Chappel v Hart

Judgment

1. The plaintiff was admitted to the Wagga Wagga Base Hospital on 2 January 2004 with abdominal symptoms of some severity. In the course of her treatment CT scans were performed that demonstrated inflammation in the abdominal cavity. The plaintiff was treated for acute pancreatitis and discharged on 8 January 2004.
2. The CT scans also depicted an abnormality affecting the left kidney. For the purposes of these reasons, I have referred to the abnormality, prior to formal diagnosis, as a "lesion". The radiologist's report of the CT scan made no reference to the lesion.
3. In 2007 and 2008 the plaintiff experienced urinary tract symptoms with increasing frequency so that in June 2008 her general practitioner referred her for ultrasound and CT investigation. Those procedures demonstrated the presence of a larger lesion affecting the same region of the left kidney. A biopsy was performed and pathological examination established that the lesion was a nephroblastoma, described as a "Wilm's tumour". The plaintiff was treated with surgery to remove the affected kidney, chemotherapy and radiotherapy.
4. The plaintiff claimed that the defendant, through its employees, was negligent in failing to identify and report a renal mass following the CT scans performed on 2 January 2004 and in failing to note its significance in the treatment of the plaintiff whilst in its care in 2004.
5. She claimed that she suffered physical and psychiatric injuries as a consequence of the delayed diagnosis and the treatment provided following the diagnosis in 2008.
6. The defendant admitted the particulars of treatment provided to the plaintiff at Wagga Wagga Base Hospital in January 2004. It denied negligence and the plaintiff's claims of consequential injury.
7. In 1993 at the age of nine years the plaintiff was treated for a Non-Hodgkins lymphoma ("NHL") affecting her right tonsil. Her tonsil was removed and she received chemotherapy. By January 2004 there had been no recurrence of this disease so that, medically, she was regarded as having been cured. The plaintiff's history of NHL was recorded in the clinical notes covering the period of treatment at Wagga Wagga Base Hospital in January 2004 and there was no dispute that the medical staff who treated the plaintiff at that time were aware of it.
8. The plaintiff's claim raised issues of some complexity concerning: 1. The duty of care owed by the radiologist, Dr Scott, in interpreting the CT scans performed in 2004; 2. The extent, if any, to which any delay in diagnosis was causative of the plaintiff's claimed loss and damage; and 3. The assessment of the plaintiff's damages and loss.

DUTY OF CARE

1. 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.
2. 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
3. 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.
4. 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.
5. In order to deal with the issue of hindsight, the parties each arranged for "blind" reports to be prepared by radiologists.
6. 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.
7. His conclusions included the following: Appearances are consistent with a ruptured appendicitis with an appendiceal abscess.
8. 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.

Appearance of the lesion

1. 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.
2. 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.
3. 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.
4. 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)
5. 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 prevalence of renal cysts

1. 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.
2. 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.
3. 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.
4. 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.

Was it the same lesion in 2004 as that depicted in 2008?

1. Dr Jones questioned whether the lesion shown on the 2004 scans was the same as that depicted in 2008. In his opinion, a malignancy that had been present for four more years would have increased in size beyond that which was present in 2008.
2. He agreed that a cyst could not transform into a tumour. He disagreed that it was improbable that the cyst, if present in 2004, would have been no longer visible in 2008.
3. Dr Lees said it was most improbable that two pathologies would occur in an identical position, one of which was larger than the other.
4. Associate Professor Millard, urologist, on 15 December 2010, reported that the 2004 scans clearly demonstrated a lesion that corresponded with that shown on the 2008 scans. He said the earlier scans depicted a smaller lesion but it was "undoubtedly the same". He described Dr Lees' report of 3 September 2013 as a "triumph of science over conjecture" said it confirmed his "feelings" that the lesion shown on the 2004 scans was in the same place in the left kidney as that shown in 2008.
5. I therefore accepted that the lesion shown in the 2008 scans was the same as that depicted in the 2004 scans.

Accepted practice - should the lesion have been reported?

