Chappel v Hart

Chappel v Hart - [2016] NSWDC 53 - NSWDC 2015 case summary — Zoe

[2]

DUTY OF CARE

The plaintiff was 19 years old when she presented at Gundagai Hospital on 2 January 2004. Medical staff there were concerned that her symptoms indicated a possibility of appendicitis and transferred her to Wagga Wagga Base Hospital for investigation.
No document of referral to the radiologist was in evidence and there was no evidence that he was informed of the prior history of NHL. The report of the CT scan read: CLINICAL NOTES: abdo path. Tender …. Lipose incr. ?appendicitis/pancreatitis
On the basis of the report provided following the CT scan, the plaintiff was treated for pancreatitis and discharged from the Hospital on 8 January 2004. There was no suggestion that this diagnosis was incorrect or that there was any breach of duty of care in the treatment provided for that condition.
The medical experts called in the matter agreed that the CT scans depicted an abnormality in the left kidney. The experts disagreed on the issue of whether the radiologist ought to have drawn attention to the lesion with or without a recommendation for further investigation.
In order to deal with the issue of hindsight, the parties each arranged for "blind" reports to be prepared by radiologists.
Dr Jones reported on 20 July 2012, inter alia, that: No abnormality is seen in the upper abdominal organs. And No abnormality is detected elsewhere in the abdomen and pelvis.
His conclusions included the following: Appearances are consistent with a ruptured appendicitis with an appendiceal abscess.
Dr Ebrahimi, who was not cross examined, reported on 19 January 2015. In respect of the kidneys he reported: There is an approximately 2cm x 1cm multilocular cortical cyst at the interpolar region of the left kidney, which is slightly hyperdense to the remainder of the renal parenchyma on the non-contrast images and enhances slightly on the post-contrast images. This lesion meets the criteria for a Bosniak class 3 lesion and should be further characterised with ultrasound. …. Summary of Findings 4. Complex left renal cyst (Bosniac (sic) 3) Differential Diagnosis Complex left renal cyst Discussion The left renal cyst has complex features including a multilocular morphology and enhancement. This meets the criteria for a Bosniac (sic) class 3 lesion however further characterisation with ultrasound and multiphase renal CT is required for complete imaging evaluation with a view to specialist referral. An underlying malignant lesion is not excluded. Management Further evaluation of the pelvic, pancreatic and left renal findings with ultrasound is recommended.
Having been informed of the nature of the plaintiff's allegations of shortcomings in Dr Scott's report, Dr Jones advised on 21 September 2012 that his report was reasonable and in accordance with competent professional practice and that Dr Scott, in preparing the report, acted in a manner that was widely accepted in Australia at that time by peer professional opinion as competent professional practice.
He accepted that the 2004 CT scans depicted an abnormality in the left kidney. In his opinion this was a Bosniak category 1 or category 2 cyst. He said a Bosniak category 1 cyst required no further investigation or follow up according to the standards of practice that prevailed in 2004 and at the current date.
Dr Jones provided detailed reasons for his conclusion that the lesion was a Bosniak category 1 cyst or a Bosniak category 2 cyst.
He also provided analysis that supported his opinion that the presence of Bosniak category 1 cysts was a common finding whereas the likelihood of a finding of malignancy was so rare that it was highly improbable that the abnormality depicted on the 2004 scan was other than the simple, benign cyst so that: 9 A radiologist must therefore make a diagnosis of simple cortical renal cyst on the lesion demonstrated in the left kidney on Ms Freestone's 2004 scan; as a non-significant finding this does not require mention in a report particularly if there is far more significant pathology present.
Dr Jones concluded with the opinion that it was not necessary to report the incidental finding and there was no basis upon which a radiologist might suggest any diagnosis other than a simple cortical renal cyst. As such no follow up or biopsy was necessary or a matter of standard practice.
The plaintiff relied on the reports of Dr Lees, radiologist and consultant in nuclear medicine. In his report of 15 April 2013 he provided a detailed description of the appearance of the lesion on the 2004 scans that, he said, indicated that it was not ordinary kidney tissue. He considered the question of whether the lesion was a cyst but considered it unlikely because it was lobulated. He accepted that the presence of two cysts in close proximity could give a lobulated appearance. He said the lesion could have been analysed by measuring its Hounsfield density to provide some indication of whether it was a tumour or a cyst. Alternatively, it could have been investigated at a later stage through further CT scans or ultrasound.
In his opinion the abnormality should have been reported with a differential diagnosis of a solid mass suggesting a benign or malignant tumour or a cyst. Dr Lees said that failure to see the lesion was a departure from accepted practice as was the failure to recall the patient for further investigation. He noted that renal cell carcinomas and Wilm's tumours were serious and life-threatening malignancies.
Dr Jones and Dr Lees provided further reports in which each commented on the opinions of the other and in which they continued to disagree. In essence the disagreements related to: 1. The appearance of the lesion; 2. The prevalence of radiological findings of kidney cysts; 3. The circumstances, if any, in which a cyst should be reported.
The experts explained the separate roles of the radiographer, who actually performed the scans and of the radiologist, who then examined the films and provided a written report.
Dr Scott's written report recorded that the scans were performed at 18:49 on 2 January 2004 and that his report was printed at 10:21 on 5 January 2004. The hiatus between the two events was unexplained. Neither expert had access to Dr Scott or the clinicians who treated the plaintiff in January 2004 and they did not know what discussions, if any, took place between them. Dr Jones said that, if the radiologist was not instantly available in an acute situation, the duty clinician, at Wagga Wagga Base Hospital, probably the duty registrar, would interpret the scans as best as possible and, if seriously concerned, would call up the radiologist. I was entirely unassisted by evidence of what actually occurred.
Dr Scott was not called and I was therefore uninformed on the question of whether he observed the lesion in the left kidney and elected not to report it or whether he overlooked it entirely. I accepted the plaintiff's submission that the absence of hospital records, of evidence from Dr Scott or any treating other practitioner, without explanation, provided a basis for the inference that this evidence would not have assisted the defendant: Jones v Dunkel [1959] HCA 8; 101 CLR 298.

[3]

