenous community. She lived with her husband, Mr Austen, and Carey Austen, who is the her biological son. Often at the house were also Ebony and Connor, who were 25 and 21 years old respectively at the time of the hearing. They are the plaintiff’s niece and nephew but were raised by her. She is clearly deeply invested in the lives of these young people and looks on them as her children. The plaintiff also has 14 grandchildren. Her grandchildren range from 1 to 17 years old. She has taken a very active role in their upbringing and daily lives, taking them to various appointments and extracurricular activities. On the weekends, and on occasion during the week, most of the grandchildren were at her house or were being supervised by the plaintiff.

212. The plaintiff’s evidence was that she has reduced social interactions, can no longer have her grandchildren over as regularly, can no longer drive, and that there has been a burden on her family because she is so sick. She feels very sorry for her family as a result, but considers they handle her illness well. I took from the plaintiff’s own evidence and the medical evidence before the Court that she has faced (and is facing) chemotherapy, radiation, surgery and associated exhaustion, nausea and extreme pain, not to mention the impact on her mental load of all the appointments for treatment and tests.

213. Critical to the assessment of general damages here is the plaintiff’s reduced life expectancy as a result of the disease. At the time he wrote his report, Professor Fox considered that the plaintiff’s prognosis was so bleak that her life expectancy was not beyond 12 months. The defendant’s estimate, as at the date of hearing, was a life expectancy of five years. I have adopted the more hopeful prognosis submitted by the defendant, namely that the plaintiff’s life expectancy has been reduced (as at the date of judgment) by 26 years. In the event that the consideration on damages becomes more significant by virtue of any subsequent appeal, this may of course be a matter on which updating medical evidence is provided.

214. Thus, as well as the physical impact of such a prognosis, the plaintiff has had to come to terms with her illness being terminal, and to manage telling her loved ones. She is presently going through the uncertainty of living with a terminal illness and all the stress that undoubtedly arises from that. Also in evidence was a report from Dr William Knox, psychiatrist, as to the state of the plaintiff’s mental health. He considered it likely, and indeed it is indisputable, that there would have been an increase in the emotional distress of the plaintiff in light of her current prognosis.

215. The determination of the plaintiff’s life expectancy should be by reference to the prospective, rather than historical, actuarial life expectancy tables published by the Australian Bureau of Statistics: Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; 229 CLR 498; 81 ALJR 919 at [70]. Based on the national actuarial life expectancy tables for 2018-2020, her life expectancy as at delivery of judgment would have been 31 years.

216. The plaintiff accordingly sought damages for pain and suffering, ranging from between $280,000 with a life expectancy of five years, to $375,000 if the plaintiff’s life expectancy was seven months. No distinction was drawn between whether breach was established at either the first or second consultation.

217. The defendant sought to address a number of different alternatives, depending on which of the various factual outcomes were established:

(a) If the plaintiff had established a breach in relation to the first consultation, and the plaintiff had diagnosable cancer at that time, what she lost by the delay in diagnosis was avoiding the disease altogether. The defendant submitted $150,000 would be appropriate compensation for pain and suffering.

(b) If the plaintiff had succeeded only in relation to the second consultation, the defendant submitted that for a delay of 2 months – with the consequence of a loss of a longer period of remission – the appropriate compensation for pain and suffering would be $100,000.

(c) If the period of delay was taken as being not from the date of the second consultation, but from 8 August 2017 when the x-rays were carried out (a matter of weeks), the defendant submitted that $15,000 was the appropriate figure.

218. Pursuant to s 99 of the CLW Act, the plaintiff relied upon George v Survery [2009] NSWSC 1348 in support of the quantum of damages sought, as a comparable case to establish an appropriate range for general damages. In that case, the Court (operating under a different statutory scheme involving consideration of damages as a percentage of the most extreme case) found that a doctor’s negligent failure to diagnose ischaemic heart disease or acute coronary syndrome in the 63-year-old plaintiff resulted in a roughly 10-year reduction in life expectancy, awarding $307,450 in general damages.

219. The plaintiff also relied upon Hulanicki v Walton [2014] ACTSC 17, in which this Court received guidance from the maximum award limits set out in NSW under the Motor Accidents Act 1988 (NSW) to award $375,000 in general damages to a 28-year-old plaintiff with a modest reduction in life expectancy. The defendant argued that decision was distinguishable due to the plaintiff’s age, the nature of her injuries and significant co-morbidities here, such as depression/anxiety which led to the plaintiff here having a disability pension for mental health reasons for many years.

