Curran v Yaramati

District Court of NSW|2023-03-17

TABLE OF CONTENTS JUDGMENT - paragraph 1 The pleadings - paragraph 5 Background facts - paragraph 13 The expert evidence Plaintiff's expert medical reports Report of Dr Bernard Kelly - paragraph 48 Report of Dr Ken Mackey - paragraph 51 Reports of Dr Flecknoe-Brown - paragraph 59 Defendant's expert medical reports Report of Dr Christopher Pitt - paragraph 66 Reports of Dr Christopher Vickers - paragraph 69 Conclave joint report of Dr Flecknoe-Brown and Dr Vickers - paragraph 78 Medical records and consultation notes - paragraph 104 The lay evidence Oral evidence of the plaintiff - paragraph 108 Oral evidence of the defendant - paragraph 160 Joint report of Dr Mackey and Dr Pitt dated 24 February 2023 - paragraph 266 The oral evidence of the causation/damages experts - paragraph 270 The evidence of the general practitioner liability experts - paragraph 300 The submissions of the parties - paragraph 357 Applicable legal principles - paragraph 362 Section 5O of the CLA - paragraph 363 Standard of care if s 5O of the CLA is inapplicable - paragraph 377 Causation - paragraph 381 Findings - paragraph 386 The plaintiff - paragraph 388 Dr Yaramati - paragraph 391 Does the plaintiff now have coeliac disease? - paragraph 397 The 2015 test results - what steps should reasonably have been taken - paragraph 401 The plaintiff's diarrhoea and symptoms - paragraph 418 The plaintiff's referrals to specialists and dietitians in the 2015-2020 period - paragraph 432 The plaintiff's weight loss - paragraph 437 The plaintiff's falls - paragraph 450 The colonoscopies performed on the plaintiff from 2017-2019 - paragraph 454 The 2019 hospital admissions - paragraph 458 The plaintiff's electrolyte issues, anaemia and osteoporosis diagnoses - paragraph 463 The August 2020 hospital admission and biopsies - paragraph 480 The September 2020 hospital stay and biopsies - paragraph 491 September-December 2020 - paragraph 501 Overall conclusions from the above findings - paragraph 510 The Defence under section 5O of the CLA - paragraph 513 Duty and breach of duty - paragraph 520 Causation - paragraph 527 Damages - paragraph 535 Determination - paragraph 545

JUDGMENT

In these proceedings, the plaintiff, Mr Michael Curran, claims damages in the tort of negligence against the defendant, Dr Veerendra Giri Yaramati, for alleged breaches of a duty of care owed by the defendant to Mr Curran in the period 2015-2020. It is alleged that the defendant who was a general practitioner failed in breach of duty to diagnose potential coeliac disease in the plaintiff, to refer the plaintiff for testing and to provide appropriate advice. Dr Yaramati denies any breach of duty of care, and also asserts that causation and damages have not been established by the plaintiff. In addition, Dr Yaramati has pleaded a defence under section 5O of the Civil Liability Act 2002 (NSW) ("CLA").
At all relevant times, Dr Yaramati was a general medical practitioner practising at Urana, a country town in the Riverina region of New South Wales. The plaintiff, who was born in April 1947 and was nearly 76 at the commencement of the final hearing, was a patient of Dr Yaramati and a retired jockey and horse trainer.
The plaintiff had many medical consultations with general practitioners and specialists, including particularly Dr Yaramati, in the period from 2015-2020. In due course, in December 2020, the plaintiff consulted a Dr Chan in Corowa who diagnosed the plaintiff with coeliac disease after arranging for a test. After altering his diet to remove wheat and gluten products, the plaintiff reported experiencing a noted improvement in his health. It is the alleged negligent delay in diagnosing the plaintiff's coeliac disease and referring him for testing for it which is at the centre of the plaintiff's claim against the defendant. In the course of the hearing, a voluminous quantity of medical notes, records and correspondence was tendered. In addition, the plaintiff, Mr Curran, was cross-examined in detail about his symptoms and consultations with various doctors, particularly Dr Yaramati, in the period from 2015 to 2020.
The plaintiff's damages as claimed were set out in his Schedule of Damages provided to the Court for the purposes of the hearing. These were limited to non-economic loss, past out-of-pocket expenses and future out-of-pocket expenses.

The pleadings

The plaintiff commenced proceedings against the defendant by a Statement of Claim filed on 29 October 2021.
By an Amended Statement of Claim filed on 12 December 2022, the plaintiff pleaded that he resided in Urana and that the defendant was a qualified medical practitioner who at all material times practised as a general practitioner at the Urana Medical Centre in Urana. In paragraphs 3 to 68 of the Amended Statement of Claim, the plaintiff pleaded his various symptoms, consultations and diagnoses with various medical practitioners and dietitians in the period from March 2015 to 24 December 2020, when he consulted with Dr Chan. From paragraph 69 in the Amended Statement of Claim, the plaintiff pleaded that the defendant as a general practitioner owed the plaintiff a duty of care to exercise reasonable care and skill in providing treatment to the plaintiff from 2017 onwards to 2020. It is alleged that the defendant ought to have conducted a necessary and thorough assessment of the plaintiff's gastrointestinal symptoms in order to discharge the duty of care owed to him. It is also pleaded that there was a risk of harm from a failure to take all necessary steps to ensure that the plaintiff's gastrointestinal condition was diagnosed including ordering tests to detect coeliac disease and provide dietary advice in 2017. It is pleaded that the defendant ought to have known of the risk of harm and that the risk of prolonged and severe gastrointestinal symptoms would occur in the absence of proper diagnosis. It is alleged that the risk of harm pleaded was foreseeable.
The breaches of duty of care alleged are particularised in paragraph 75 of the Amended Statement of Claim as follows: "75. In breach of the Defendant's duty of care owed to the Plaintiff, he failed to take reasonable precautions against the risk of harm as would reasonably competent General Practitioner [sic] in Australia. PARTICULARS OF THE BREACH OF DUTY (a) Failing to order and carry out any appropriate testing for the cause of the Plaintiff's diarrhoea after 2015. (b) Failing to order and carry out any appropriate testing to investigate the cause of the Plaintiff's abnormal blood pathology after 2015. (c) Failing to ensure that an assay blood test to detect Coeliacs diseases [sic] was ordered and undertaken by December 2015, and anytime thereafter. (d) Failing to provide dietary advice to the Plaintiff to eliminate wheat and gluten by December 2015, and thereafter. (e) Failing to investigate the cause of the Plaintiff electrolyte imbalance [sic] at any time. (f) Allowing the Plaintiff's drastic weight loss to continue between 2018 to 2020. (g) Permitting the Plaintiff to become systemically unwell for over 3 years."
It is also pleaded that the plaintiff's injuries and disabilities were caused or materially contributed to by the defendant's breach of duty of care. It is said that but for the breach of duty, the plaintiff would have been diagnosed with coeliac disease by late 2015. In paragraph 78 of the Amended Statement of Claim, very extensive particulars of injuries and disabilities are provided including chronic diarrhoea, abdominal pain, significant weight loss, osteoporosis, chronic malaise and chronic malnutrition as well as various deficiencies in vitamins, anaemia, weakness and falls due to a loss of balance in the context of dizziness and low energy. It is also particularised that as a result of the breach of duty of care by the defendant, the plaintiff experienced unnecessary colonoscopies, specialist referrals and investigations.
In his Amended Defence filed on 12 January 2023, the defendant denies liability. In the Defence, the defendant positively replies to a number of the paragraphs in the plaintiff's Amended Statement of Claim setting out the alleged history of the plaintiff's consultations with the defendant.
In paragraphs 60-61 of the Defence, the defendant pleads as follows: "60. Further, in answer to the whole of the Statement of Claim, the defendant relies on section 5O of the Civil Liability Act 2002 (NSW) and says that in the provision of professional services to the plaintiff as a general practitioner, he acted in a manner that, at the time the services were provided, was widely accepted in Australia by peer professional opinion as competent professional practice. Particulars (a) as provided by the report from Dr Christopher Pitt, General Practitioner, dated 15 April 2022 and Dr Christopher Vickers, Gastroenterologist, dated 11 April 2022. (b) The defendant's management is consistent with competent peer practice. (c) The defendant took appropriate histories, performed examinations, ordered appropriate investigations, and provided appropriate management advice and referrals. 61. Further, if, which is denied, section 5O of the Civil Liability Act 2002 (NSW) required the defendant to establish that he acted pursuant to a practice that was in existence at the relevant time, then the defendant says that the manner in which he acted including doing the things referred to in paragraph 25 above, accorded with or was pursuant to a practice that was in existence at that time."
The defendant also did not admit the plaintiff's injuries, loss and disabilities as pleaded by the plaintiff. Causation is also disputed.
The hearing was adjourned on a number of occasions due to the availability of expert witnesses, counsel and the Court.