Appearance of the lesion

In the course of the concurrent evidence of the expert radiologists, Dr Jones and Dr Lees, the court was provided with the opportunity to view the scans produced in January 2004 with the benefit of a light box. My attention was drawn to images 9 and 10 that depicted the left kidney.
Dr Lees described those slices as depicting a non-enhancing mass that, in particular on image 9, had the appearance of lobulation. He said the appearance of this mass on a kidney was not normal and not functioning renal quality tissue.
Dr Jones did not accept that its appearance was abnormal. He agreed that it was not normal renal parenchyma but said the issue of abnormality involved a value judgment.
He explained his position by reference to four features: The things that I think are important about it are that when you compare this structure with the gall bladder, which is this structure here and here which you later referred, I think it's the same density. This is the spinal canal which is full of fluid and is of similar density, so my interpretation of that is that it's a fluid density structure. The next question is whether the wall is perceptible and the wall is visible around the outside here so a wall - a perceptible wall will be visible as a rim that was of higher density, ie, whiter, than the density of the structure, so there is no wall visible. The next thing is what is the inner face of the kidney like? Is it smooth or irregular? You can draw a line around it so to me that's a smooth interface. And the fourth thing is that there's no evidence of any solid nodulous or enhancing mass within it, so they're the four criteria that are assessed in terms of making an assessment for a cystic lesion and my interpretation of that is that it's a simple cyst. (Transcript 156.29)
Dr Lees disagreed with this method of measuring the density of the lesion. He described an alternative method of measuring the density by reference to "Hounsfield numbers", named for Sir Geoffrey Newbold Hounsfield who was awarded a Nobel Prize for his invention of the CAT scan. Under this method fluid densities were numbered; those applying to a cyst being approximately 0 - 20, to a tumour approximately 50 - 100. The measurements were obtained by transferring information obtained in the course of the CT scans to a computer and taking readings from that information. Those readings were normally taken by the radiographer. The technology to perform this investigation would have been available to the radiologist at Wagga Wagga Base Hospital in 2004.
The issue of whether Dr Scott would have encountered difficulty in seeing the lesion was not in dispute. Although Dr Jones did not refer to the lesion in his initial blind report, he confirmed that he did see it on the CT scans that he viewed for the purpose of his report. He and Dr Lees agreed that it would have been visible to the eye of a trained radiologist.
In the absence of evidence from Dr Scott, I therefore proceeded on the basis that he saw the lesion.

[4]

The prevalence of renal cysts

Dr Jones took the view that, this lesion being a simple cyst, it was very common and could be disregarded as a normal finding on a kidney. He disagreed with the proposition that it was unlikely that an attachment to a kidney in a 19 year old female would be a cyst.
Dr Jones attached papers to his report that he relied upon to establish that simple renal cysts occurred commonly. He quoted their incidence to age 18 at 0.22% increasing progressively with age to 40% in males and 28% in females by the age of 60. He concluded: Simple renal cysts therefore have a prevalence which rises with age reaching around 40% in the older age group. The Bosniak classification system is designed to differentiate between those cysts which are simple and benign and can be ignored, those cysts which require follow-up, and those cysts which are likely to be malignant and require further investigation and treatment. Clearly the incidence of cysts is so high, that follow-up or biopsy of benign cysts (Bosniak category 1 or 2) is simply not feasible.
Dr Lees disagreed that cysts were commonly found, except in patients over the age of 50 years. He said that cysts and solid masses were rare in young adults. He referred to a study undertaken at a childrens' hospital in Toronto, Canada of the scans of patients between the ages of 0 - 18 years where 16,102 images were studied with findings of 37 cysts in 35 patients. He maintained that the plaintiff, at the age of 19, was at the margin of this study.
Dr Lees' opinion was supported by the paper attached to Dr Jones' report that was titled: "Incidence and growth pattern of simple cysts of the kidney in patients with asymptomatic microscopic hematuria". The authors of that paper were practitioners in the Departments of Urology at the School of Medicine, Keio University and Tokyo Electric Power Hospital, Tokyo, Japan. The paper was produced following a study of 906 patients, 639 of whom were male and 267 female. Simple renal cysts were diagnosed in 4.3% of the patients aged 29 years or younger. This represented 3 cysts in the males and none in the females.

[6]

Accepted practice - should the lesion have been reported?

Dr Lees said the finding should have been reported because it was rare, untested, and came with a differential diagnosis of a cyst or tumour, one of which could be fatal. It was therefore important to report it, investigate and obtain a final diagnosis.
Dr Jones disagreed. He said he would not report the lesion in the circumstances of acute abdominal symptoms, even in a child. He said the relevant findings in a radiologist's report were those that related to the clinical presentation.
Dr Jones accepted that tumours were frequently detected incidentally but his concern was that many incidental findings were then investigated to the disadvantage of the patient, at times with fatal consequences. He said it was a matter for the radiologist to determine whether to report an incidental non-significant finding. It was not something that a radiologist was obliged to report.
Dr Lees countered by pointing out that measuring the Hounsfield density of the lesion required no further involvement on the part of the patient and no invasive treatment. Dr Lees and Dr Jones agreed that a non-invasive ultrasound would provide immediate information concerning the nature of the lesion. They agreed that ultrasound examination would have been available at Wagga Wagga Base Hospital in January 2004.
Dr Jones ultimately appeared to accept that the finding of a renal cyst was not common in a patient of the plaintiff's age. He said, however, that they were common in a radiologist's daily workload and, although the radiologist would know the age of the patient, a finding of this type was assessed in the same way regardless of age. Taken to an extreme example of a 6 year old, Dr Jones agreed that he would probably report the finding of a cyst but some radiologists would not.
He said that, because this happened, he regarded it as accepted practice. Dr Jones said radiologists were not infallible and, in a busy practice, the failure to report the lesion was not a departure from accepted standards. Dr Jones maintained that it was a matter for the radiologist to determine and that he or she was not obliged to report an incidental, non-significant finding.
In a somewhat contradictory answer to the question of whether he would report a cyst to allow for further investigation, Dr Jones said: My personal approach is that if I make a - if I carefully elicit the findings of a renal lesion and come to the conclusion that it's a cyst, I do not ever recommend follow up or any further investigation, so that is predicated on making a careful assessment in the first place and if I get that wrong well clearly that may have consequences, but the starting point is to elicit the features that I've described and if at the end of that process I come to the conclusion I am looking at a simple cyst, then I may or may not report it. I personally would report it but lots of people don't and if it's a situation of an acute abdomen where I've regarded it as an irrelevant finding, I may not report it. It depends on the circumstances. (Transcript 172.6)
Questioned further to clarify whether he personally reported lesions that he determined to be cysts, Dr Jones said that his general practice was to do so but that he would not have reported the lesion that appeared on the 2004 scans because the concern on that occasion was the cause of the acute abdomen and: Well, whether I do it or not is only part of the answer. What most radiologists - many radiologists would not, do not. (Transcript 172.37)
Dr Lees said the lesion was obvious, it suggested a differential diagnosis involving a cyst, that was rare, or a tumour that was dangerous. He maintained that, even if the radiologist thought it was a cyst, it should have been further investigated or reported to allow for further investigation.
Other experts provided evidence that supported Dr Lees' position. Associate Professor Millard said the failure to report the lesion was an oversight and that the lesion was clearly not a cyst.
Associate Professor Smee, a radiologist specialising in radiation oncology, reported on 21 September 2010 that he thought it would have been appropriate that the radiology report at least recommend further assessment, perhaps through ultrasound, to determine if the lesion was cystic or solid. In a subsequent report dated 5 August 2014 Associate Professor Smee maintained his opinion that the lesion should have been noticed and reported. In his opinion the lesion was not a simple cyst.
Professor Levi, oncologist, reported on 13 May 2011 that the lesion was clearly visible and that it would have been appropriate that the radiologist comment upon it.
Professor Fox, although not a surgeon or urologist, had 43 years of specialised experience in haematology and oncology and had been the Director of the Department of Medical Oncology and Clinical Haematology at Royal Melbourne Hospital for 21 years. He was not provided with copies of the 2004 or 2008 scans. Notwithstanding, he offered the opinion in the course of evidence given before his Honour Judge Delaney on 2 June 2015 that it was usually, but not always, possible to the trained eye to determine the difference between a cyst and a tumour. He said that opinions given with hindsight were of no benefit in determining whether the lesion should have been seen in 2004. He agreed "absolutely" (Transcript 48.1) that if a trained eye detected what was reasonably expected to be a tumour, further investigation was essential.
Dr Jones and Dr Lees agreed that they would certainly approach the finding of the lesion differently if they were provided with the plaintiff's prior history of NHL, a disease that could affect the kidneys so that the lesion would become a relevant finding. Dr Jones highlighted the importance of referring doctors providing relevant clinical information. He said it was not possible for radiologists to report every single finding on every single examination. The failure to inform the radiologist of this information was not pleaded as a particular of negligence by the plaintiff.