220. On the assumption that the plaintiff had established that she would have been free of non-Hodgkin’s lymphoma, I would have awarded $300,000 in general damages.

221. Had the plaintiff established that there was a breach, but that she would not have avoided the disease altogether and would have instead achieved a longer period in remission, with a longer prognosis, the consequence would be that she would not have avoided the pain, suffering and stress that a terminal diagnosis brings. Damages would have consequently been assessed as being at $80,000. If the breach was only established in relation to the second consultation and the causal delay in diagnosis was a matter of weeks not months, I would have awarded $40,000.

222. Although the plaintiff suggested interest should be awarded attributing 80% of that sum to the past, the main reason for the figure is the loss of life expectancy, which is a future loss. In the absence of any good reason to adopt the plaintiff’s apportionment, I would have followed the more common practice, seen in cases such as Hauraki v Steinhoff Asia Pacific Limited t/a Freedom Furniture [2021] ACTSC 54 at [194]; and Perry v Pese [2018] ACTSC 205 at [38], HL v HP [2019] ACTSC 299 at [52], and Benning v Richardson [2021] ACTSC 34 at [94] of apportioning 50% to the past and 50% to the future and award interest at 2% on the past component.

Out of pocket expenses (treatment expenses)

223. The plaintiff claimed $173,192.47 in treatment expenses, of which 70% or $121,234.29 were claimed by way of past out-of-pocket expenses. The reason for that percentage estimate was because the plaintiff accepted that she would have required chemotherapy and radiation on one occasion regardless of any breach of duty by the defendant, and it was submitted as being too difficult to break down the past treatment expenses by reference to what one round of chemotherapy and radiation cost. The defendant submitted a buffer of $100,000 for past treatment expenses was appropriate. Having regard to the treatment expenses schedule provided by the plaintiff, I would have awarded $115,000 for past treatment expenses.

224. With regard to future treatment expenses, the plaintiff claimed a further $173,192.47 on the basis that whether she required intense treatment in a short space of time, or treatment during relapses over a longer period of time, it was nonetheless likely that she would incur the same level of medical expense as she had over the past 4 years (as at the date of hearing). The defendant submitted a buffer of $20,000 was appropriate but that submission was based on the more pessimistic estimation of the plaintiff’s future life expectancy given by Professor Fox. On the same life expectancy assumptions as those made above and noting that the ongoing duration and therefore cost of the most recent treatment was uncertain, I consider a buffer for future treatment expenses of $80,000 would have been appropriate.

Economic Loss

225. No claim was made for past or future economic loss as the plaintiff was in receipt of a disability pension and had been unable to work for many years.

Domestic assistance – past and future

226. It is clear on the evidence before the Court that the plaintiff played a critical role in the upkeep and care of her household and extended family, which suffered not only from the treatment she would have had to endure in any event, but also from her body’s deterioration consequent on the relapses in her non-Hodgkin’s lymphoma.

227. The plaintiff has therefore sought compensation for past and future domestic assistance in accordance with the principles set out in Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 and pursuant to s 100 of the CLW Act.

228. Section 100 of the CLW Act relevantly provides:

100 Damages for loss of capacity to perform domestic services (1) A person's liability for an injury suffered by someone else because of a wrong includes liability for damages for any resulting impairment or loss of the injured person's capacity to perform domestic services that the injured person might reasonably have been expected to perform for his or her household if the injured person had not been injured. (2) In an action for the recovery of damages mentioned in subsection (1), it does not matter— (a) whether the injured person performed the domestic services for the benefit of other members of the household or solely for his or her own benefit; or (b) that the injured person was not paid to perform the services; or (c) that the injured person has not been, and will not be, obliged to pay someone else to perform the services; or (d) that the services have been, or are likely to be, performed (gratuitously or otherwise) by other people (whether members of the household or not). (2) In this section: "wrong" means an act or omission (whether or not an offence)— (a) that gives rise to a liability in tort; or (b) that amounts to a breach of a contractual duty of care that is concurrent and coextensive with a duty of care in tort.

229. The section has been set out in full because there was an issue in this case as to the meaning of “household” (not defined in the statute) and what domestic services the plaintiff might reasonably have been expected to perform for the household.

230. The plaintiff claimed about $100,000 for past domestic assistance and about $120,000 for future domestic assistance over five years (again, from the date of hearing). The figures were supported by a report dated 8 October 2020, prepared by an occupational therapist, Mr Michael Malcomess (Malcomess Report). They were based on the delay in diagnosis resulting in a greater frequency of relapses, but also took into account that the plaintiff would always have required chemotherapy and experienced a degree of physical degradation even with a timely diagnosis. The Malcomess Report assessed compensable domestic assistance from the date of the plaintiff’s first relapse.

