Austen v Tran [2023] ACTCA 44

There was an issue as to whether the defendant advised the plaintiff at the consultation on 17 October 2016 that she should return if the pain in her leg did not improve. The plaintiff was adamant that she was not advised to return. There was no record in the defendant’s clinical notes that he advised the plaintiff to return, but the defendant in his verified answers to interrogatories that were tendered at trial by counsel for the plaintiff stated that, based upon his usual practice, he would have given advice to the plaintiff that she should return in one week if her pain had not subsided. The defendant also stated in cross-examination that after the consultation he said to the plaintiff that she should come back if the pain was not better. The judge did not make a finding that the defendant gave advice to the plaintiff to return if the leg pain did not improve, instead finding at J[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 blood test results on 18 October 2016

On 18 October 2016, the Practice received the results of the plaintiff’s blood tests which indicated a normal range for iron levels. The plaintiff attended the Practice that day in person and recalled the receptionist telling her that her test results were “all good”. At the time the plaintiff received the results of the blood tests, no one at the Practice requested that she make a further appointment, and the defendant did not thereafter call the plaintiff or refer her for any further investigations.

The MRI scan was carried out on 1 September 2017, and the report identified a strong suspicion of metastatic disease, with multiple bony metastases involving the lumbopelvic skeleton and the pelvic lymph nodes.

On 4 September 2017, Dr Jazwari discussed the MRI results with the plaintiff and ordered further scans. The plaintiff subsequently underwent a CT scan of the neck, chest, abdomen, and pelvis, a mammogram of both breasts, and a whole-body bone scan. The results of those scans were recorded by Dr Jazwari on 7 September 2017 as being consistent with osteoblastic skeletal metastases.

On 11 September 2017, Dr Jazwari referred the plaintiff to Dr 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. Biopsies performed on 13 and 19 September 2017 confirmed the diagnosis of non-Hodgkin’s lymphoma.

In relation to the defendant’s examination of the plaintiff, the judge held that the defendant conducted at least a basic examination that was sufficient to inform the defendant that whatever was causing the plaintiff’s 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: J[117]-[119]. The judge held that although in isolation the examination 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 fall below the standard of care of a reasonable general practitioner.

In relation to diagnosis, the judge noted at J[120]-[121] that the expert evidence did not indicate 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, and held that a differential diagnosis which did not include non- Hodgkin’s lymphoma as a condition to investigate immediately at that point was reasonable.

The judge found at J[123] that there was plainly more that could have been done in addition to blood tests to investigate the pain in the plaintiff’s leg. The defendant did not order x-rays or make further referrals, and in that sense, the defendant did not fully investigate the symptoms and complaints of the plaintiff at the first consultation. Nonetheless, the expert evidence did not suggest that ordering blood tests was an inappropriate first step. The judge framed the issue as whether the defendant should have gone further based on what the reasonably skilled general practitioner would have done in the circumstances. The judge accepted that it was not unreasonable for the defendant to adopt a staggered approach to working out the cause of the plaintiff’s pain at the first consultation, and that in the absence of an indication of trauma, reasonable care did not require the defendant to order x-rays, and held that ordering an MRI scan of the lumbar spine would have been a “leap”: J[125]. We note that the defendant gave evidence that as a general practitioner he could not request an MRI scan of the lumbar spine that would attract a Medicare rebate. Her Honour also held that in the absence of x-rays the basis for a referral to a specialist did not then exist: J[126].

In relation to the plaintiff’s position after the blood test results had been received, and which showed no iron deficiency, the judge held that at that point the plaintiff was left without a diagnosis and without advice as to any course of action to take other than to take the medication which had been prescribed. The defendant’s evidence was that he relied on the plaintiff to be proactive and to ask for another consultation if her pain continued, although both experts noted that a reasonably skilled general practitioner would be expected to form an initial diagnosis and corresponding strategy or plan, including some form of follow-up action: J[129]-[131]. However, her Honour noted the burden for doctors to call individual patients when regard is had to the volume of patients passing through the Practice and requiring blood tests: J[130].