Background facts

A number of background facts were established in the course of, and by, the evidence. Unless otherwise indicated, what follows are the Court's findings in relation to the background facts.
As indicated above, the plaintiff was born in April 1947. He was nearly 76 years of age at the commencement of the final hearing. The plaintiff went to school in Melbourne and left school at 13 years of age to become an apprentice jockey. After finishing a period as a jockey, the plaintiff became a horse trainer. He currently works as a caretaker at a large grain farm.
In the course of the plaintiff's career, he had numerous falls from horses which resulted in injuries to his shoulders. The plaintiff received workers compensation payments for various periods because of his falls.
In around 2003, the plaintiff had surgery to his right shoulder for a torn tendon.
Surgery to the left shoulder followed in 2004. At about this time, the plaintiff also had bilateral hip replacements.
The medical records suggest that in 2005 after his various shoulder and hip operations, the plaintiff undertook some bus driving. In 2008, the medical consultation notes record him as saying that he had started driving the school bus in Urana.
The medical consultation notes record the plaintiff suffering urinary problems including with urinary tract infections from 2008. I accept this was the position. The plaintiff was referred to a specialist urologist at this time and the medical records note a history of acute urinary retention with a catheter being inserted to allow the draining of urine (Plaintiff Court Book, Exhibit 2 ("PCB or PTB") page 212 - consultation with Dr Geary on 13 March 2008). The plaintiff was prescribed antibiotics and his problems continued with urinary retention over the next few months. In cross-examination, the plaintiff had no recollection of this treatment and, in particular, he denied himself inserting a catheter despite records suggesting that he had (PCB page 213 - consultation with Dr McCurdy on 28 July 2008). The plaintiff's recollections were generally poor and I accept the accuracy of these notes in the absence of other more cogent evidence.
In June 2009, Mr Curran undertook a transurethral resection of the prostate because of urinary problems and ongoing risk to his bladder and kidneys (PCB page 215 - consultation with Dr McCurdy on 10 June 2009).
The medical notes record various urinary tract infections in the plaintiff in 2010.
On 23 January 2015, the plaintiff first saw Dr Yaramati, the defendant, as a new patient. I set out in some detail below the plaintiff's relevant consultations with doctors in the period from 2015 to 2020 as revealed in the consultation notes and medical records in evidence.
As set out below, in his oral evidence the plaintiff was a very poor historian. He appeared to have little recollection of the discussions in consultations with various doctors, including the defendant. He also appeared to have a very poor recollection of timing and, in a number of cases, did not have any recollection of significant surgery or hospital admissions. The plaintiff also appeared to have recollections as to his weight at different times which were inconsistent with the medical records in evidence.
What is clear from the evidence is that the plaintiff saw the defendant Dr Yaramati as his general practitioner on numerous occasions in each year in the period 2015 to 2020.
Following complaints by the plaintiff disclosing urinary tract infections and bladder issues, the defendant undertook wide ranging blood tests and referred the plaintiff to Dr Lewin, a urologist, in February 2015 due primarily to highly elevated PSA (Prostatic Specific Antigen) levels. Various further tests were ordered by the defendant and Dr Lewin. In March 2015, Dr Lewin found an abnormal prostate on examination of the plaintiff. The plaintiff was reported to have had symptoms suggestive of prostate cancer. In April 2015, biopsies revealed a high risk of prostate cancer which was likely to be metastatic. In due course, Dr Lewin diagnosed the plaintiff with prostate cancer and referred him to Dr Ong, oncologist, for radiation therapy and treatment.
Thereafter, the plaintiff had numerous reviews by Dr Ong. In June 2015, Dr Ong diagnosed the plaintiff with stage IV prostatic adenocarcinoma with metastases but noted that the plaintiff had normal bowel function.
By November 2015, it appears the plaintiff had completed a course of radiation therapy (Exhibit 3, Defendant's Tender Bundle ("DTB"), volume 2/574). This treatment caused side-effects which eventually led to a diagnosis of radiation proctitis with some rectal bleeding. Androgen deprivation therapy was commenced to attempt to counteract some of the effects of the radiation treatment.
Various blood tests arranged by the defendant in January 2015 and December 2015 indicated low vitamin B12 and serum folate levels in the plaintiff (DTB 2/295; 2/338). Red cell folate levels were reported as normal in both tests. As a consequence of the low B12 and serum folate levels, the defendant injected the plaintiff with B12 vitamins and prescribed tablet folate supplements on numerous occasions. The defendant also, from February 2016, gave the plaintiff injections for his prostate cancer. It seems that the plaintiff completely ceased radiation therapy in about November 2015 (DTB 2/580).
At various times, the plaintiff was referred to Dr Schmidt, a general surgeon who also performed gastroenterology procedures, for review, particularly in the context of per rectal bleeding. Dr Schmidt performed a number of colonoscopies on the plaintiff from 2017 to 2020. These are considered further below.
In January 2017, Dr Yaramati referred the plaintiff again to Dr Lewin because of an episode of haematuria, having regard to his history of prostate cancer.
On various occasions from 2016 (which will be referred to in some detail below), there were reports by the plaintiff of having erratic bowel function with intermittent diarrhoea. Such complaints by the plaintiff were made not only to the defendant, Dr Yaramati, but also to Dr Ong and to Dr Lewin and Wagga Base Hospital. An issue was whether this was caused by radiation proctitis, as a result of the plaintiff's radiation therapy in 2015. The plaintiff reported diarrhoea symptoms to Dr Yaramati in June-July 2016 which resolved shortly thereafter. There were similar reports from Dr Ong to Dr Lewin and Dr Yaramati in May 2017 and to Dr Yaramati in October 2017. On the latter occasion, a history of intermittent diarrhoea with no constipation was given. Shortly thereafter, the plaintiff informed Dr Yaramati on 18 October 2017 that his diarrhoea had resolved with Gastro-Stop and his bowels had settled. No increasing symptoms of diarrhoea were apparently reported by the plaintiff at this time.
In February 2018, Dr Ong in a letter to Dr Yaramati copied to Dr Lewin stated that the plaintiff had no further diarrhoea. In March 2018, the plaintiff told Dr Schmidt that he did have rectal bleeding associated with diarrhoea and a colonoscopy was planned.
In August 2018, the plaintiff reported to Dr Yaramati of having episodic diarrhoea for a number of days, then stopping and recurring regularly. Metamucil was recommended and shortly thereafter the plaintiff reported overall feeling well with no follow-up of episodic diarrhoea. In January 2019, the plaintiff reported diarrhoea on admission to Wagga Base Hospital for an infection following blocking kidney stones. However, at that time his weight was reported as being 65kg, well above his pre-cancer diagnosis weight. It appears that no complaints of diarrhoea were made to Dr Yaramati at about that time. In February 2019, the plaintiff saw Dr Yaramati for a long consultation relating to feeling low. No weight loss or gain was reported. Shortly thereafter, the plaintiff saw Dr Eddie Ong and stated that he was well with no further diarrhoea.
It appears that the plaintiff saw Professor Tara Mackenzie, physician, during an early 2019 stay in Wagga Base Hospital. Dr Mackenzie reported in March 2019 on an ultrasound of the plaintiff's abdomen which showed a fatty liver but no other abnormalities. Multiple blood tests were also undertaken. The plaintiff informed Dr Yaramati in March 2019 that he had seen Dr Mackenzie, was happy with his progress and had no concerns. In April 2019, he informed Dr Yaramati that overall, he was feeling well.
In June 2019, the plaintiff informed Dr Yaramati that he had constipation followed by diarrhoea for a few weeks and was using Metamucil. Soon after, in June 2019, the plaintiff saw a dietician Mr Gallo with his bowel recorded as being fluctuating. In July 2019, the plaintiff reported to Dr Yaramati that he was having chronic diarrhoea and was needing regular medications. Dr Yaramati advised the plaintiff to use Questran-Lite sachets.
Following this change in the pattern of his bowel habits, the plaintiff was referred by Dr Yaramati to Dr Schmidt, the general surgeon who also performed gastroenterological procedures. In August 2019, the plaintiff reported to Dr Schmidt alternating diarrhoea and constipation but with his abdomen being soft and not tender. On the same day the plaintiff saw Dr Yaramati, and said he was feeling well and was awaiting follow-up consultations with Dr Mackenzie and Dr Ong. On the same day Dr Schmidt informed Dr Ong of the plaintiff's presentation including alternating diarrhoea and constipation.
In various presentations in late 2019, the plaintiff reported his bowel being normal and that he was feeling well. Similar reports were made in the first half of 2020 on various occasions. On 23 July 2020, the plaintiff saw Dr Yaramati and reported intermittent symptoms of diarrhoea. The Questran medication was increased.
In August 2020, the plaintiff was admitted to Wagga Base Hospital following a fall. Various tests and procedures were undertaken while the plaintiff was in hospital including a colonoscopy. The plaintiff is recorded as suffering from urosepsis at this time and was very unwell. Two biopsies were taken during the colonoscopy which did not indicate abnormal villous functionality in the small bowel, a symptom of potential coeliac disease. In the Wagga Base Hospital records for 14 August 2020 various tests are referred to. The plaintiff was referred to as having severe electrolyte derangement and anaemia. Chronic diarrhoea over the last 18 months with increasing frequency was also referred to. This level of diarrhoea was not mentioned by the plaintiff to the defendant at this time.
The records show that on 17 August 2020 the plaintiff left Wagga Base Hospital against medical advice. Dr Yaramati was rung up about this by an intern. The plaintiff surprisingly did not recall in his oral evidence either the hospital admission or leaving against medical advice. Dr Yaramati was told that coeliac serology testing was in progress. A small bowel biopsy undertaken in Wagga Base Hospital dated 21 August 2020 and collected on 13 August 2020 did not refer to coeliac disease. The villous morphology was described as normal and mild.
On 2 September 2020, the plaintiff had a consultation at Wagga Base Hospital with the gastroenterologist Registrar with a background of anaemia and chronic diarrhoeal illness. It appears the plaintiff had continuing urosepsis and remained unwell at this time.
On 4 September 2020, a gastroscopy and further colonoscopy were performed at Wagga Base Hospital and there was a reference in the notes to a desire to see the histology result to determine if there was any evidence of coeliac disease and/or small bowel lymphoma. Five biopsies were taken during the colonoscopy. These results were not received by Dr Yaramati until 2021 despite follow up by his practice. A letter from Wagga Base Hospital to Dr Yaramati dated 9 September 2020 referred to the plaintiff's "partially managed coeliac disease". However, there had been no management for coeliac disease by any medical practitioner or dietician at this time. Soon after, the plaintiff saw Dr Yaramati on 15 September 2020, where he was said to be managed for anaemia and electrolyte abnormality in the context of a gastroscopy and colonoscopy and radiation proctitis.
The plaintiff saw Dr Yaramati in September and October 2020, reporting some weight loss.
Following a telephone assessment by the community aged home nursing team (which the plaintiff did not recall in his cross-examination), the plaintiff saw Dr Aileen Chan at Corowa Medical Clinic, a general practitioner. He reported to her a history of recurrent episodes of diarrhoea and hypokalemia requiring hospitalisation. Dr Chan ordered blood tests for coeliac disease which returned positive. On 24 December 2020, the plaintiff saw Dr Chan again who informed him of the coeliac disease diagnosis and provided dietary advice. The plaintiff altered his diet and gained weight with the cessation of the consumption of wheat and gluten products.
The plaintiff accepted in cross-examination that he did not have a good recollection of his consultations with Dr Yaramati in the period 2015 to 2020: T31.30. I accept that evidence. This was reflected in the clearly poor recollections which he had as displayed during cross-examination. In my view, where the plaintiff's oral evidence is inconsistent with medical records or consultation notes, unless there are other objective records suggesting inaccuracy, the medical records and consultation notes should be accepted in preference. I accept the defendant's submission on this point.
The plaintiff stated that he did mention to Dr Yaramati on occasions having watery bowel movements: T76.36. He confirmed that they were a matter of concern to him. The plaintiff was not sure whether the first time he mentioned watery bowel movements after July 2016 to Dr Yaramati was in October 2017: T77.20. He also could not recall whether he was experiencing diarrhoea on a regular basis in 2017: T78.18. The plaintiff in addition could not recall whether it was not until 31 August 2018 that he reported to Dr Yaramati any episodic diarrhoea and that in the period October 2017 to August 2018 he made no complaint to Dr Yaramati about regular bouts of diarrhoea: T82.4. Later, the plaintiff conceded in cross-examination that he had bouts of diarrhoea on an infrequent basis between 2015 and 2018. He also agreed that it was not until he was very sick in 2020 that he was experiencing diarrhoea on a regular basis: T88.43-T89.11.
In relation to weight loss, it appears that the plaintiff had fluctuating weight particularly in the light of hormonal therapy which he received but he did not experience substantial unexplained reduction in weight until late 2020. I consider the evidence on this matter further below.
I find that Dr Yaramati was the plaintiff's treating general practitioner from January 2015 until October 2020. However, in that period the plaintiff also saw Dr Lewin, urologist, on a number of occasions following referrals and also saw Dr Ong regularly following the diagnosis with prostate cancer. Dr Schmidt, general surgeon, also performed a number of gastroenterological procedures. Dr Mackenzie, physician, also saw the plaintiff at various times in 2019 and 2020. On the evidence, it was not until the plaintiff's admissions to Wagga Base Hospital in the second half of 2020 that any medical practitioner suggested potential coeliac disease relating to the plaintiff.