[10]

Section 5O

Section 5O provides: 5O Standard of care for professionals (1) A person practising a profession ("a professional") does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.
The defendant submitted that the opinion of Dr Jones was sufficient to provide evidence that Dr Scott provided professional service in a manner that in 2004 was widely accepted by peer professional opinion as competent professional practice. Further, it was argued that the authority of Dobler v Halvorsen & Ors [2007] NSWCA 335 established that I could reject Dr Jones' opinion on this aspect of the claim only if I considered it to be irrational. I did not accept that Dobler established that proposition.
I acknowledge that, in Dobler, Justice Gyles consistently referred to "(rational) peer professional opinion". In using that term, he was referring to the competing opinions of the experts. He considered whether, when presented with competing rational opinions, it was open to a trial judge, in deciding the issues raised by s 5O, to prefer the opinion of one of the experts over that of another. He provided no clear answer to this question because he noted that the defendant's expert in that case did not establish that the professional service in question was widely accepted by rational peer professional opinion.
I reached the same conclusion in this case. My reasons for this conclusion are: 1. The medical opinion in this case did not support Dr Jones. Dr Lees and Associate Professor Smee were radiologists who said they would report the depiction of the lesion. Although he initially failed to report the presence of the lesion in his blind report, Dr Jones said that he personally would have reported the lesion, although many radiologists would not. Dr Ebrahimi, uninformed of the circumstances, reported it. Associate Professor Millard and Dr Richards, urologists, and Professor Levi an oncologist, who particularly relied on radiology reports, expected that a competent radiologist would report the lesion. 2. The basis for Dr Jones' opinion was undermined in two respects: 1. Although he appeared to resile from this position, Dr Jones' opinion was initially based upon his understanding that simple renal cysts were so common that they could be safely disregarded. The material to which I have referred in these reasons made it clear that he was wrong in this respect. It was not suggested that it would be unreasonable to require that a radiologist in Dr Scott's position be aware of the statistics concerning the virtual absence of simple renal cysts in patients of the plaintiff's age and gender. 2. The suggestion that the failure to report an incidental finding could be excused in circumstances where the radiologist was not fully informed of the plaintiff's medical history. This could not assist the defendant in the light of studies that established that at the plaintiff's age, simple renal cysts were virtually non-existent.
I therefore did not accept that the defendant could take advantage of s 5O of the Act to avoid liability to the plaintiff.

[11]

CAUSATION

The scans and ultrasound performed in 2008 indicated the presence of a lesion affecting the plaintiff's left kidney. Further investigation was necessary to determine the nature of the lesion. Treatment depended upon a number of factors, including, in particular, that of whether the lesion represented a recurrence of the NHL.
As was the practice, the plaintiff's condition was discussed by a multi-disciplinary term at the Prince of Wales Hospital. A team typically included experts in urology, radiology, neuro-radiology, radiography and medical oncology. It was decided to perform a core biopsy. Associate Professor Millard listed the reasons for this decision as follows: 1. The plaintiff was a young patient at the age of 24; 2. Renal cell carcinoma was rare at her age but it was a matter of concern because it had a poor prognosis; 3. The prior medical history of NHL; 4. A renal lesion was atypical for the recurrence of NHL; and 5. It was necessary to confirm the malignant nature of the lesion before the kidney was removed in toto.
A biopsy was attempted at Prince of Wales Hospital on 4 August 2008. This was an excruciatingly painful experience for the plaintiff and a failure in two respects. The needle used for the purpose of the biopsy punctured the plaintiff's lung and the sample obtained proved to be inadequate for the purpose of diagnosis.
A further successful biopsy was performed on 20 August 2008. The sample obtained through the second biopsy was tested and resulted in the diagnosis of a Wilm's tumour.
There was no issue between the experts concerning the characteristics of Wilm's tumours, namely: 1. They occurred very rarely in adults. Associate Professor Millard said he did not consider this diagnosis prior to biopsy, its incidence normally peaking at the age of 44 months. 2. Properly treated, the survival rate for this type of cancer in children was 98% - 99%. Associate Professor Levi said the likelihood of a cure for the plaintiff after treatment was 93% - 94%, although other experts pointed out that the rarity of Wilm's tumours in adults was such that there were few statistics available to confirm this prognosis. 3. Pathological examination was essential to diagnosis of Wilm's tumours. 4. Treatment depended upon the category or stage allocated to the disease.
Associate Professor Millard appended to his report of 15 December 2010 staging and treatment details as follows: APPENDIX 1 STAGING OF NEPHROBLASTOMA (WILM'S TUMOUR) Wilm's tumour, or Nephroblastoma, is most commonly a condition of children. 500 cases per year are diagnosed in the United States of America. The average at diagnosis is three years of age. It is uncommon after age six and is very rare in adults. The National Wilm's Tumour Study Group in the USA defines the following stages:- Stage I Tumour confined within one kidney. Completely removed by nephrectomy. Incidence is 40-45%. Stage II Tumour spread beyond kidney either into peri-renal fat, blood vessels or lymph nodes but completely removed by surgery. Incidence is 20-25%. Stage III Tumour incompletely removed by surgery (positive margin, tumour spillage, previous biopsy). Incidence is 20-25%. Stage IV Tumour has spread away from kidney (metastases) to liver, lung, bone or lymph nodes. Incidence is 10%. Stage V Tumours in both kidneys at time of diagnosis. Incidence is 5%. APPENDIX 2 TREATMENT BY STAGE Stage I Radical nephrectomy plus chemotherapy 2 Stage II Radical nephrectomy plus chemotherapy 2 for 18 months Stage III Radical nephrectomy plus radiotherapy plus chemotherapy 3 for 6 months Stage IV Radical nephrectomy plus radiotherapy plus chemotherapy 3 for 6 months Stage V Radical nephrectomy plus radiotherapy plus chemotherapy 3 Chemotherapy 2 = chemotherapy with 2 agents = Actinomycin and Vincristine Chemotherapy 3 = chemotherapy with 3 agents = Actinomycin and Vincristine and Doxorubicin
The plaintiff was treated for a Wilm's tumour in stage III commencing with nephrectomy on 29 September 2008 and followed with radiotherapy and chemotherapy extending over six months.
The claim raised the following issues of causation: 1. Whether the treatment would have differed if her condition had been diagnosed in 2004; 2. The extent to which the delay in diagnosis caused or contributed to any physical injuries from which the plaintiff suffered; and 3. The extent to which the delay in diagnosis caused or contributed to any psychiatric injury from which the plaintiff suffered.