The judge found at J[132]-[136] that the defendant did not follow best practice because he did not fully investigate the plaintiff’s symptoms and complaints, and he did not ensure that the plaintiff understood the purpose of the blood tests or that the improvement or worsening of the pain could shed light on the possible causes. Her Honour identified steps that the defendant could have taken, being: (1) he could have booked the plaintiff in for a further appointment in two weeks, to be cancelled if the blood tests showed nothing and the pain had resolved; (2) he could have made it clear to the plaintiff at the first consultation that part of the treatment strategy relied upon her taking responsibility to return if the pain was still present, even if the blood tests were normal; and (3) if time was being used as part of a stepped approach to diagnosis, it would also have been prudent to record that such advice had been given for the benefit of any future provider of treatment at the Practice. Steps of this character were described in the expert evidence and by her Honour as a “safety net”. Her Honour held that these steps were not burdensome, in terms of cost or time, citing the Civil Law (Wrongs) Act, s 43(2)(c). Her Honour held that failure to take these steps left the plaintiff unaware of the significance of normal blood test results and the need to investigate further the pain when it did not subside. The judge stated that 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.

However, the judge found that the defendant did not breach his duty to take reasonable care having regard to the circumstances existing at the time. Her Honour referred at J[138] to the variety of causes of leg pain, and to Dr Marles’ evidence that it was appropriate for a general practitioner not to recall a patient if the complaint was of experiencing short-term leg pain, because the vast majority of musculoskeletal pain will get better on its own. In circumstances where it was uncontroversial between the experts that leg pain may resolve on its own, even pain that had occurred for a number of months, the judge concluded at J[139] that a 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”.

The judge held that it was reasonable to assume that the plaintiff would attend a medical practitioner again if pain persisted, and taking account of the plaintiff’s socio-economic factors her Honour was not convinced that the defendant, knowing of those factors, and acting with reasonable competence, ought to have been more proactive. The basis for the entitlement to make that assumption in this case was that the plaintiff had been moved to attend a general practitioner in the first place because of her significant or extreme leg pain, and it was reasonable to assume that she would do so again if the pain persisted. We set out below J[138]-[143] which contain her Honour’s central path of reasoning in relation to the question of breach, because it is important – 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. Findings as to causation

Although the judge held that no breach of duty was established, upon the hypothesis that breach had been established, her Honour considered whether the defendant’s conduct was a necessary condition of the harm alleged, namely the delay in diagnosis and subsequent worsening of the plaintiff’s non-Hodgkin’s lymphoma.

On the question of causation, one of the issues that arose on the expert evidence was when the plaintiff’s condition would have become detectable. Professor Richard Fox, a haematologist and oncologist who was called for the plaintiff, stated that the lymphoma, the development of which was causing the discomfort at the time of the first consultation, would have been diagnosable on a PET scan in October 2016, which would have been made in two or three weeks after the first consultation if reasonable precautions and processes were taken: J[168]-[174]. However, Dr Jonathan Page, an oncologist who was called for the defendant, concluded that the lymphoma-related symptoms would likely only have been present around the time of the second consultation with the defendant in July-August 2017, and further that there was no indication of the constant and increasing pain symptomatic of lymphoma at the time of the first consultation, and that the pain at this time would have been likely unrelated to the lymphoma.

There was also an issue on the expert evidence about the development of the plaintiff’s lymphoma. Professor Fox stated that the low-grade lymphoma, which had been progressing for about 12 months, transformed to high grade in July 2017, whereas Dr Page stated there was no low-grade lymphoma on the first PET scan in 2019, only high grade, indicating the lymphoma developed rapidly as high grade in only the few months between June to September 2017.

The judge found at J[182] that the opinions of both Professor Fox and Dr Page in relation to whether there was likely to be low-grade lymphoma at the time of the first consultation were both reasonable. After considering the evidence, in particular the circumstantial evidence, the judge found at J[190] that the plaintiff had low grade lymphoma from at least October 2016, and that it became high grade lymphoma from shortly before 2017. Primarily that was because there was no alternative to explain the leg pain which was present at the first consultation, and although the pain was experienced at different levels over the ensuing period, it never went away.