Report of Dr Bernard Kelly

The plaintiff tendered a short report from Dr Bernard Kelly AM dated 22 October 2021. Dr Kelly died in 2022 before the final hearing. Parts of the report were ruled inadmissible due to a lack of reasoning being provided.
Dr Kelly referred to nine consultations where the plaintiff reported diarrhoea in 2017-2020 and reports of significant weight loss. Dr Kelly refers to the plaintiff weighing only 31 kilograms in November 2020 which was denied by the plaintiff and in my view was not established by the evidence.
Dr Kelly noted that diarrhoea may have many causes including allergies to certain foods. He expressed the opinion that food intolerance would have been high on the possible list of diagnostic problems.

Report of Dr Ken Mackey

The plaintiff tendered a report of Dr Ken Mackey AM. Dr Mackey is a highly experienced general practitioner with additional qualifications in obstetrics. He has held various professional positions in rural doctors' associations and was the principal in a country medical practice for well over 20 years.
In his report dated 14 November 2022, Dr Mackey was critical in relation to the medical management of the plaintiff by the defendant. Dr Mackey referred to the blood pathology tests on 30 January 2015 as revealing a very high PSA count suggestive of prostate cancer as well as long-term liver dysfunction. Reference was made to December 2015 blood pathology results which revealed low vitamin B12 and serum folate levels for the plaintiff on completion of radiation therapy with liver dysfunction and electrolyte abnormalities. Dr Mackey expressed the opinion that the most common cause of the deficiencies mentioned was coeliac disease and that other serious conditions for Mr Curran were easily excluded by his medical history. The opinion is expressed by Dr Mackey that a simple blood test for coeliac disease in December 2015 would have revealed coeliac disease as the likely cause of the vitamin deficiencies and that the routine management of coeliac disease would have prevented many further complications suffered by the plaintiff.
In addition, Dr Mackey referred to the plaintiff's diarrhoea episodes in October 2017 as necessitating detailed investigation. Again, he expresses the opinion that a simple blood test for coeliac disease in October 2017 would have revealed coeliac disease as the likely cause of the plaintiff's diarrhoea and bowel dysfunction. Reference was made to anaemia being noted in May 2018 and that confirmation of the cause of this was overlooked. Some investigation could have determined the cause. Dr Mackey noted and assumed that by August 2018 diarrhoea was recurring regularly for the plaintiff. The opinion was expressed that although management for the diarrhoea was instituted, confirmation of the cause was overlooked particularly in the context of bone density concerns in November 2018 "in the extreme range". Dr Mackey states that a simple blood test for coeliac disease in November 2018 would have revealed coeliac disease to be the likely cause of the plaintiff's osteoporosis. Reference was made by Dr Mackey to the plaintiff's assumed treatment at Wagga Base Hospital for serious electrolyte abnormalities in August 2020 in the context of assumed disturbed renal and liver function with considerable weight loss. A coeliac disease blood test in August 2020 would, in Dr Mackey's opinion, have revealed coeliac disease as the likely cause of the electrolyte disturbance and weight loss. Dr Mackey expresses the opinion that there were many occasions of clinical presentation by the plaintiff, mostly related to abdominal matters, where a simple test for coeliac disease was overlooked. Reference was made to the straightforward and curative management for Mr Curran following the detection of coeliac disease in December 2020 by Dr Chan.
Dr Mackey noted the necessity for further testing to determine the underlying cause of various problems the plaintiff had including vitamin B12 and folate deficiency, anaemia, osteoporosis, liver dysfunction and weight loss. The opinion is expressed that in relation to Mr Curran, coeliac disease and inflammatory bowel disease were the only reasonable bases for his presentation in the context of vitamin B12 and folate deficiencies.
Reference was also made to the plaintiff having a number of falls in 2019.
In relation to the plaintiff's radiation treatment for prostate cancer, Dr Mackey noted the inflammatory radiation proctitis and that further areas of the bowel would not have been affected.
Numerous health issues associated with coeliac disease were outlined by Dr Mackey in his report including unexplained abdominal pain, irritable bowel symptoms, nutrient deficiency, anaemia, osteoporosis and unexplained neurological complaints.
Dr Mackey expressed the opinion that a reasonable standard of general practice would have involved assessment and analysis of the many symptoms of the plaintiff including physical changes and pathology abnormalities that were made known to Dr Yaramati. The view was expressed in summary in the light of the previous opinions given that Dr Yaramati had not assessed or managed the plaintiff with the information obtained over a considerable period resulting in an exacerbation of the plaintiff's symptoms and co-morbidities due to the failure to diagnose coeliac disease. The opinion was expressed for those reasons that Dr Yaramati had failed to exercise a reasonable standard of general practice care in managing the plaintiff from 2015.

Reports of Dr Flecknoe-Brown

The plaintiff also tendered two reports of (Associate Professor) Dr S Flecknoe-Brown, consultant physician and clinical pathologist.
In his first report dated 9 November 2021, Dr Flecknoe-Brown noted his extensive experience as a consultant physician and clinical pathologist in private practice between 1982 and 1999 after which he moved to regional areas and practised there.
In his first report, Dr Flecknoe-Brown provided a history in relation to the plaintiff's treatment by Dr Yaramati. He also mentioned the analysis by Dr Chan in December 2020 of the plaintiff's symptoms in the light of the presence of recurrent episodes of diarrhoea. He mentioned that Dr Chan ordered blood tests for coeliac screening in the context of strongly positive antibodies of the type associated with coeliac disease. It was noted that since the diagnosis in December 2020 the plaintiff had changed his diet and had improved dramatically.
Dr Flecknoe-Brown expressed the opinion that despite the negative small bowel biopsy reported in Wagga Base Hospital in September 2020 (it appears from the conclave report that this should be a reference to August 2020), he had no doubt that Mr Curran's diagnosis was coeliac disease as he had responded well to appropriate treatment for it. Dr Flecknoe-Brown seemed to accept that a small bowel biopsy was essential for a diagnosis of coeliac disease because of the dramatic change in lifestyle that a diagnosis of coeliac disease imposes on the patient.
Dr Flecknoe-Brown expressed the opinion that the evidence established that the plaintiff probably had coeliac disease as long ago as early 2015 because of the low folate levels. The view was expressed in the report that "the combination of low folate and iron deficiency is almost unique to coeliac disease, because the small bowel dysfunction leads to malabsorption of folic acid and the chronic weeping of blood from the damaged small bowel leads to iron deficiency. The low B12 noted in Dr Yaramati's records was almost certainly laboratory artefact resulting from the low serum folate level".
In his report, Dr Flecknoe-Brown expresses the opinion that the period of five years of undiagnosed and untreated coeliac disease has exposed the plaintiff "to a risk of lymphoma which may declare itself at some time in the future". Coeliac disease also in his view hastened the onset of osteoporosis for the plaintiff requiring lifelong treatment. Rigorous adherence to the gluten exclusion diet was seen as the most important ongoing treatment and this was largely in the plaintiff's hands. However, the opinion was expressed by Dr Flecknoe-Brown that the plaintiff would have orthostatic hypotension for the rest of his life and this would require osteoporosis treatment for the rest of his life.
In his supplementary medical report dated 6 January 2022, Dr Flecknoe-Brown noted that the average life expectancy for an Australian male was 82.1 years and provided costing for treatment of the plaintiff for 7.5 years. This included ongoing physical assessments and testing and for risks of falls and risks of lymphoma. Treatment costs are set out in his report.

Report of Dr Christopher Pitt dated 15 April 2022

The defendant relied on a report of Dr Christopher Pitt, general practitioner, dated 15 April 2022. In his detailed report, Dr Pitt considered the treatment and management by the defendant of Mr Curran as well as considering the expert opinion of Dr Kelly, the plaintiff's first general practitioner expert. Dr Pitt is an experienced general practitioner who has also been the head of examiners for admission to the Royal Australian College of General Practitioners in Queensland for a number of years: T619.50.
In the plaintiff's written submissions in chief, a number of criticisms are made of the evidence given by Dr Pitt (paragraphs 29-32). Dr Pitt is described as argumentative and dismissive of the views of Dr Mackey. It is fair to say that Dr Pitt was a person of strong opinion, and he could be dismissive of contrary opinions. However, overall, I found his evidence to be detailed and thorough. I accept the defendant's submission on that point.
It is unnecessary to go through in detail Dr Pitt's lengthy and thorough analysis. Some more important opinions expressed by Dr Pitt in his report are as follows: 1. Dr Pitt expressed the opinion that Dr Yaramati's performance as the plaintiff's general practitioner was consistent with reasonable and competent professional practice widely accepted by peer professional opinion - paragraph 6. Dr Yaramati, in his view, performed appropriate examinations and ordered appropriate investigations relevant to the clinical context and probability diagnoses and provided appropriate care to the plaintiff; 2. Episodic diarrhoea is a common presentation in general practice, the causes of which are typically benign and the cause self-limiting. Radiation treatment also is a cause of diarrhoea in patients who have undergone radiotherapy to the pelvic organs. The plaintiff had patterns of recurrent intermittent self-limiting episodes of diarrhoea often separated by months at a time and there was no family history of coeliac disease. Further, he did not present to Dr Yaramati with features suggestive of coeliac disease. The plaintiff's weight loss only became clinically significant in late 2020; 3. Given the presence of symptoms that were explained by the plaintiff's known diagnoses and the absence of presenting features suggestive of coeliac disease, coeliac disease was not a probable diagnosis and specific investigations for coeliac disease were not warranted by Dr Yaramati - paragraph 11. With the benefit of hindsight, the earliest that any doctor could have reasonably diagnosed coeliac disease in the plaintiff was in August 2020 when there was a clinical picture of malabsorption and endoscopic evidence of loss of villi in the small bowel - paragraph 12; 4. If August 2020 was the first point at which coeliac disease was the probable diagnosis, it was unreasonable to expect a general practitioner to arrange for coeliac disease testing or to recommend a gluten-free diet prior to August 2020 - paragraph 14; 5. Dr Yaramati assessed, diagnosed and managed the plaintiff appropriately given the information prospectively available to him. Further, Dr Pitt expressed the opinion that the plaintiff did not suffer harm as a result of Dr Yaramati's assessment and management - paragraph 15; 6. Given its broad and subtle presentation, the approach to the diagnostic challenge of coeliac disease in general practice is nuanced - paragraph 50; 7. From paragraph 56 in his report, Dr Pitt sets out what he describes as modern Australian general practice and the appropriate approach for general practitioners; 8. The plaintiff's presentation in August 2018 with the complaint of intermittent diarrhoea in the context of an otherwise stable and unremarkable clinical picture presented no features of concern in relation to coeliac disease. Dr Yaramati's conservative management of the plaintiff's presentation was appropriate at the time - paragraph 69; 9. The small bowel biopsy result held by Dr Yaramati in August 2020 indicated normal villi which would make coeliac disease a less probable diagnosis for most general practitioners - paragraph 79. This would have left a reasonable general practitioner with significant doubt as to the likelihood of coeliac disease. A definitive review and opinion of a consultant gastroenterologist would be sought. See also paragraphs 95-96; 10. The plaintiff's weight did not involve significant reduction until late 2019-2020. From early 2018 to 2019, the plaintiff's weight demonstrated natural variation that essentially remained stable. Only a slight reduction occurred through to the second half of 2020 - paragraphs 99-100.