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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)

Findings

1. The evidence established that the lesion was visible on the 2004 scans, that the experts expected that Dr Scott saw it and that I could reasonably infer that he did see it.
2. The evidence also established that lesions were not, as contended by Dr Jones, commonly found in patients of the age and gender of the plaintiff in 2004. The scientific studies to which I was referred in fact established that they were virtually non-existent in females of the plaintiff's age.
3. There were relatively simple, non-invasive measures available at the time of the 2004 scans by which the nature of the lesion could have been further investigated within the defendant's radiology department.
4. Although the lesion would have been an incidental finding by a radiologist who knew nothing of the plaintiff's medical history, it would have been a very rare finding.
5. The majority of medical opinion supported Dr Lees' opinion that the lesion should have been reported. Dr Ebrahimi, unaffected by hindsight, did exactly that and Dr Jones ultimately agreed that he probably would have made reference to the lesion in his report.

Legal Principles

1. The scope of the defendant's duty of care was to be assessed by reference in particular to the provisions of ss 5B and 5O of the Civil Liability Act 2002.
2. The result of the modification to the common law by s 5O of the Act is that, in cases of medical negligence, a two stage approach is necessary. The first is the question of whether the evidence established negligence on the part of the defendant. The second is whether, notwithstanding negligence, the defendant is able to establish that the practitioner acted in a manner that was widely accepted by peer professional opinion as competent professional practice.

Section 5B

1. The defendant, in submissions, did not contest the proposition that failure to note and report the presence of a visible and potentially life threatening lesion would, in ordinary circumstances, come within the general principles of negligence set out in s 5B of the Act.
2. The evidence established that, notwithstanding Professor Fox's concerns regarding hindsight, the lesion was visible on the 2004 scans. Dr Jones agreed that he saw it when he provided his blind report. The risk was foreseeable and significant. Dr Lees emphasised that the lesion had potentially fatal consequences.
3. If, as appeared, Dr Scott was unaware of the plaintiff's full medical history, he was not in a position to reach a reasoned conclusion that a lesion that rarely occurred in a patient of the plaintiff's age and gender was insignificant. Dr Lees explained the options that were available to investigate further the nature of the lesion by means of readily available and non-invasive techniques that would not have imposed an undue burden on the defendant.
4. These factors lead to the conclusion that the failure to note and report the presence of the lesion that appeared on the 2004 scans was more than an error of judgment on the part of Dr Scott. It was, as described by Dr Lees, "a significant miss" (Transcript 172.34).
5. I found that Dr Scott acted negligently in failing to report the lesion.

Section 5O

1. 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.
2. 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.
3. 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.
4. 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.

CAUSATION

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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 treatment - the stage III category

1. 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.
2. 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.
3. 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).
4. 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.
5. The second area of disagreement centred on the issue of whether a core biopsy would necessarily have been undertaken in 2004.
6. 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.

Pre-diagnosis ill health

1. The plaintiff registered with a medical practice at Bondi Junction in October 2007 and consulted a general practitioner there about urinary tract symptoms that developed in the 12 months prior to diagnosis in July 2008. Those symptoms increased in frequency and intensity to the point where she developed fatigue, aches and pains in her limbs and pain on the left side of her body.
2. The general practitioner referred the plaintiff for ultrasound on 30 June 2008. She told the plaintiff that it indicated a lesion on the left kidney. A CT scan was performed on 7 July 2008. The plaintiff said she was very concerned and distressed because of her past history. Her general practitioner referred her to Associate Professor Millard at the Prince of Wales Hospital.
3. The ill health from which she suffered in 2007 and 2008 before investigations into her condition were undertaken would clearly have been avoided had she been appropriately treated in 2004.