Proceeding on this basis, the judge held that the lymphoma could have been detected by a PET scan at the early stage of the first consultation, but held that it was unlikely that the plaintiff would have been referred for a PET scan at a point earlier than when the disease escalated in June and July 2017: J[191]-[195]. This conclusion was supported by findings that the pain relief that was prescribed had been effective, and that the plaintiff presented to the Practice twice between the first and second consultations with the defendant without raising the leg pain. As such, upon the hypothesis that there had been a breach by the defendant in relation to the first consultation, her Honour found that the evidence did not establish that the breach caused a delay in diagnosis at the time: J[198].

It must be said that having regard to the advantages that the judge enjoyed in seeing the witnesses give evidence, and the consequential restraints on appellate review, these contentions were ambitious. In the event, for reasons that follow, it is unnecessary to consider the contentions.

Further, we do not consider that the argument underlying the plaintiff’s first point on appeal was fairly raised at trial: see, Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 at [51] (Gleeson CJ, McHugh and Gummow JJ). The so-called admission of the defendant on which the plaintiff relied on appeal was founded on evidence given by the defendant in cross-examination. The claimed failure by the defendant to send the plaintiff to a hospital straight away was not pleaded as a particular of negligence, was not the subject of expert evidence, was not the subject of the plaintiff’s written submissions at trial which were presented after evidence had closed, and was not raised by counsel for the plaintiff in final address.

In relation to the second issue going to breach of duty, counsel for the plaintiff relied on the judge’s findings in relation to the steps that were available to the defendant as a safety net to which we referred at [32] above. It was submitted that the judge’s findings constituted a finding of a breach of duty by reference to the reasoning in Rogers v Whittaker (1992) 175 CLR 479 at 483 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ), and also by reference to the standard of care provided for by s 42 of the Civil Law (Wrongs) Act. It was submitted that upon making the findings that the defendant had failed to implement a strategy plan, the judge had erred in failing, on that basis, to find that the defendant had breached his duty to the plaintiff to exercise reasonable care. Upon the hearing of the appeal, counsel for the plaintiff submitted that in all the circumstances, which included the plaintiff’s history of pain, the fact that she was an Indigenous woman in her early 50s who had poor mental health and limited education, it was incumbent upon the defendant to ensure that there was some follow-up. Counsel submitted that in the context of normal blood test results, which had not excluded malignancy as one of the possible causes of pain, it was not adequate to rely upon someone of the plaintiff’s circumstances to return for a follow-up consultation.

It was further submitted that the judge had failed to provide reasons in relation to why the failure to implement a strategy plan did not amount to a failure to exercise reasonable care.

We do not accept the submissions advanced in relation to the second issue. That is for three reasons. The first is that the judge’s findings at J[132]-[136] in relation to the steps available to the defendant to manage the plaintiff were directed to best practice, and not to whether there was a material departure from the standard of reasonable care of a general practitioner in a busy practice in the circumstances that existed in this case. That was explicitly recognised by the judge at J[138] where her Honour framed the relevant question as being whether what the defendant did in the circumstances faced at the time was less than what would be expected of a reasonable general practitioner.

The second reason is that the judge’s findings took account of the plaintiff’s socio-economic circumstances, and placed some weight on the evidence given by the defendant, and particular weight on the expert evidence given by Dr Marles. In cross-examination by counsel for the plaintiff in relation to reasonable practices of a general practitioner, Dr Marles stated – Q: So in the facts of this particular case where there’s a record of 8 out of 10 for pain for eight days and Dr Tran orders blood tests and the very next day, the tests come back as negative, is your evidence that it wouldn’t be reasonable to ask the patient to come back again because you’ve excluded the diagnosis and you’re still looking for a diagnosis? A: No, I don’t think you would ask the patient to come back. I wouldn’t ask the patient to come back because I think what you’ve done is you’ve looked to see whether there were any pointers – any red flags or any pointers of systemic illness, anything that might suggest there was something bigger going on than a musculoskeletal pain. There was nothing to suggest that and so I don’t think you would ask the patient to necessarily come back. I think you would leave it up to the patient to see whether they thought they needed to come back because their pain wasn’t resolving or it was getting worse. (Emphasis added.)