[12]

The treatment - the stage III category

This issue concerned the circumstances in which the plaintiff was treated in accordance with the protocol for a Wilm's tumour in stage III and whether the less aggressive treatment provided for in stages I and II might have been available to her in 2004. The protocol for the stage III treatment was designed to guard against the spread of malignancy as a result of "spillage" or contamination caused in the course of investigative procedures or surgery.
Pathology post nephrectomy reported some breaching of the renal capsule and penetration into the perinephric fat. This suggested that in 2008, but for the core biopsy, the appropriate categorisation would have been Wilm's tumour stage II.
The experts agreed that as a result of the core biopsy prior to nephrectomy the plaintiff's disease was to be treated as a Wilm's tumour within stage III either because of the failed core biopsy or because of any core biopsy it was so deemed by the protocol established by the National Wilm's Tumour Study (USA).
Associate Professor Smee and Professor Fox, the primary experts on this issue, disagreed in two respects. The first was whether a core biopsy, undertaken prior to nephrectomy, automatically resulted in the stage III categorisation as contended by Professor Fox or whether, as contended by Associate Professor Smee it was the result of spillage from the first, failed biopsy.
The second area of disagreement centred on the issue of whether a core biopsy would necessarily have been undertaken in 2004.
Associate Professor Smee said that, in the absence of the spill of malignancy as a result of a biopsy, treatment would have proceeded in accordance with the protocol for stage I. He acknowledged that there was a risk of spillage, even with a lesion of the size depicted in 2004, but said that the risk of spill in the much smaller lesion was lower with greater prospects of cure. He provided reasons for this opinion in his report of 23 July 2013 in which he listed the following as pre-conditions to a confirmation of a Wilm's tumour stage I: 1. The radiologist who undertook the biopsy appreciated that the risk of spillage was reduced by using the retro-peritoneal approach rather than the trans-peritoneal approach; 2. There was no evidence of rupture resulting from the biopsy; 3. A diagnosis of Wilm's tumour was made; 4. There was no evidence of spillage intra-operatively; 5. The malignancy did not extend through the renal capsule; and 6. There was no evidence of para-aortic spread.
In the course of his evidence to his Honour Judge Delaney on 28 May 2015, Associate Professor Smee added the following further considerations: 1. When dealing with a mass in the kidney the risk of contamination existed regardless of the type of cancer involved and the better approach was therefore to proceed to nephrectomy; 2. The risks of biopsy included spillage, blood loss, urinary fistula and, as in this case, invasion of the pleural wall and pneumothorax; 3. Biopsy did not necessarily result in spillage. The National Wilm's Tumour Study Guide automatically resulted in the stage III category following percutaneous biopsy; and 4. In 2008 it was reasonable to perform a biopsy because there was radiological evidence of extracapsular spread.
In a further report of 8 September 2014, Associate Professor Smee maintained that a biopsy prior to nephrectomy would not necessarily have been carried out in 2004. He said this was a matter for the multi-disciplinary team, the members of which would have taken into account the consequences of stage III treatment to a person as young as the plaintiff.
Associate Professor Smee said he thought it was unlikely that the multi-disciplinary team would have recommended biopsy in 2004 notwithstanding the prior history of NHL and the need to exclude the recurrence of that disease. He accepted that nephrectomy in a 19 year old patient was a drastic step. He explained that the surgeon would take steps to assess the lesion before removing the kidney. One such step would be to refer a small portion to pathology for assessment and assurance before proceeding to nephrectomy.
Dr Fox thought it was irrational to suggest the plan of management would have been different in 2004. He said a core biopsy would have been undertaken in 2004 for the same reasons that were the basis for the decision for this procedure in 2008 so that the plaintiff would have been treated for a Wilm's tumour stage III in any event.
He disagreed that the options to biopsy referred to by Associate Professor Smee would have been pursued because, he said, the concern would have been the recurrence of NHL and the need to exclude this as a diagnosis. He thought there would have been a high level of suspicion in 2004 that the NHL had recurred.
Dr Fox disagreed that the absence of evidence of spillage from a biopsy would preclude the stage III categorisation because it was contrary to the staging provided for in the internationally accepted National Wilm's Tumour Study (USA).
He agreed that, if radiological investigation indicated that the Wilm's tumour came within stages I or II, the treatment provided for depended upon there having been no pre-nephrectomy biopsy. He agreed that biopsy was not advocated and would not be undertaken in those circumstances unless it was absolutely imperative. He agreed with medical opinion to the effect that, if NHL remained in remission for 10 years, it was effectively cured but said that nothing was ever 100%. He argued that Professor Marshall, who treated the plaintiff for NHL in 1993, indicated that it was still a stage I Wilm's tumour in 2008. This indicated to Professor Fox that it was because of the background of NHL that Professor Marshall and the multi-disciplinary team decided to carry out the core biopsy.
He agreed that, had he treated the plaintiff in 2004, but for the history of NHL, he would have proceeded to nephrectomy and that this would have been the appropriate form of treatment for renal cell carcinoma or Wilm's tumour.
Professor Marshall was the paediatric haematologist/oncologist at Westmead Hospital who treated the plaintiff as a child for NHL. With respect to Professor Fox, I did not find in the documentary material provided by Professor Marshall any reference to any contribution by him to the decision to proceed with core biopsy. Professor Marshall wrote to the plaintiff's general practitioner on 28 July 2008 reporting on a consultation with the plaintiff and her mother in which he advised them that there would need to be a plan of management of the renal mass "that will almost certainly include open renal biopsy". This was the type of biopsy to which Associate Professor Smee referred.
On 3 September 2008, Professor Marshall wrote to Dr Richards, the surgeon who performed the subsequent nephrectomy, stating that "because of the needle biopsy we would consider her a stage III". On 9 December 2008 he wrote to Dr Mok, medical oncologist, noting the two needle or core biopsies and stating: "This biopsy strategy converted her automatically from a stage II to a stage III."
Professor Levi in a report dated 13 March 2011 agreed with Associate Professor Smee that the plaintiff was stage III because of the likely spillage from the failed biopsy. He also stated that a biopsy would have been performed in 2004. He did not offer an opinion on whether the strategy for core biopsy would have been pursued in 2004.
In providing the reasons of the Court of Appeal in Waller v James [2015] NSWCA 232, Beazley P, commencing at [167], dealt at length with the legal principles relating to causation. Her Honour quoted from a number of authorities in pointing out that the law required that a plaintiff must prove that his or her injuries were caused or materially contributed to by the defendant's negligence. This obligation is expressly stated in s 5E of the Civil Liability Act 2002.
In particular, in relation to claims of medical negligence, Beazley P noted that Justice McHugh in Chappel v Hart [1998] HCA 55; 195 CLR 232 said at [28]: In principle, therefore, if the act or omission of the defendant has done no more than expose the plaintiff to a class of risk to which the plaintiff would have been exposed irrespective of the defendant's act or omission, the law of torts should not require the defendant to pay damages. Similarly, if the defendant has done no more than expose the plaintiff to a risk for which the defendant has not undertaken responsibility and to which the plaintiff was always exposed, the law of contract should not require the defendant to pay damages for injury arising from that risk even if it follows upon a breach of contract. No principle of the law of contract or tort or of risk allocation requires the defendant to be liable for those risks of an activity or course of conduct that cannot be avoided or reduced by the exercise of reasonable care unless statute, contract or a duty otherwise imposed by law has made the defendant responsible for those risks.
The issue in this case centred upon the extent to which the treatment provided in 2004 would have differed from that provided in 2008, a matter of some complexity from a medical, not a legal, point of view.
I took account of Professor Marshall's apparent expectation that an open biopsy would be performed and I noted Associate Professor Smee's opinions concerning the options that were available to avoid spillage and stage III treatment. In this case, however, there were particular features, present both in 2004 and 2008, that influenced the decision to proceed with the core biopsy. They were the history of NHL and the unexpected nature of the diagnosis of Wilm's tumour.
The circumstances therefore differed from those in Chappel v Hart where it was accepted that the risk that eventuated occurred very rarely and was unlikely to occur if surgery was performed on another occasion. In this case the question was whether, when options were available one of which involved the aggressive treatment required for stage III and the other did not, different clinicians would have taken a different approach.
It must be acknowledged, as pointed out by Professor Fox, that Associate Professor Smee's opinion was expressed after it was known that the lesion was a Wilm's tumour and that it might therefore be affected by hindsight. It might also be said that the decision to proceed with core biopsy was influenced by the prospect that the lesion represented a recurrence of the NHL, Associate Professor Millard having conceded that at no stage did it occur to him that a Wilm's tumour was involved.
Although senior medical minds differed on the approach to be taken, I did not accept that this difference established, as required by s 5E, that the plaintiff had discharged the onus of proving that in 2004 the approach favoured by Associate Professor Smee and Professor Marshall would, on the balance of probabilities, have been adopted.
Associate Professor Smee and Professor Levi were of the opinion that, even with a core biopsy, stage III might have been avoided but for the misadventure at the time of the first biopsy or that the risk of spillage would have been reduced in 2004 because the lesion was smaller.
I did not accept that this was a proper interpretation of the protocol established by the extract from the National Wilm's Tumour Study (USA) that was in evidence. Further, there was no guarantee that spillage or contamination would not occur at the time of open biopsy or at the time of the nephrectomy itself.
I therefore found that the damage suffered by the plaintiff as a result of treatment in accordance with the stage III protocol was not causally connected to the defendant's negligence.