The failed biopsy

1. On referral to Professor Millard and, after discussion with him, the plaintiff attended at the Prince of Wales Hospital for a biopsy. The needle penetrated her lung causing her significant pain.
2. Mr Szabo accompanied the plaintiff when she attended for the initial biopsy during which they encountered a "confronting" experience (Transcript 186.33). He waited for about 15 minutes while the biopsy was performed until he heard the plaintiff scream. The plaintiff was wheeled face down and screaming with pain through double doors. Mr Szabo described a period of panic during which pain killers were located and provided to the plaintiff.
3. He said the plaintiff was terrified when told that a second biopsy would be required. It could not be performed during the three weeks required to allow the plaintiff to recover from the injury to her lung. During this period she slept in a sitting position and, to his observation, she continued to be in pain.
4. Mrs Darcy was also present at the time of the failed biopsy and she described a scene in similar terms to that provided by Mr Szabo. She confirmed that the plaintiff needed to sleep in a sitting position for longer than a week because of pain and her incapacity to breathe when lying down.
5. About one month after the nephrectomy the plaintiff was re-admitted to the Prince of Wales Hospital for a period of 10 days for treatment of emboli that developed in the lung that was punctured in the course of the failed biopsy.
6. I considered that the injury to the plaintiff's lung resulting from the failed core biopsy came within the principles of Chappel v Hart so that on another occasion another radiologist might have more accurately performed the biopsy or taken the retro-peritoneal approach referred to by Associate Professor Smee. I therefore accepted that the injury and the pain and suffering that resulted from the failed biopsy was causally related to the defendant's surgery.

The stage III treatment

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Delay in diagnosis

1. I accepted that the delay in diagnosis, in all probability, affected the prospects of recovery. At the time of hearing more than seven years had elapsed since the nephrectomy was performed. In ordinary circumstances, it might be considered that the plaintiff was cured. Professor Levi pointed to statistics that suggested that, although treatment of Wilm's tumours resulted in relatively high rates of cure, those rates reduced as the age at which they were treated increased. Further, Professor Fox said there was never a 100% assurance of cure. Finally, Associate Professor Millard noted that Wilm's tumours were so rare in adults that there were no reliable statistics upon which to provide a long term prognosis.

Medical opinion

1. Dr Dalton provided the only expert medical evidence concerning the plaintiff's post treatment physical condition. He examined the plaintiff once, in March 2014, for a period of 45 minutes. His conclusion was that, aside from a level of deconditioning that could be addressed with an exercise program, the plaintiff suffered no ongoing physical symptoms resulting from the cancer or its treatment. He said the plaintiff did not complain to him of physical disability affecting daily activities, university studies or capacity to perform domestic tasks.

Psychiatric injury

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

Pre-existing psychological condition

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. I concluded therefore that there was no evidence of any pre-existing diagnosed or diagnosable psychiatric condition.

The absence of complaint

1. 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)
2. 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)
3. 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.
4. 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.
5. 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)

Medical opinion

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Non economic loss

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. I accepted that the plaintiff remained vulnerable to exacerbations and periods of disability resulting from the psychiatric injury.
8. 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.

Economic loss

1. 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.
2. 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.
3. 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)
4. 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.
5. 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.
6. 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.

Domestic Care

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.

Out of pocket expenses

1. Past out of pocket expenses were listed in a schedule, Exhibit G. It was difficult in some cases to determine which of them were compensable. Doing the best I could, I did not allow those that clearly related to the period of treatment. I also disallowed the fees claimed for Dr Greenfield.
2. A number of pharmaceutical accounts were provided without explanation of their relationship to the plaintiff's illness. I accepted that some of them related to treatment for compensable injuries and concluded with my best estimate of $2,000.
3. I allowed the fees claimed for the gymnasium and Ms Stein, psychologist.
4. The result was a figure of $4,806.41 that I rounded to $5,000.
5. For the future, the evidence clearly established a requirement for psychiatry and psychology as proposed by Dr Pickering, as well as the ongoing support of a general practitioner and medication. I considered the amount claimed to be reasonable and I allowed $25,000.

ORDERS

1. My orders are as follows: 1. Verdict and judgment for the plaintiff in the sum of $609,939.50 comprising: Non economic loss $136,500.00 Past income loss and superannuation $78,144.00 Future income loss and superannuation $250,000.00 Past care $65,295.50 Future care $50,000.00 Past out of pocket expenses $5,000.00 Future out of pocket expenses $25,000.00 $609,939.50 1. The defendant is to pay the plaintiff's costs of the proceedings. This order is suspended for seven days to allow the parties to be heard on the issue of costs. 2. The exhibits will be retained for 28 days. 3. My reasons are published.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2016