It is true, as counsel for the plaintiff submitted, that this evidence was in response to a question that was premised on a presentation of experiencing 8/10 pain for a period of eight days. But in making her findings, the judge at J[139] took account of the fact that the pain had been experienced over a number of months in combination with the fact that it was uncontroversial that leg pain may get better on its own.

As for the defendant’s evidence, the judge referred at J[131] to the defendant’s evidence that he relied on the plaintiff to be proactive, and to ask for another consultation if her pain continued. The defendant gave this evidence in response to some questions by the judge at the conclusion of the re-examination. The defendant explained that if patients are not better they come back, then absent something sinister, it was not the defendant’s practice to call a patient who had presented with a symptom to ask whether the patient was better. In the case of the plaintiff’s condition, the defendant stated that he was not looking at anything sinister that might have been causing the plaintiff’s pain, because he was looking at the muscle itself. As we have mentioned, the judge held at J[132] that this did not accord with “best practice”, but her Honour correctly recognised that this was not the standard against which reasonable care was to be measured.

Associate Professor Clyne, who was called to give expert evidence on behalf of the plaintiff, gave different evidence, to which her Honour referred at J[102]. His evidence was that it was inappropriate practice to send a patient away undiagnosed after test results, and that a patient who had reported 8/10 pain needed to be seen.

What reasonable care required in the circumstances was a question for the judge: Rogers v Whitaker at 488-9 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ), approving the formulation in the dissenting speech of Lord Scarman in Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 at 876. In determining that question, the evidence of good medical practice was relevant. In this case, the judge was presented with differing medical opinions, and the evidence could be sifted and evaluated in different ways. Her Honour had the benefit of seeing and hearing the plaintiff, the defendant, Dr Marles, and Associate Professor Clyne give their evidence, and to form impressions about the weight to give to different aspects of that evidence. For our part, we have only the written record of the trial. While this is an appeal by way of re-hearing involving a “real review”, there is a burden on the appellant to demonstrate that the judge’s findings of fact were wrong. In determining whether there was error, account must be taken of the superior position of the trial judge in evaluating the oral evidence. In our view, it has not been demonstrated that the judge was wrong to decide the question of what reasonable care required by giving some significance to the oral evidence of Dr Marles given in cross-examination, and in resolving the issues in the way her Honour did. Acceptance of the plaintiff’s contention would result in an outcome similar to that which occurred in Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 at [54]-[60], where the trial judge had the benefit of hearing the expert witnesses give their evidence, and the intermediate appellate court was held to have erred in reversing the relevant findings made at trial. See also, Lee v Lee [2019] HCA 28; 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ).

The third reason is that we do not accept the submission that the judge’s reasons on this issue were inadequate. A judge has a duty to give adequate reasons for a decision, and a failure to do so can amount to appealable error. The applicable principles were referred to in DL v The Queen [2018] HCA 26; 266 CLR 1 at [32] (Kiefel CJ, Keane and Edelman JJ). The submission that the judge failed to provide reasons in relation to why the defendant’s failure to implement a strategy plan on 17 October 2016 was not developed, and we do not accept it. Her Honour’s finding that the defendant did not breach his duty to take reasonable care was based upon a distinction which her Honour drew between best practice, and what reasonable care required having regard to the circumstances that existed at the time. In relation to the latter, the judge placed some significance of the expert opinion of Dr Marles to which her Honour referred, and one is not left wondering about her Honour’s path of reasoning.

This brings us to whether, as the plaintiff claimed on appeal, the judge erred in failing to consider in her assessment of breach of duty those matters that she was required to consider by s 43(2) of the Civil Law (Wrongs) Act. At J[69], the judge set out s 43, which provides – 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.