[15]

The stage III treatment

I have already decided that the consequences of the stage III treatment were not causally related to the defendant's negligence. It was necessary, however, to provide some detail concerning the treatment in order to explain subsequent findings and my assessment of damages.
Dr Richards performed the nephrectomy on 29 September 2008. The plaintiff remained in the Prince of Wales Hospital for one week during which she was very unwell as a result of an unfavourable reaction to morphine. Chemotherapy was commenced while she remained in the Hospital and radiotherapy shortly afterwards. The course of radiotherapy continued daily for two weeks. Chemotherapy continued for six months.
There followed admissions to hospital to deal with her reaction to the chemotherapy drugs that were administered. On one occasion, she became unwell during a visit to her mother at Gundagai and she was admitted to Wagga Wagga Base Hospital from where she was transferred to the Prince of Wales Hospital.
The plaintiff described significant side effects and complications so that at times she was confined to a wheelchair, suffered from fevers or required blood transfusions. She claimed a significant loss of weight from her pre-diagnosis weight of 55 kgs to 36 kgs. The defendant challenged the extent of the claimed weight loss. I noted that Professor Marshall recorded the plaintiff's weight when she consulted him in August 2008, after the initial failed biopsy, at 51 kgs. The only other record of her weight that I noted amongst the materials provided was contained in a report of Associate Professor Smee that stated her weight at the time of commencement of radiotherapy to be 46.2 kg and at completion 45.5 kg. The plaintiff agreed that by December 2008 her weight was 46 kgs but she maintained in the interim period her weight decreased to the point where consideration was given to intravenous feeding.
Mr Szabo confirmed that the plaintiff lost a considerable amount of weight. He thought her weight fell to below 40 kgs but he could not recall the precise weight to which she dropped. Mrs Darcy also thought her weight dropped to about 36 kgs. She remembered discussions with medical staff to the effect that if her weight decreased below 36 kgs it would be necessary to tube feed her.
The plaintiff was questioned about the relationship between the many side effects that she experienced and one of the chemotherapy drugs, Vincristine, that was administered. In the absence of evidence concerning the effects of the drugs administered to the plaintiff, I did not pursue this aspect of the matter further.
The plaintiff also acknowledged that lethargy and fatigue were known symptoms of long term cancer survivors. She claimed that she had not been affected by these symptoms after the treatment provided for NHL.
Mrs Darcy said that during the period of her treatment the plaintiff was very distressed, appeared to be in much pain and did not eat because food tasted strange. She said the plaintiff was depressed. Mrs Darcy said she asked Professor Marshall in December 2008 if chemotherapy should be stopped. She raised this question because the plaintiff became so weak that she thought she might die. She confirmed that he advised that treatment should continue and that if it did not do so the disease could return with fatal consequences. He assured them that if the plaintiff persevered with the treatment things would improve.
The plaintiff said Dr Mok raised the question of whether treatment should continue because she was not tolerating it well. The plaintiff said she was sicker than any of the other patients who were receiving treatment and she and her mother asked why this was so. It was then that they spoke to Professor Marshall about Dr Mok's suggestion that treatment should be stopped.
Four months prior to the plaintiff's diagnosis she formed a relationship with Mr Rhys Szabo. Although the relationship was in its early stages, Mr Szabo provided a considerable degree of support to the plaintiff during the period of her treatment. The plaintiff's mother also provided her with support.
The relationship with Mr Szabo came to an end shortly prior to the hearing. They agreed that the plaintiff's illness and his need to continue to provide care placed too great a strain on the relationship.
Another matter that affected the stability of their relationship concerned the advice given to the plaintiff that chemotherapy and radiotherapy could affect her prospects of having children. There was a debate that followed about precautionary measures to preserve her fertility that could be, but were not, undertaken.

[18]