231. The plaintiff’s Aboriginal cultural heritage and family arrangements were material to the domestic assistance claimed, in that the plaintiff’s residence was considered the “family home”, and Mr Malcomess accordingly took into account the plaintiff’s intensive caring responsibilities for “between 7 and 10 grandchildren” aged between 7 months and 16 years. This involved full-time care and supervision for the 48 hours between 4pm Friday and 4pm Sunday every weekend.

232. Section 100(2)(d) of the CLW Act expressly provides for compensation in relation to gratuitous assistance provided to the plaintiff by a person external to the plaintiff’s household. One example of this is in Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207 where the domestic assistance was provided by the plaintiff’s adult daughter who lived in a separate residence. However, the section is silent on whether domestic services to “the household” would extend to looking after the children of others who may not live in that house and might not be part of the household, depending on how loosely or strictly that term is applied.

233. I have assumed that the section does so extend, as there is no doubt that this was a form of unpaid work for family members. Another way to view it is that such childcare duties were a domestic responsibility shared by the adult household members, the burden of which was borne primarily by the plaintiff prior to her diagnosis. Although the plaintiff was performing a considerable service in childcare for family members outside the household, it was also a service to her husband and other adult family members that did live in the same household as the plaintiff.

234. In addition to her childcare duties, the Malcomess Report was prepared on the basis that the plaintiff fulfilled the following responsibilities before her first relapse:

(a) All of her family’s grocery, clothing and other household shopping, completed in daily trips to nearby shops.

(b) Household cleaning, including approximately four hours per week washing up and cleaning the kitchen after meals, and an additional four hours per week on general house cleaning, including vacuuming, mopping, ongoing tidying and maintenance of the bathroom.

(c) Laundry for herself, her husband and three children on a thrice-weekly basis.

(d) Quarterly “spring cleaning”.

(e) Daily bed making and changing of linen on all beds in the house once per week.

235. That led to figures in the Malcomess Report for past domestic requirements as follows: (a) A total of 1,590 hours for the period from 11 July 2019 to 5 September 2020 (60 weeks at 26.5 hours per week).

(b) A total of 630 hours for the period from 6 September 2020 to 7 May 2021 (adjusted to the date submissions were made) (35 weeks at 18 hours per week).

236. Valuing the plaintiff’s labour at $45 per hour, it was submitted that the value of the claim for past domestic assistance was $99,900. The future claim was then based on the same rate of $45 per hour and applying a 3% multiplier of 242.6, resulting in a figure for future domestic assistance of $120,087.

237. The defendant submitted that a buffer of $30,000 for past domestic assistance and a buffer of $20,000 for future domestic assistance was appropriate. The reason for that approach was that a more precise assessment was not considered possible. The defendant argued such a buffer was sufficient to account for the plaintiff’s need for care during period of chemotherapy and radiation, and also took into account the periods of the plaintiff’s remission and her pre-existing care needs.

238. The defendant had tendered a report of Dr Seamus Dalton dated 24 March 2021 (Dalton report) which also assessed the plaintiff’s physical condition and her capacity to carry out domestic duties. However, the assessment occurred during a single consultation which was not carried out at the plaintiff’s residence. While recognising the plaintiff’s weight loss, frailty, weakness and an inability to walk quickly or for a period over 40 minutes, Dr Dalton’s report found that none of these features provided a basis upon which to assess her as requiring future assistance with personal care. The report concluded that the treatment the plaintiff required would have been the same in any event and therefore her gratuitous care needs are not related to any alleged delay in diagnosis.

239. I was impressed by Mr Malcomess as a witness and by the thoroughness of his report. I would have accepted that it provided a foundation for awarding the plaintiff damages for domestic assistance approaching the figures contained within his report, as I accept it reflected what was reasonably expected in a large active household.

Costs

240. As the plaintiff has not succeeded, the usual order for costs following the event appears to be appropriate. However, if either party notifies the court by email to chambers or application that a different order is sought, I will hear the parties further, either on the papers or with a short oral hearing.

Conclusion and orders

241. Accordingly, the Court orders as follows:

(1) Judgment is entered for the defendant.

(2) The plaintiff is to pay the defendant’s costs.

(3) If any other costs orders are sought, the parties have liberty to apply within 14 days of the making of these orders. I certify that the preceding two hundred and forty-one [241] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.

Associate: Aislinn Grimley

Date: 24 May 2022