Paragraph 43(2)(c) is to be read with s 44, which at J[76], her Honour also set out – 44 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.

Provisions such as s 43 of the Civil Law (Wrongs) Act were introduced in legislation by the States and Territories of Australia following the report of the panel chaired by the Hon Justice Ipp, Review of the Law of Negligence (Final Report, 30 September 2002). The types of considerations referred to in s 43 are familiar to common lawyers, because while the statutory provisions now prevail, s 43 recalls to a substantial degree the principles relating to breach of duty essayed in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8 (Mason J). The mischief that the Ipp Panel identified and sought to address was that it was thought that the decision in Shirt was widely perceived to have created a situation in which lower courts might be in danger of ignoring that the probability of a risk, however high or low it may be, was only one element in determining the factual question of what reasonable care required. The Ipp Panel referred this consideration at [7.14] of its final report – … a danger that Shirt may be used to justify a conclusion — on the basis that a foreseeable risk was not far-fetched or fanciful — that it was negligent not to take precautions to prevent the risk materialising, and to do this without giving due weight to the other elements of the negligence calculus.

See also the discussion by McHugh J in Tame v New South Wales [2002] HCA 35; 211 CLR 317 at [98]-[102].

The reference by Mason J in Shirt to a risk that was not far-fetched or fanciful was directed to the foreseeability of a risk for the purposes of determining one necessary element of the legal question whether a duty of care was owed. For that purpose, reasonable foreseeability within the scope of a duty of care is a generalised enquiry undertaken at a high level of abstraction. In Shirt, the existence of the duty of care had been conceded: see the summary of the submissions of the appellant in Shirt at 42.

If a duty of care is established, then the duty is always discharged by the exercise of reasonable care, which is a factual question: Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at [49]-[50] (Gummow J). At common law, what reasonable care requires directs attention to the type of factors identified by Mason J in Shirt, which include the magnitude of the risk. The inquiry is a prospective inquiry, and it is in error to reason backwards by asking what reasonable steps would have prevented the risk of injury materialising, and holding a person liable in negligence because those steps were not taken: see, Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [16] (Gleeson CJ); Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126], [128], [160] (Hayne J); Roads and Traffic Authority (NSW) v Dederer at [18] (Gummow J). The same observation applies to the inquiry required by s 43 of the Civil Law (Wrongs) Act and corresponding provisions: Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at [48] (French CJ, Gummow, Hayne, Crennan and Bell JJ).

The Ipp Panel proposed that the “formula laid down in Shirt” be modified by replacing the phrase “not far-fetched or fanciful” with a phrase indicating a risk that carries a higher probability of harm, favouring the phrase “not insignificant”. The result is s 43 of the Civil Law (Wrongs) Act and corresponding provisions which lay down a series of conditions and mandatory considerations for determining whether liability in negligence is established. They are of the first importance in identifying the proper starting point: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [11] (French CJ, Gummow, Hayne, Heydon and Crennan JJ). Although s 43 appears in Part 4.2 of the Act titled “Duty of care”, the conditions and mandatory considerations in s 43 are directed to the breach question: Adeels Palace at [13]; see also, Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; 273 CLR 454 at [97]-[98] (Gordon, Edelman and Gleeson JJ). In relation to the magnitude of the risk, s 43(1)(b) provides for a threshold that the risk must have been “not insignificant”. Subject to this threshold, the mandatory considerations in s 43(2) are similar to the type of things that would be relevant under the formulation in Shirt, and under the principles referred to by Gummow J in Roads and Traffic Authority (NSW) v Dederer at [18] with which there are clear parallels: see, Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233 at [27] (Burns and Loukas-Karlsson JJ, and Crowe AJ).

Counsel for the plaintiff submitted on the hearing of the appeal that it should be inferred that the judge did not turn her mind to the matters that she was required to take into account by s 43 of the Civil Law (Wrongs) Act. Counsel cited Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 at [129]-[130] (Hayne J), and in particular, the statement that, “because the judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result”. Counsel submitted that the judge’s omission to mention either of the considerations in s 43(2)(a) or (b) meant that consideration was not given to them.