Psychiatric injury

The plaintiff complained of continuing symptoms of depression, anxiety resulting in panic attacks, mistrust of the medical profession and ongoing concerns about her health and the consequences of the delay on her prospects of a cure.
In mid-2010 the plaintiff enrolled in a course at the University of New South Wales leading to a Bachelor of Science degree of psychology. Her ambition was to practise as a psychologist providing music therapy to cancer sufferers. This was a three-year course that she had not, at the time of hearing, completed. She said she had been allowed extensions of time because of her ill health, the need to attend medical appointments and incapacity resulting from depression and anxiety.
Mr Szabo said that up to the point the relationship ended, the plaintiff's mood had not stabilised. She was defensive, sad and lacked the self confidence she previously possessed. She was constantly concerned with her health. She consulted many medical professionals but she continued to experience mistrust and difficulty accepting medical advice.
He said the plaintiff's studies had been difficult because of her continued fatigue and problems with concentration, impaired short term memory and comprehension. He claimed to have helped the plaintiff but she had difficulty keeping up even with a reduced workload.
Mrs Darcy said the plaintiff continued to suffer from depression at times. She continued to sing, practice yoga, go to the gym and eat healthily. She thought the plaintiff had improved with the assistance of psychological treatment but she continued to suffer from panic attacks. Anti-depressant medication affected the plaintiff's capacity to function to the point where Mrs Darcy suggested that she stop taking them.
Dr Dalton accepted that the plaintiff was sincere and that she genuinely suffered from the symptoms of fatigue, impaired concentration, impaired working memory, loss of confidence, anxiety, stress and depression. He concluded that the plaintiff had significant psychological problems.
He accepted that a constellation of symptoms of this nature could impinge on a patient's capacity to function in ordinary life, that entrenched psychological problems could be difficult to treat and that they impaired capacity to attend to daily personal needs. He agreed that he had seen no material that indicated that the plaintiff's complaint of fatigue had been reversed by undertaking exercise as recommended by him.
Dr Pickering and Dr Wilcox, psychiatrists, examined the plaintiff and recorded the symptoms of poor concentration and motivation, anhedonia, insomnia, exhaustion, withdrawal and social isolation. They agreed that the plaintiff suffered from psychiatric injury and on other aspects concerning the plaintiff's psychiatric illness.
Dr Pickering diagnosed a Major Depressive Disorder that was severe and was the result of the extreme effects of chemotherapy, complications that arose during treatment, the failed biopsy and the delay in diagnosis.
Dr Wilcox diagnosed a Persistent Depressive Disorder and Chronic Adjustment Disorder with mixed depressed and anxious mood with continuing significant residual symptoms.
They agreed that the plaintiff's condition had improved at the time of the hearing. Dr Pickering preferred to describe the effect of the subsiding symptoms as partial remission of the Major Depressive Disorder. Dr Wilcox thought the plaintiff had recovered from the Major Depressive Disorder and described the plaintiff's current condition as an Adjustment Disorder. She accepted that she could, alternatively, describe the plaintiff's condition as an Anxiety Disorder. They agreed that their diagnoses effectively related to the same illness, expressed in different terms.
The defendant challenged the plaintiff's claim that her illness was the result of the delay in diagnosis. It claimed there was evidence that the plaintiff suffered from pre-existing psychological issues and that she had not complained to Dr Sharma, psychiatrist, and Ms Robinson, psychologist, whom the plaintiff consulted during the course of her treatment in 2009, of symptoms suffered as a result of learning of the missed diagnosis or of the development of mistrust of the medical profession.

[19]

Pre-existing psychological condition

The defendant's proposition that the plaintiff suffered from a pre-existing psychological condition was based on material contained in the reports of Dr Sharma and Ms Robinson, psychologist, that suggested the plaintiff suffered from pre-existing problems of low self-esteem, depression and anxiety.
The plaintiff's father contracted chronic myeloid leukaemia and died in 1993 when the plaintiff was 9 years old. Shortly after his death, the plaintiff was diagnosed with NHL affecting her right tonsil. Professor Marshall treated her at Westmead Childrens Hospital following which the plaintiff remained symptom free.
The plaintiff and her mother described a normal childhood in her home town of Gundagai with no substantial disruption as a result of the NHL. Mrs Darcy said the plaintiff was a happy child who performed well at school, where she particularly enjoyed art, music and sport. She said the plaintiff coped with the teasing she received when she returned to primary school after treatment. She excelled in many subjects at school but struggled with mathematics, possibly because she missed so much of it whilst under treatment. The plaintiff appeared to recover from NHL and returned to a normal active life during her high school years.
There was no evidence to indicate that the plaintiff complained to any medical advisers of symptoms of psychological distress or that she received treatment or counselling prior to 2008. The plaintiff denied that the matters raised by Dr Sharma and Ms Robinson were other than minor issues commonly faced in the course of adolescence and early adulthood. Mrs Darcy confirmed this evidence. She denied that the plaintiff demonstrated any long term psychological consequences of her early childhood adversities.
Dr Pickering accepted that the plaintiff's childhood experiences probably predisposed her to a range of psychological disorders. He said, however, that vulnerability was not implicated as a substantial cause of the psychiatric symptoms that followed the 2008 diagnosis.
Dr Wilcox agreed with Dr Pickering that the plaintiff was psychologically vulnerable prior to the 2008 diagnosis and that she had not prior to that time suffered from any ongoing psychological disorder.
I concluded therefore that there was no evidence of any pre-existing diagnosed or diagnosable psychiatric condition.

[20]

The absence of complaint

The plaintiff said she was very distressed at learning that the lesion was present in 2004. She described her reaction: I was so incredibly shocked and I was confused and I, I obviously just didn't have a lot of trust in what was going on, yeah. (Transcript 38.21) … I saw it myself with an untrained eye when he put it on the light box. So it was pretty traumatic knowing that it had been there for that length of time and I, and I know about cancer pretty well from personal experience and I know having something in, in you for that length of time it's not, not a good, not a good outcome. (Transcript 38.27)
Mr Szabo said the plaintiff telephoned him to tell him that a mass had been detected on her kidney. He said the plaintiff was very concerned but appeared to handle this information reasonably well. He was present at the consultation when it was suggested that the diagnosis had been missed in 2004. He said the plaintiff was very shocked and "it changed the whole situation, I guess" (Transcript 184.41). He described the plaintiff's reaction: Well, she suddenly was completely unsure of her general health because if something like that had been missed she was highly concerned about what was happening with her own body. She was subsequently finding it very difficult to trust any manner of medical opinion or advice. (Transcript 184.48)
Mrs Darcy was also present when Professor Millard placed the films of the 2004 CT scans on the light box. She said the plaintiff was shocked, upset and angry when she learned that the lesion had been missed.
Mr Szabo said that throughout her treatment the plaintiff referred frequently to the failed biopsy and she was particularly troubled by the fact that the Wilm's tumour had been present for so long.
Mr Szabo described a period, after treatment was completed, during which: She suffered major depression and severe anxiety and she had no confidence, she, she was just completely, in my opinion, just not the same person. She'd been broken down but she hadn't been rebuilt and once again I sort of took it on myself to look after her so I was 23 or 4 trying to deal with depression which is quite, is quite heavy and we were living together at the time so it was inescapable really. Our relationship was extremely co-dependent, which is very unhealthy and it got better, it got worse and it got better and it got worse and we moved out and we moved back in, I went overseas and I came back and, and it all lead up to about a month ago when I left. (Transcript 192.12)
Dr Sharma and Ms Robinson reported the plaintiff's symptoms but said little about their causes, except in general terms by reference to the predisposing factors and the diagnosis of Wilm's tumour. Only their reports were in evidence. I was not provided with their clinical notes nor were they called to provide confirmation that these matters were not raised with them.
The plaintiff said that she did not remember if she discussed her reaction to the delay in diagnosis when she initially received psychological treatment. She said that at this stage she was dealing with very substantial issues involving panic attacks and suicidal feelings that were the focus of her discussions with these treating practitioners.
The plaintiff remembered dealing with these issues in her consultations with Ms Li and Ms Clarke in 2012 and 2013. Each of these psychologists referred to the ongoing consequences to the plaintiff's mental health of her concerns arising out of the delayed diagnosis.
The plaintiff's evidence and that of Mr Szabo and Mrs Darcy confirmed that the plaintiff was affected psychologically when informed of the lesion that appeared on the 2004 scans and that this information caused her continuing symptoms throughout the period of treatment and thereafter. I was not persuaded therefore that the absence of reference to these concerns by Dr Sharma and Ms Robinson was a basis for rejection of her claim of psychiatric injury.