Reports of Dr Christopher Vickers

The defendant relied on two reports of Dr Christopher Vickers, consultant gastroenterologist and hepatologist, dated 11 April 2022 and 19 June 2022, respectively. Dr Vickers was the only gastroenterologist who gave medico-legal expert evidence at the hearing.
In his first report dated 11 April 2022, Dr Vickers sets out in summary the plaintiff's relevant history. Reference was made to two small bowel biopsies reporting normal villi with none of the classical features of coeliac disease. However, despite the negative biopsies of the plaintiff, Dr Vickers expressed the view that it was likely that the plaintiff does have coeliac disease given his high range blood antibody tests and his fairly dramatic response to a gluten free diet. Dr Vickers expressed the opinion that his view that the plaintiff had coeliac disease was "heavily focused on the hindsight knowledge after December 2020 when Mr Curran introduced a gluten-free diet". The view was expressed that it was likely that the plaintiff had coeliac disease since the time he was first introduced to gluten wheat products at the age of one as an infant. Dr Vickers expressed the opinion that an adult presenting with severe weight loss, electrolyte and mineral deficiencies with diarrhoea and debility such as the plaintiff, was a very rare presentation indicating a final decompensated state of long-standing or latent coeliac disease possibly due to the radiotherapy which the plaintiff had in 2015.
Dr Vickers considers the plaintiff's presentation prior to 2017 and expresses the opinion that Dr Yaramati provided appropriate and reasonable treatment for all of the various deficiencies. In addition, he expresses the view that the vitamin B12 deficiency was not likely due to coeliac disease. The iron deficiency and osteoporosis has, in Dr Vickers's opinion, other potential causes. He was of the view that there was nothing in the history of the plaintiff that could have indicated to the defendant that an alternative diagnosis was present.
Dr Vickers also expresses the opinion that if the defendant had sent the plaintiff to a gastroenterologist prior to 2020, the likelihood of him being referred back with normal small bowel biopsies would have been very high considering the biopsies taken later in 2020 were normal. He expresses the opinion that there was no certainty that a gastroenterologist would order coeliac antibodies testing if he knew that the biopsies were normal.
Dr Vickers accepted that if the plaintiff had been diagnosed prior to December 2020 with coeliac disease that he would have had a more favourable outcome with avoiding hospital admissions for diarrhoea, electrolyte disturbance and weight loss. He would have also likely avoided frequent diarrhoeal episodes for the 18 months from early 2019 until December 2020.
In relation to the causes in the delay of diagnosis, Dr Vickers saw no significant increased risk of developing malignant lymphoma, no significant effect of an increased risk of developing small bowel cancer, no increased risk of developing oesophageal cancer and no significant effect of hastening the onset of osteoporosis. The view is expressed that orthostatic hypotension was not a chronic complaint related to coeliac disease, although it was plausible that the plaintiff may have had temporary orthostatic hypotension at the time of his hospitalisations for diarrhoea and fluid and electrolyte depletion. In relation to balance difficulties and falls, Dr Vickers expressed the opinion that it was not by all means certain that the plaintiff's balance difficulties have been entirely generated by coeliac disease.
Dr Vickers criticised Dr Kelly's report as being generated by hindsight and not taking into account the disparate results of the normal small bowel biopsies in the context of severe symptoms. Dr Vickers disagreed with Dr Kelly's opinion that the plaintiff would not return to his full health despite correction of coeliac disease.
Dr Vickers also disagreed with Dr Flecknoe-Brown's opinions. He notes that Dr Flecknoe-Brown did not consider the small bowel biopsies which were normal, the effect of radiation on the pelvic gut, the impact of chronic urosepsis on Mr Curran's symptoms, debility and weight loss and the importance of low folic acid. Criticisms of Dr Flecknoe-Brown's calculations for future costs are also made.
In his second report dated 19 June 2022, Dr Vickers again emphasised that the two small bowel biopsies taken in August 2020 reported as normal villi with none of the classical features of coeliac disease. Dr Vickers noted that since the coeliac disease was diagnosed, the plaintiff had been on a traditional gluten-free diet which had caused clinical resolution of his diarrhoea and weight gain. Dr Vickers said that despite the biopsies of the small bowel performed at Wagga Base Hospital, the plaintiff was clinically likely to have had coeliac disease partially due to the excellent response to the gluten-free diet. He noted that rarely biopsies may not pick up the classical features of coeliac disease. He described the plaintiff's case in that light as "a very rare case indeed". He gave an excellent prognosis for the plaintiff, stated that he would not expect him to be at risk of intestinal lymphoma and saw no other medical illness that would affect a normal lifespan. A consideration of the various costs in Dr Flecknoe-Brown's report was given.