Counsel for the plaintiff submitted that, looking at the risk of harm to the plaintiff prospectively at the time of the consultation, the risk was that a malignancy would be undetected and would progress, describing the materialisation of such a risk, if it eventuated, as catastrophic. Counsel relied on the evidence of Dr Marles that a less common cause of leg pain was bone neoplasia, and on a concession made by counsel for the defendant at trial during final address that the risk of lymphoma was foreseeable. Counsel submitted that the judge addressed s 43(2)(c), to which her Honour referred to at J[136], but had not addressed s 43(2)(a) or (b). It was submitted that had her Honour given proper consideration to the matters that she was required to address by s 43(2)(a) and (b), and having regard to her Honour's observations that the arrangement of a follow-up was not burdensome in any way, then the correct result in this case in circumstances where the potential harm was extremely serious, should have been a finding of breach of duty.

In support of these submissions counsel referred to findings that the judge made, and other passages in the reasons for judgment – (a) the finding at J[92] that that the defendant did not investigate the plaintiff’s symptoms and complaints as fully as what ought to have occurred (see [26] above); (b) the recording of Dr Marles’ expert evidence at J[107]-[108] in relation to appropriate investigations at first instance as being by reference to a condition that had been present for eight days, and that it was appropriate for a general practitioner not to recall a patient if the complaint is of short-term pain, as the vast majority of musculoskeletal pain will get better on its own; (c) the finding at J[113] that there was significant pain in the plaintiff’s left leg, that this had existed for more than one week, and that the defendant knew that there had been some pain for a number of months, but not the 8/10 level pain which was the immediate cause for the plaintiff attending the Practice on 17 October 2016; (d) the finding at J[123] that there was plainly more that could have been done in addition to blood tests to investigate the pain in the plaintiff’s leg, and that the defendant did not fully investigate the symptoms and complaints of the plaintiff at the first consultation; (e) the finding at J[128] that upon the plaintiff receiving the results of her blood tests she was left without a diagnosis and without advice as to any course of action to take other than the painkillers that had been prescribed; (f) the finding at J[132] that the defendant did not follow best practice because he did not fully investigate the plaintiff’s symptoms (see [32] above); and (g) the finding at J[32] that if the defendant did advise the plaintiff to return, it was only a throw-away line at the end of the consultation.

Counsel for the plaintiff submitted that, in circumstances where pain killers had been prescribed, reasonable care required the defendant to inform the plaintiff to return to the Practice upon the results of the blood tests being uneventful, and required that the defendant inform the plaintiff that the reason to return was that there could be a more sinister cause of the pain than what was being investigated and which needed to be ruled out. Counsel submitted that the Court should infer that if that advice had been given, then the plaintiff would have returned to the Practice, particularly in circumstances where she perceived that she was suffering 8/10 pain.

We are not persuaded that the judge failed to take account of the matters that she was required to consider by s 43 of the Civil Law (Wrongs) Act. For one thing, the judge prefaced her consideration of whether the defendant’s duty of care was breached by setting out the entirety of s 43 at J[69]. This is not a situation, as was the case in Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320; 91 NSWLR 752, where the trial judge, in finding that the appellant had been negligent, did not refer to the corresponding provisions in the New South Wales legislation other than the section concerning obvious risk, which is not relevant here.

As to the risk of harm, at trial the judge raised with counsel for the plaintiff during the course of opening that the pleading was very general, and of the need to address ss 42 and 43 of the Civil Law (Wrongs) Act and the risk of harm. There was no express articulation of the risk of harm in the plaintiff’s final written submissions to the judge. In closing addresses, the judge put to counsel for the defendant that the risk was cancer, or lymphoma, which counsel appeared to accept. The submissions of counsel for the plaintiff in closing address also proceeded on the basis that for the purposes of the analysis required by s 43, the risk of harm was cancer, and the risk that cancer would grow – My friend did concede foreseeability, as I understood his concession. So that simply takes you to the test in 43(2) and 43(2) is, and this is what we say, a reasonable person in the position of Dr Tran would have taken precautions against the risk of harm. Section 43(2) of the Civil Law (Wrongs) Act provides that, ‘In deciding whether a reasonable person would have taken precautions’ a court must consider, amongst other things, ‘the probability that the harm would happen if precautions were not taken’. Well, if there was no diagnosis - and I think Professor Fox has answered that question and Dr Page has answered that question. If it is not diagnosed, the cancer will grow and that is where we are. ‘The likely seriousness of the harm’. Well, one can’t get a case more serious than this one, your Honour. ‘The burden of taking precautions’. Your Honour, that is why I took you to the burden of ringing a patient, which Dr Tran says wouldn’t be difficult.