[21]

Medical opinion

Dr Pickering and Dr Wilcox agreed that the plaintiff's psychiatric disorder, however it might be described, was multi-factorial and that there were a number of factors affecting the plaintiff's mental health that could not be ignored as having some contribution to the psychiatric symptomatology that developed. They had difficulty in isolating one particular factor as the cause of the plaintiff's psychiatric condition.
Dr Pickering's definition of "material contribution" was the presence of a factor that could not be ignored or that had some degree of contribution to the ultimate outcome in terms of psychiatric symptomatology that developed. Dr Wilcox thought the term described a predominant factor.
Their opinions were offered from a medical or scientific perspective. The difference between standards of scientific proof and the lesser standard of proof on the balance of the balance of probabilities has received a degree of judicial attention: Dobler, State of NSW v Allen [2000] NSWCA 141 and Seltsam Pty Ltd v McGuinness [2000] NSWCA 29; (2000) 49 NSWLR 262. In Seltsam at [93] Spigelman CJ said: With respect to many diseases, medical science is able to give clear and direct evidence of a causal relationship between a particular act or omission and a specific injury or disease. There are, however, fields of inquiry where medical science is not able to give evidence of that character. There are cases in which medical science cannot identify the biological or pathological mechanisms by which disease develops. In some cases medical science cannot determine the existence of a causal relationship. Such a state of affairs is not necessarily determinative of the existence or non-existence of a causal relationship for purposes of attributing legal responsibility.
In this case the competing factors to which Dr Pickering and Dr Wilcox referred were: 1. The second diagnosis of cancer; 2. The aggressive nature of the stage III treatment; 3. The delayed diagnosis; 4. The failed biopsy; 5. Anxiety concerning future health; and 6. Uncertainty concerning the outcome of treatment.
There could be little doubt that a second diagnosis of cancer, a life threatening disease, would result in symptoms of trauma. The same could be said of the aggressive nature of the treatment that followed and the resulting debilitating physical effects, dependence and potential effects on fertility. These were among the symptoms that were detailed in the reports of Dr Sharma, psychiatrist, and Ms Robinson, psychologist.
Dr Wilcox said that it was likely that the plaintiff would have suffered anxiety as a result of the diagnosis of a second potentially life threatening illness. She noted that the plaintiff had been suicidal during treatment because of her ongoing illness and her dependency on her mother and Mr Szabo. The plaintiff was also affected by advice that her treatment might result in early menopause with consequences to her capacity to have children.
Dr Wilcox and Dr Pickering agreed that the plaintiff's declining physical health before and during her treatment might have affected her mood. They agreed that notwithstanding these considerations, they had no consequence to the ultimate psychological outcome.
Dr Dalton's opinion indicated that the physical consequences of the plaintiff's treatment declined in significance with the plaintiff's recovery to the point where there were none remaining.
On this basis, I concluded that this factor was no longer a significant contributing factor in the plaintiff's continuing psychiatric illness.
In regard to the delay in diagnosis, I noted Mr Szabo's evidence that the plaintiff appeared to deal reasonably with the outcome of investigations demonstrating a mass on her left kidney. It was the subsequent advice that the mass had been present for at least four years that appeared to him to cause a significant change in her psychological condition.
Dr Pickering nominated the delay in diagnosis as a cause of the Major Depressive Disorder. He added that the failed biopsy was another significant contributing factor. He said that the incident involving the failed biopsy and pneumothorax had resulted in her mistrust of medical procedures and the plaintiff believed the delay in diagnosis was responsible for the more aggressive treatment regime. He said he was certain that earlier detection would have led to reduced psychological trauma and would have reduced the prospect of developing a depressive disorder. He was unable to estimate the extent of the reduction.
Dr Wilcox reported on 5 May 2014 that the plaintiff told her that she was upset and angry when she was told that the cancer had been present for four years. She was also distressed by the prospect that the delay would render it difficult to overcome the cancer. She was concerned that, if the cancer had been aggressive in nature, the outcome might have been different. She was therefore anxious and mistrusting of the medical profession. Dr Wilcox said the plaintiff was fearful of over-interpreting symptoms affecting her ongoing health.
She noted that the plaintiff spoke frequently to Ms Clarke, psychologist, of her loss of trust in the medical profession. Dr Wilcox said that this loss of trust did affect the outcome in 2008 and the plaintiff would continue to experience anxiety concerning her health. She said it was highly likely that she would continue to experience episodes of depression.
Dr Pickering and Dr Wilcox also agreed that delay in diagnosis had two certain consequences: the mistrust of the medical profession with many implications; and fear of a less favourable outcome. Dr Pickering expressed the problem as follows: That the risk of her dying from it in fact is - she knows that it's greater because of the delayed diagnosis and therefore that's in itself likely to be a significant factor in the various psychosocial forces that pushed her in the direction of developing the depressive symptoms and panic attacks that she later developed. (Transcript 121.23)
I concluded that the evidence of the plaintiff and her witnesses and that of the psychiatrists was sufficient to establish that on the balance of probabilities the diagnosis of cancer for a second time and the treatment and complications that followed were among contributing causes to the development of the plaintiff's psychiatric illness and that they were probably major contributing causes to her condition at the time of her treatment by Dr Sharma and Ms Robinson. I did not accept that these factors continued to contribute to the same degree to the plaintiff's current condition.
I accepted the opinions of Dr Pickering and Dr Wilcox that the delay in diagnosis and the failed biopsy were the significant and, therefore, the major contributing factors to her current condition and were the cause of her continuing mistrust of the medical profession and anxiety concerning her health and the prospects of a less favourable outcome.
I found therefore that the plaintiff's ongoing psychiatric illness was caused by the defendant's negligence.

[22]

Non economic loss

The plaintiff suggested that the amount to be awarded for non economic loss should be assessed at between 33% and 35% of a most extreme case. I considered that 35% would have been a reasonable assessment if all of the injuries complained of were compensable.
I did not take into account in my assessment the obviously disabling and stressful period of treatment of the Wilm's tumour. I accepted Dr Dalton's opinion that the treatment itself, while aggressive and traumatising, appeared to have resulted in little by way of permanent or continuing physical disability.
I did take into account the period of ill health in 2007 and 2008 prior to diagnosis, the effect on the plaintiff physically and psychiatrically of the failed biopsy, the disclosure of the delayed diagnosis, her mistrust of the medical profession and general concerns about her future health and the uncertainty surrounding the consequences of the delay on the ultimate outcome of the cancer from which the she suffered.
I accepted the opinions of Dr Pickering and Dr Wilcox that the plaintiff suffered psychiatric injury of considerable significance with some abatement at the time of the hearing and some prospect of further recovery, dependent on the plaintiff's motivation and further treatment.
Dr Pickering's prognosis was of residual chronic depression that was likely to persist unless medicated leaving the plaintiff at risk of exacerbations. The psychiatric injury, he said, caused a very great change in the plaintiff's ability to function normally.
Dr Pickering and Dr Wilcox agreed that the plaintiff was vulnerable to future relapse, depending upon her continuing to have treatment and motivation. This vulnerability made it more difficult to treat her condition, particularly the anxiety concerning a less favourable outcome.
I accepted that the plaintiff remained vulnerable to exacerbations and periods of disability resulting from the psychiatric injury.
These were features that have damaged and diminished the quality of the plaintiff's life to the point where I assessed her non economic loss at 30% of a most extreme case and awarded her the sum of $136,500.