Conclave joint report of Dr Flecknoe-Brown and Dr Vickers

The plaintiff's causation/damages expert, Dr Flecknoe-Brown, and the defendant's causation/damages expert, Dr Vickers, met in conclave on 30 March 2023 and a joint report was prepared dated 21 April 2023 which was made Exhibit C in the proceedings.
In the report, the experts considered 11 questions put to them on behalf of the plaintiff and six questions put to them on behalf of the defendant.
The joint report of the two specialist experts is a lengthy and technically detailed document. In substance, the two experts maintained the opinions which they had given in their earlier respective reports. However, more detail was provided in relation to their opinions in the joint report and the document is therefore of real assistance in understanding the issues in the case. The two experts had before them for the purposes of their conference and joint report, the joint expert report of the general practitioners Dr Mackey and Dr Pitt and the various individual expert reports and the clinical records of Dr Yaramati, Dr Schmidt and Wagga and Corowa Hospitals.
Both experts agreed on the balance of probabilities that the plaintiff does suffer from coeliac disease. However, the experts did not agree as to when the diagnosis of coeliac disease was first available. Dr Flecknoe-Brown was of the opinion in the report that the diagnosis was first available from January 2015 following the first pathology report of very low folate levels whereas Dr Vickers was of the opinion that the diagnosis was first available from September 2020 when the last set of biopsies were reported. Dr Vickers described the plaintiff's case as "a very challenging case, even for a gastroenterologist" (paragraph 1.4). He was of the view that the diagnosis of coeliac disease could only be made in hindsight in the light of the histology, the plaintiff's antibody response and his response to the gluten free diet in 2020. Dr Vickers described it as "a difficult statement to make" that the plaintiff probably does have coeliac disease.
Dr Flecknoe-Brown expressed the opinion that the plaintiff's response to gluten exclusion was the most compelling aspect. He referred to the August 2020 biopsy in Wagga Base Hospital which he said did not show characteristic features of coeliac disease and he could see why Dr Vickers said that it was difficult to have been able to have made the diagnosis earlier because of, specifically, the problem with the negative biopsies in August 2020. However, Dr Flecknoe-Brown referred to other factors which lead to the diagnosis. He added that he did not know how easy it would have been to make the diagnosis in 2016-2017 but the low folate levels should have been investigated.
On balance, Dr Flecknoe-Brown was of the view that the diagnosis of coeliac disease would have been available following the 2015 low folate level results. Dr Vickers took a different view, and was of the opinion that there was not all the evidence until September 2020 when the plaintiff had the last set of biopsies and he went on a gluten-free diet. He said that if the general practitioner had sent the plaintiff to a gastroenterologist who had done small bowel biopsies as in August 2020, that the gastroenterologist would likely have got back two normal biopsy results with a confused presentation.
In relation to the likely cause of the plaintiff's serum folate and B12 results in January and December 2015, Dr Flecknoe-Brown was of the opinion that the likely cause was attributable to coeliac disease whereas Dr Vickers was of the opinion that the likely cause was attributable to nutritional deficiency due to the plaintiff's lifestyle. Dr Flecknoe-Brown said that the folate level was "strikingly abnormal". Dr Vickers noted that while the B12 level was a little low and the folate levels could be consistent with severe coeliac disease, that should have been seen on a ileal biopsy whereas the colonoscopies in January 2017 and in April 2018 had included ileal biopsies which were reported as "absolutely normal". He also referred to the fact that there was no evidence of severe coeliac disease in August 2020 on the biopsies taken.
Dr Vickers also relied on the red blood cells serum folate level which provided an indication of the folate level over the three months lifetime of the red cells. The red blood cell folate levels were normal or near normal on testing and an assumption of severe coeliac disease could not be made. On that basis, the plaintiff's low serum folate levels were, in Dr Vickers' view, probably nutritional due to the plaintiff being an old man living by himself with poor nutrition. Dr Flecknoe-Brown indicated that in his view serum folate levels were more important than red cell folate levels. The low serum folate levels on two occasions were dramatically low and should have been investigated including by a gastroenterological evaluation. A diagnosis of coeliac disease could have been made in 2015 in Dr Flecknoe-Brown's opinion.
Both experts agreed that if the plaintiff was referred for coeliac serology testing following December 2015, that, on the balance of probabilities, the result would have been positive for coeliac antibodies. However, this result would have required interpretation. Dr Vickers said a lot of people have weak positive antibodies as they get older which was also normal. The plaintiff had had radiotherapy which can itself raise the level of antibodies. Dr Flecknoe-Brown said that targeted radiotherapy as the plaintiff had would probably not cause antibodies by itself. Dr Vickers said that in clinical practice he did see patients with radiation enteritis in men who have had targeted prostatic radiotherapy and also in women for cervical cancer and anal cancer.
The experts were asked to outline the steps required to be taken to obtain a reliable biopsy result for the investigation and diagnosis of coeliac disease. In essence, the experts agreed. Dr Vickers said that one had to do an endoscopy and a biopsy under the most reliable conditions which included not asking patients to stop eating gluten and to ensure that when the biopsies were taken the patient does not have any symptoms of gastroenteritis. The patient should be in a well state. Normally five biopsies would be taken by the gastroenterologist where there was a very strong suspicion of coeliac disease. However, a very careful endoscopic visual inspection of the duodenum may result in the gastroenterologist taking targeted biopsies of a concerning area. In August and September 2020, the plaintiff was extremely sick from urosepsis and therefore a good visual inspection of the duodenum was absolutely essential and, according to Dr Vickers, a targeted taking of a couple of biopsies was appropriate. Dr Vickers was of the view that two selected targeted biopsies in someone who was very sick would be reliable.
Dr Flecknoe-Brown indicated that he would like to have seen four biopsies and would certainly expect to see reports of biopsies from multiple parts of the duodenum and small bowel or as far down as the endoscopist can get.
Dr Flecknoe-Brown was of the view that the sampling of two biopsies for the histopathology report dated 13 August 2020 was not sufficient. In his view, the taking of only two samples for biopsy missed the spots where the coeliac would have been diagnosable. Dr Vickers was of the opinion that the sampling was sufficient and appears to have been targeted in the context of the plaintiff being acutely sick and unwell. Dr Vickers noted that the biopsies were taken by gastroenterologists at Wagga Base Hospital and assumed that they looked very carefully when they took the two biopsies. In his view, the two targeted biopsies were absolutely normal, and in particular the characteristic finding in the biopsies was that the villi were normal. At the time, the plaintiff had a highly systemic inflammatory response going because of his illness. Dr Vickers was of the view that there was a system inflammatory response with zero evidence of coeliac disease on the biopsy with the plaintiff being sick. Dr Flecknoe-Brown agreed that that was the indication of the biopsy and accepted that the biopsy report was inconclusive. However, he was of the view that the gastroenterologist in the light of what occurred with the plaintiff later, missed the spots where the coeliac disease would have been diagnosable.
Dr Vickers did not agree with this because the two biopsies were targeted.