The above submissions of counsel for the plaintiff in final address at trial concerning s 43(2) were brief, and focussed on the seriousness of the harm, which had been conceded by the defendant as being foreseeable, and the burden of taking precautions. The submissions relating to the probability of harm that are set out above appear to relate to the probability of harm upon the hypothesis that there was no diagnosis of the lymphoma, which risked venturing into hindsight reasoning.

In accordance with the authorities, the judge recognised at J[71], which we set out at [24] above, that the identification of the risk of harm was central to applying s 43, and that only once the risk of harm is known can one assess a reasonable response to the risk, citing Roads and Traffic Authority (NSW) v Dederer at [59] (Gummow J). The risk identified by the judge at J[72]-[73] was the risk of lymphoma, and its progression if undetected. The judge’s identification of this risk of harm was in accordance with the way in which the case had been argued at trial.

The judge gave specific attention to s 43(2)(c), and to the burden of taking precautions to avoid the risk of harm, and whether a reasonably competent general practitioner in the defendant’s position would have taken the precautions that the plaintiff alleged should have been taken. At J[76], the judge stated that this was an issue on which the parties diverged.

The plaintiff’s complaint on appeal was that, while the judge addressed s 43(2)(c), her Honour did not address (a) or (b). We do not accept that submission. The issues raised by s 43(2)(a) and (b) were hardly in dispute. Commencing with s 43(2)(b), the likely seriousness of the harm that was subject to the risk of harm that her Honour identified was that a delay in diagnosis would leave lymphoma untreated and develop to a point that was terminal, which the judge identified at J[72] which we have set out at [24] above. Her Honour noted at J[73] that there was no dispute that this risk was foreseeable.

As to s 43(2)(a), the probability of harm was referred to by her Honour when addressing the expert evidence. At J[97], her Honour referred to Associate Professor Clyne’s evidence that non-Hodgkin’s lymphoma was a rare explanation for symptoms initially presenting as leg or back pain, and that he had seen about three cases in his 45 years of practice as a general practitioner. At J[104], her Honour referred to Dr Marles’ evidence that non-Hodgkin’s lymphoma had an incidence of 15 out of 100,000 women in Australia, constituting an uncommon presentation in clinical practice. The judge referred to this evidence again at J[120]-[121] in concluding that a differential diagnosis that did not include non-Hodgkin’s lymphoma was reasonable. It was upon this premise that the judge then reasoned that – (a) the vast majority of musculoskeletal pain will get better on its own (J[138]); (b) a 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 (J[139]); and (c) her Honour was unpersuaded that upon the first consultation, 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 if her pain had not resolved (J[143]).

Accordingly, her Honour did take account of both the likely seriousness of the harm and the probability of it occurring. Both matters were intrinsic to her Honour’s analysis of whether, in the circumstances, reasonable care required the defendant to do more than he did. The error the subject of the amendment to the notice of appeal is therefore not established. It follows that we do not accept the arguments advanced by the plaintiff that were contingent on establishing that the judge had not addressed s 43(2)(a) or (b) of the Civil Law (Wrongs) Act. We have rejected the plaintiff’s challenge to the judge’s central findings that, in the circumstances, the defendant did not act unreasonably by relying on the plaintiff re-presenting if her pain had not resolved. No error having been established, there is no occasion for this Court to make its own findings, assuming that it was in a position to do so.