[23]

Economic loss

The plaintiff secured one of a limited number of places in a degree course in graphic design at Charles Sturt University. She worked part-time while studying. She completed the three year course in three and one half years, attributing the delay to the distractions of her love of photography and of public performances involving singing, acting and modelling.
While at Charles Sturt University she cleaned motel rooms and sang at the Wagga Wagga RSL Club, earning $400 per performance. She was awarded a scholarship to study singing at the Conservatorium. She performed cabaret in Wagga Wagga, Sydney and Wollongong. During this period she continued her studies at the University.
After completing her degree she moved to Sydney and into share accommodation. She obtained modelling and promotional work on a freelance basis earning $30 - $50 per hour. The nature of the work she described as follows: Yeah, so that's everything from, possibly doing like a, a modelling, like a photo shoot or something like that for a product, or working at a car show and so you actually learn about the product and you're a salesperson for, for that - it's kind of really learning on your feet and being really quick and being very sociable and very out there, because you sort of need to be able to speak to anybody and everybody. (Transcript 24.16)
The plaintiff did not work during the period of her treatment. She claimed that she had suffered muscle wasting and was unable to tolerate physical activity. She agreed that she made no real attempt to return to the work she was performing prior to diagnosis.
The plaintiff's income since the completion of her treatment comprised Austudy support for her studies that recently ceased. Shortly prior to the hearing she obtained part time work in the David Jones department store where she had already suffered from one panic attack. In addition she earned some income through continuing musical performances and some promotional work but no modelling.
Mr Szabo was a musician who performed and taught music. The plaintiff agreed that she had joined Mr Szabo at some musical performances where she sang, both before and after her treatment. The performances since the completion of treatment, she said, were sporadic. She earned between $250 and $300 or more for 4 hour performances. She said she had not performed for several months and was unsure if she would continue to do so. She found it emotionally taxing and she had broken down at a few performances since treatment.
Mr Szabo confirmed that they had performed together since treatment was completed but estimated that they had not done so since early 2015. He said the plaintiff previously loved music and loved performing. She was now too anxious, making it difficult to perform. Her capacity to perform was also affected by her fatigue. He did not think she remained fit for this type of work. The plaintiff earned on average $250 for each performance and he thought that, although sporadic, they occurred at frequencies of about two per month.
The plaintiff said she tried to return to graphic design, some of which she did through referrals from Mr Szabo, but it was very occasional and she no longer enjoyed this work. Her wish was to help people instead. Mr Szabo confirmed that he used his contacts to provide her with graphic design work.
The plaintiff expected to complete her university studies in mid 2016. She would then be required to complete an honours year in order to secure registration as a clinical psychologist.
Dr Pickering said the plaintiff's capacity for sustained employment was demonstrably reduced because her capacity for study was reduced. He thought she would struggle with the postgraduate studies and internship that was necessary to commence a career as a psychologist. Dr Wilcox, with whom Dr Pickering agreed, noted that many who struggle perform well in work for which they have a passion.
I accepted that the income tax returns in evidence indicated that the plaintiff's income to the point of her diagnosis in July 2008 was not high. I also accepted that she was in the early stages of her career in fields where it was necessary to become established in order to secure a regular and respectable income. Mr Szabo provided evidence that, if working regularly, the plaintiff's income earning capacity from musical performances alone averaged $250 per performance. This suggested that, coupled with modelling, promotional work and graphic design, the plaintiff had significant potential to increase her income.
I considered, for the purposes of s 14 of the Act, that the plaintiff's most likely future income earning capacity would have been based upon her continuing to work in fields that involved her artistic abilities that is, in public performances in entertainment, modelling or promotion and in graphic design. These were areas where income would fluctuate but would increase as the plaintiff became established. I was left without doubt that the plaintiff's psychological condition would not allow her to continue in work of this nature and that it will hamper her current ambition to qualify and work as a psychologist.
I considered the amounts claimed for loss of income in the sum of $200 per week for the past to be reasonable. I deducted the sum of $8,600 to deal with the period of 43 weeks between 1 September 2008 and 20 June 2009 when the plaintiff would have been unable to work because of her treatment and her recovery from treatment. I allowed the sum of $70,400. I allowed superannuation on the past loss at 11% in the sum of $7,744.
I also considered the amount claimed, inclusive of superannuation, as a buffer for the future to be reasonable and I allowed it in the sum of $250,000.

[24]

Domestic Care

At the time of her diagnosis the plaintiff lived at Waverley in share accommodation. Mrs Darcy and Mr Szabo cared for her during her treatment.
Mrs Darcy initially slept close to her and provided personal and domestic care until, after one month, she was compelled to return to Gundagai to manage the family furniture business. Mr Szabo provided the majority of care from that point.
The plaintiff said she needed help throughout the period when she received chemotherapy with the demand reducing when the regime changed from weekly to fortnightly. She said she had little energy and was unable to drive. After her treatment was completed she remained without energy so that Mr Szabo cooked and did housework.
In addition, the plaintiff's house mates took over her share of the housework involved in cleaning the common areas of their accommodation in the bathroom, kitchen and lounge.
The defendant complained that no witness provided a breakdown of the hours involved in caring for the plaintiff but it was apparent that her needs from the time of the initial biopsy exceeded the 40 hour maximum provided for in s 15 of the Act and that those needs gradually diminished throughout the period of treatment and thereafter. To date, those needs have been met through the gratuitous services of Mrs Darcy, Mr Szabo and the plaintiff's house mates.
Dr Dalton, Dr Pickering and Ms Lucas made it clear that there was a continuing need for care and that the amount required depended upon the plaintiff's fluctuating psychological condition.
Ms Lucas provided an assessment of the plaintiff's past and future care needs that varied between the maximum of 40 hours per week immediately after the initial biopsy and in periods when treatment continued. The plaintiff preferred to average this assessment to claim one hour per day or seven hours per week for all past and future care.
At the time of the hearing the plaintiff appeared to be relatively independent of care. She no longer relied on the assistance of Mrs Darcy and Mr Szabo and she gave no evidence that in future she intended to use the services of commercial providers.
In those circumstances I dealt with the claim for care as follows: 1. For the period from the time of diagnosis to the hearing I allowed care as claimed of 7 hours per week, deducting 43 weeks in the amount of $7,976.50 for the period between 1 September 2009 to 30 June 2010 when the plaintiff's needs primarily related to care generated by treatment for which I decided the defendant was not liable. The sum allowed was $65,295.50. 2. For the future I considered the claim of 7 hours per week overstated the plaintiff's needs and I reduced it to 3.5 hours per week. In the absence of evidence that commercial providers would be retained, I calculated the result to be $92,750 and I further reduced this sum to allow for contingencies, allowing $50,000.

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Judgment (27 paragraphs)

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Cases Cited (7)