Dr Flecknoe-Brown was of the view that the two biopsies were properly examined and the report on the biopsy samples was reliable. However, he was of the opinion that the first biopsies that were provided were insufficient. Dr Vickers stated that undertaking a biopsy involved taking sufficient samples at the most opportune time to get an accurate diagnosis. In the first biopsies of 13 August 2020, there was evidence of an acute duodenitis. The plaintiff remained unwell and on 4 September 2020 there were five biopsies showing reduced villi and raised lymphocytes. In his view, that was consistent with an unresolved acute duodenitis progressing into chronic duodenitis. The second biopsy should have been taken several weeks after the patient was well to be reliable. Accordingly, the 4 September 2020 biopsies could be "easily interpreted" as the manifestation of an acute duodenitis. Dr Vickers, in particular, was of the opinion that one could not go from two normal biopsies in August to five abnormal biopsies three weeks later in September 2020 if the plaintiff had severe coeliac disease (paragraph 8.6).
In relation to the biopsies performed on 4 September 2020 at Wagga Base Hospital, Dr Flecknoe-Brown was of the view that the biopsy results gave a "pretty good description of coeliac disease on the biopsy" and confirmed that the first two biopsies were thus inadequate (paragraph 9.2). Dr Vickers referred to the fact the second biopsies were only three weeks after the first biopsies and this was inconsistent with severe coeliac disease, having regard to the plaintiff having gone from two normal biopsies to five abnormal biopsies in three weeks. The results were consistent with acute duodenitis (paragraph 9.4). However, he accepted that the five biopsies could not exclude coeliac disease although no diagnosis could be given on the results on 4 September 2020 in the context (paragraphs 9.5-9.6). Dr Vickers also was of the view that if coeliac disease was a possibility on the second occasion according to the Wagga Base Hospital, medical practitioners would likely have ordered antibody levels for gluten which they did not. This indicated that the gastroenterologist at Wagga Base Hospital was not convinced about coeliac disease (paragraph 9.8). Dr Flecknoe-Brown noted that coeliac antibodies testing was awaited.
Dr Flecknoe-Brown was of the view that the plaintiff had active coeliac disease from as early as 2015 when there were the "grossly abnormal" folate level test results. For five years, the plaintiff was malnourished and was progressively losing a substantial amount of weight. In cross-examination, Dr Flecknoe-Brown altered his opinions having regard to altered assumptions about the plaintiff's weight levels put to him by counsel for the defendant.
Dr Vickers was of the opinion that coeliac disease can have a "very long spectrum". He was of the view that a delay in diagnosis would have contributed to a small proportion of the plaintiff's metabolic bone disease but the major proportion would have been the drugs used for prostate cancer. Dr Vickers accepted that coeliac disease may have contributed to some of the plaintiff's weight loss but there could have been other medical and social reasons. Dr Vickers was of the opinion that the best evidence was that the plaintiff actually developed manifestations of coeliac disease in hindsight after the second set of biopsies in September 2020. Dr Flecknoe-Brown referred to the recurrent episodes of diarrhoea with strikingly low folate levels leading, in his view, with an iron deficiency to a diagnosis of coeliac disease active in 2015.
In relation to the plaintiff's increased risks as a result of the delayed diagnosis of coeliac disease, Dr Flecknoe-Brown was of the view that the plaintiff had a definite lifelong risk of continuing fragile bones. The androgen deprivation therapy which the plaintiff had following his radiation was dealt with by Prolia injections. Autonomic dysfunction also developed while the plaintiff had undiagnosed coeliac disease. He noted the plaintiff's falls in this period and was of the view that they were linked to the coeliac disease which he confirmed in cross-examination. He also noted an increased risk of lymphoma which was small.
Dr Vickers accepted that a delayed diagnosis of coeliac disease could lead to ongoing metabolic bone disease and risk of fracture, but he was of the view that the dominant contributor would have been the plaintiff's androgen deprivation therapy and that coeliac disease was only a minor component. He was also doubtful about Dr Flecknoe-Brown's opinion about the autonomic disease. Dr Flecknoe-Brown was of the view that the radiation therapy was, contrary to Dr Vickers, only a minor factor.
Both experts agreed that the plaintiff needed ongoing treatment to stabilise his metabolic bone disease with surveillance in relation to the possibility of lymphoma (paragraphs 12.1 and 12.6).
More detailed questions were asked by the defendant in relation to the August and September 2020 biopsies. Both experts were of the view that the 13 August 2020 histopathology report following the August 2020 biopsies was not consistent with a diagnosis of coeliac disease. Dr Vickers said that in order to make a diagnosis of coeliac disease on histology, a blunting or atrophy of the villi was required which was not present. Other matters were also not present. He accepted that the report on 13 August 2020 was inconsistent with coeliac disease. Both experts were of the view that the report dated 9 September 2020 was consistent with the diagnosis of coeliac disease, but the answers were qualified. Dr Vickers said the report was consistent with coeliac disease but equally the findings were consistent with an acute duodenitis in a resolving form (paragraphs 2.1-2.2). Dr Flecknoe-Brown was of the view that the report fairly strongly indicated coeliac disease. Duodenitis was only mentioned as a possibility. He found the report compellingly in favour of coeliac disease.
In relation to the change in findings between August 2020 and September 2020, Dr Vickers was of the view that the findings are typically what one would see with acute toxic enteritis being an acute toxic inflammation of the duodenum. That would be consistent with a change over only a few weeks. Dr Flecknoe-Brown was of the view that the difference showed that the samples provided in the August 2020 biopsy were inadequate for diagnosis but the later samples were more thorough (paragraph 3.2).
In relation to latent coeliac disease, Dr Vickers said this was where a patient had the genetic susceptibility to coeliac disease. That person had symptoms which were usually non-specific. In his view, the histopathology in the August 2020 biopsies did not confirm latent coeliac disease. In hindsight, Dr Vickers was of the view that the plaintiff probably had latent coeliac disease from birth. Dr Flecknoe-Brown in summary agreed with Dr Vickers' views.
In relation to the likely trigger for the plaintiff's latent coeliac disease, Dr Vickers pointed to something occurring just prior to August 2020 which made the plaintiff come to hospital. He referred to various possibilities including environmental factors or viral gastroenterology. Another possibility was a general response to severe chronic inflammation. Dr Flecknoe-Brown says there are a range of possibilities which have not been properly explored in the science. In his view, it was probably triggered before 2015 at some time but not for a long time prior to that (paragraph 5.5).
In relation to a diagnosis of coeliac disease, Dr Flecknoe-Brown was of the view that a diagnosis could have been made by a gastroenterologist in 2016. Dr Vickers was of the view that a presumptive diagnosis could have been made by a gastroenterologist in September or December 2020. Dr Vickers points to the normal biopsies obtained in August 2020 and was of the view that biopsies taken at any other earlier time would have been normal. The biopsies in September 2020 and the antibodies thereafter were sufficient to make a highly presumptive diagnosis of coeliac disease. However, he accepted that if negative biopsies were obtained in 2015 that a gastroenterologist would possibly have suggested measuring antibody levels.
Dr Flecknoe-Brown was of the view that the patient would only be referred to a gastroenterologist when antibodies were reported as being abnormal. The plaintiff's weight loss was also relevant. Dr Vickers was of the view that the dominant cause for weight loss was chronic infection through the severe chronic urosepsis which the plaintiff had in 2020. Dr Flecknoe-Brown again referred to the low folate levels reported in January and December 2015.

Medical records and consultation notes

There were voluminous medical records consisting of thousands of pages tendered in the matter. I have already given a summary outline of the background facts where I refer to some of the plaintiff's more significant consultations with Dr Yaramati and various specialists.
It is unnecessary to set out in great detail the voluminous medical records in evidence. It would also be unhelpful for the purpose of determination of the central issues. However, some reference to the more significant medical records is required.
It appears that the plaintiff completed a new patient information form at the Urana Medical Centre where Dr Yaramati had his consultation rooms on 19 January 2015. The plaintiff's weight was recorded by him as 56kg in the form. He is recorded as having no current medications (DTB 2/132-135).
The following summary sets out some of the more significant medical notes and records relating to consultations and reports: 1. Dr Yaramati - 23 January 2015: the plaintiff is recorded as a new patient complaining of dysuria, an increased frequency of urination and symptoms of difficulty in emptying his bladder. The plaintiff is recorded as indicating no abdominal pain with his abdomen being soft with nil abnormality detected ("NAD"). The diagnosis was a urinary tract infection for which tablets were prescribed. A urine sample was sent to pathology for testing (DTB 2/136-137). 2. Dr Yaramati - 30 January 2015: the plaintiff came in for review and stated that his dysuria symptoms had resolved but he had persistent problems with urine stream and incomplete emptying of the bladder. Numerous blood samples were taken for testing (DTB 2/138). 3. Upon testing of the samples taken on 30 January 2015, the pathologist reported as follows: "Active B12 = L32 pmol/L (>35) … Vitamin B12 and Folate Vitamin B12 = 199 pmol/L (135 -650) Serum Folate = L 1.9nmol/L (>7.0) Red Cell Folate = 258 nmol/L (>150) Comment on Lab ID 255880465 … Suggest specimen re-collection to confirm low serum folate level for patients at risk of folate deficiency with conditions such as macrocytic anaemia, malabsorption or coeliac disease. If serum folate levels are persistently low, then red cell folate may be indicated." (DTB 2/291-295). 1. Dr Yaramati - 6 February 2015: the plaintiff attended for review. It is recorded in the notes by Dr Yaramati that the plaintiff had ongoing symptoms of urinary outflow obstruction and elevated PSA levels. Dr Yaramati arranged an ultrasound and collected a urine sample and provided a referral to Dr Lewin, urologist (DTB 2/139). 2. Dr Yaramati - 10 February 2015: the plaintiff is recorded as indicating no change in his symptoms. It was noted that the patient had a follow-up appointment with Dr Lewin, urologist, on 11 March 2015. Various tablets were prescribed (DTB 2/140). 3. Dr Yaramati - The plaintiff saw Dr Yaramati on various occasions in February and March 2015 in relation to his urinary problems. 4. Dr Lewin and Dr Yaramati - 11 March 2015 and 24 March 2015 - Dr Jonathan Lewin reviews the plaintiff in relation to his urinary issues. Dr Lewin reported to Dr Yaramati on 24 March 2015 that the plaintiff's prostate felt grossly abnormal and that he "certainly has high-grade metastatic prostate cancer" (DTB 2/564). 5. Dr Yaramati - 27 April 2015: the plaintiff is recorded as referring to his urinary tract infection and urinary symptoms. The plaintiff is reported to have a soft abdomen with no abnormality detected. (DTB 2/145). 6. Dr Yaramati: the plaintiff saw Dr Yaramati on various dates in May and June 2015. On 19 May 2015, he is recorded as feeling well with his urine symptoms resolved (DTB 2/148). However, later symptoms were recorded for urinary problems at a consultation on 11 June 2015 (DTB 2/149). On 18 June 2015, the plaintiff was recorded as feeling well (DTB 2/150). 7. Dr Lewin - 18 June 2015: letter from Dr Lewin to Dr Yaramati in which Dr Lewin indicated that he had recommended pelvic radiation with some targeted radiation to the plaintiff's sacrum and prostate. Dr Lewin referred the plaintiff to Dr Ong, oncologist (DTB 2/568). 8. Dr E Ong - 29 June 2015: letter to Dr Lewin copied to Dr Yaramati. Dr Ong refers to his history, examination and proposed treatment of the plaintiff. The plaintiff is recorded as having a normal bowel function with no per rectal bleeding. Examination revealed a markedly enlarged prostate (DTB 2/570). Stage IV prostate cancer was diagnosed. 9. Dr Yaramati - 1 December 2015: the plaintiff is recorded as finishing his radiation therapy with a follow-up with Dr Ong in February 2016. Increased frequency of urination was noted. The abdomen was recorded as soft with no abnormality detected. On 18 December 2015 in a consultation, Dr Yaramati has recorded the plaintiff as stating that he was feeling well (DTB 2/152). 10. On 17 December 2015 Dr Yaramati took blood samples and requested pathology. The pathologist reported as follows: "Active B12 = L 32 pmol/L (>35) … Vitamin B12 and Folate S.Fol… L 3.5nmol/L (>7.0) RBC Fol… 215nmol/L (>150) Comments on Collection 17/12/15… Suggest specimen re-collection to confirm low serum folate level for patients at risk of folate deficiency with condition such as macrocytic anaemia, malabsorption or coeliac disease. If serum folate levels are persistently low, then red cell folate may be indicated. In some patients megaloblastic change may occur with low normal levels of RBC Folate. Suggest follow up according to clinical context… Serum folate will be performed as an initial test with red cell folate performed additionally, if required, when the initial serum folate is low." (DTB 2/337, 338). 1. On 24 December 2015 Dr Yaramati records discussing the blood results with the plaintiff and recommending a B12 injection every three months with folate supplements (DTB 2/154). This was for the low B12 and low serum folate reported. 2. Dr Yaramati - 31 December 2015: a B12 injection was administered. 3. Dr Yaramati - 2 February 2016: the plaintiff is recorded as gaining minimal weight but was otherwise well. His body weight was recorded as being measured at 62kg (DTB 2/157). 4. Dr Ong - 16 February 2016 letter from Dr Ong to Dr Lewin copied to Dr Yaramati. Dr Ong refers to the plaintiff completing his radiotherapy and states that the plaintiff has "slightly erratic bowel function using his bowel one-four times" (DTB 2/574). 5. Dr Yaramati - 22 March 2016: the plaintiff is recorded as stating that overall he was going well. He had his B12 injection and his cancer drug injection (Triptorelin) (DTB 2/158). 6. Dr Yaramati - 22 June 2016: the plaintiff is recorded as coming in for review and stated that overall he was going well. He had his cancer drug injection and a B12 injection (DTB 2/160). 7. Dr Yaramati - 24 June 2016: blood samples were taken for pathology. These were reported as being normal for B12 and folate on 28 June 2016 by Dr Yaramati (DTB 2/162). 8. Dr Yaramati - 12 July 2016: the plaintiff is reported as having diarrhoea for the last two days after working with a pump in dirty water (the plaintiff denied saying this but had no recollection of the consultation. I accept that he said this or something like it to Dr Yaramati who appeared to be overall a careful note taker). There were a number of episodes of runny diarrhoea with no abdominal pain with the abdomen being soft with no tenderness. Gastrolite sachets were recommended to the plaintiff (DTB 2/163). 9. Dr Yaramati - 20 September 2016: the notes record the plaintiff coming in for his regular Triptorelin injection and that he had weight gain. An increasing shortness of breath over a period of two months was noted, as was hypertension. An examination of the plaintiff's abdomen showed that it was soft with no abnormality detected. The plaintiff was commenced on Coversyl. An x-ray of the plaintiff's chest noted no abnormalities (DTB 2/164). 10. Dr Yaramati - 18 October 2016: it is recorded that the plaintiff was well and asymptomatic. Blood samples were collected (DTB 2/165). 11. Drs Ong/Schmidt - 21 November 2016: Dr Ong referred the plaintiff to Dr Schmidt due to painless per rectal bleeding following his cancer radiation treatment. The plaintiff is recorded as denying any weight loss or significant change in bowel habit. On examination the plaintiff was recorded as being of normal weight with a soft and non-tender abdomen. A colonoscopy was arranged (DTB 2/575). 12. Dr Yaramati - 24 November 2016: it is recorded that the plaintiff was overall feeling well with a weight of 67.9kg and with no abnormality detected in his abdomen. The impression was recorded of weight gain due to hormone therapy (DTB 2/166). 13. Dr Yaramati - December 2016 consultations: the plaintiff saw Dr Yaramati on a number of occasions in December 2016. On 21 December 2016 blood samples were taken for pathology with the plaintiff having Triptorelin and B12 injections (DTB 2/169). At a consultation on 28 December 2016 the plaintiff's blood results were recorded as being discussed with him with his B12 and folate levels being normal. He was advised to continue the same medications and come in for a regular monthly check-up (DTB 2/170). 14. Dr Yaramati - 13 January 2017: Dr Yaramati is recorded as sending a letter to Dr Lewin, the urologist, to update him on an episode of haematuria given the plaintiff's cancer history (DTB 2/172). 15. Dr Schmidt - 18 January 2017: the plaintiff had a colonoscopy with mild patchy rectal inflammation noted (PTB page 625). 16. Drs Yaramati, Lewin and Ong - January-February 2017: there was correspondence between the various doctors. A letter to Dr Lewin from Dr Ong dated 13 February 2017 noted occasional haematuria in the plaintiff but with no major bleeding and with the plaintiff using his bowels once to twice a day "usually loose". It was also noted that the plaintiff was coping with "the hormonal manipulation" with supplements to prevent osteoporosis: DTB 2/578. 17. Dr Yaramati - 20 March 2017: it is recorded that the plaintiff had a cystoscopy and a colonoscopy with findings of radiation cystitis and proctitis but with no further haematuria. B12 and Triptorelin injections were given (DTB 2/174). 18. Dr Yaramati - 15 May 2017: the plaintiff reported pins and needles sensations in his hands with a recent weight gain of 20kg. The impression of Dr Yaramati was carpal tunnel syndrome and the plaintiff was referred to Dr Hatfield, orthopaedic surgeon, for management. He was also recorded as being advised about weight reduction (DTB 2/176). 19. 22 May 2017 - Drs Ong and Lewin copied to Dr Yaramati: Dr Ong sent a letter to Dr Lewin indicating that the plaintiff was clinically well but with occasional per rectum bleeding from his bowel. The plaintiff is recorded as informing Dr Ong that his bowel has been loose lately with use of up to three times per day. As to the hormonal therapy, the plaintiff reported truncal weight gain of 22kg with the plaintiff using vitamin D and calcium supplements to prevent osteoporosis. Dr Ong expressed the view that the plaintiff needed a break from his hormonal manipulation (DTB 2/580). Soon thereafter, the plaintiff was reviewed by Dr Hatfield, orthopaedic surgeon, who recommended carpal tunnel syndrome surgery. 20. Dr Yaramati - June/July 2017: the plaintiff was seen by Dr Yaramati on a number of occasions in June/July 2017. On 28 June 2017 blood specimens were taken for testing. The 5 July 2017 notes record that the blood tests were normal with the plaintiff complaining of per rectum bleeding without pain with radiation induced proctitis. Haemorrhoids were noted and there was a B12 injection (DTB 2/178). The consultation notes for 28 July 2017 record the plaintiff as weighing 72kg. 21. Dr Yaramati - 16 August 2017: the plaintiff recorded problems with urinary flow but with a soft abdomen. Advice was given to see Dr Lewin (DTB 2/178). The plaintiff also saw Dr Yaramati on various occasions in September 2017 and October 2017; 22. Dr Yaramati - 11 October 2017: the notes record the plaintiff complaining of diarrhoea for the last three weeks of an intermittent nature with no constipation. The plaintiff was advised to take Gastro-Stop tablets for two weeks. The doctor collected a stool sample for testing (DTB 2/187). The stool testing indicated no infections. 23. Dr Yaramati - 18 October 2017: the plaintiff is recorded as indicating that his diarrhoea resolved with Gastro-Stop after three days and that he was now well and his bowels had settled (DTB 2/188). Lower urinary tract symptoms resulted in a referral to Dr Lewin. 24. Dr Yaramati - 24 November 2017: it is recorded in the notes that the plaintiff came in for his regular prescriptions and no acute concerns were voiced (DTB 2/190). 25. Dr Yaramati - 11 January 2018: the plaintiff is recorded as attending for his B12 injection in the left arm (DTB 2/191); 26. Dr Ong to Dr Yaramati copied to Dr Lewin - 12 February 2018: Dr Ong indicated in a letter that he had reviewed Mr Curran on 12 February 2018 and the plaintiff was well with his energy back to normal since he stopped his androgen deprivation therapy. In terms of the plaintiff's bowel function, Dr Ong recorded him using his bowel once to twice a day with a soft stool and no further diarrhoea but had intermittent mild per rectum bleeding. The plaintiff is recorded as having reasonably good urinary function and having a weight of 65kg with a normal weight of 52kg to 54kg. Dr Ong referred him back to Dr Schmidt for consideration of a repeat colonoscopy (DTB 2/587). 27. The plaintiff saw Dr Yaramati on various occasions in February 2018. 28. On 13 March 2018 the plaintiff saw Dr Schmidt. Dr Schmidt forwarded a letter to Dr Ong, copied to Dr Yaramati, in relation to the review. The history is recorded as Mr Curran complaining of intermittent per rectal bleeding associated with diarrhoea with blood in the urine especially in the morning. The plaintiff's weight was indicated as being stable at 60kg with the plaintiff appearing thin but with his abdomen being soft and non-tender. Dr Schmidt indicated that she planned to do a colonoscopy (DTB 2/589). 29. Dr Yaramati - 16 March 2018: the consultation notes indicate that the plaintiff came in for regular prescriptions and no acute concerns were voiced (DTB 2/195). 30. 28 March 2018: the plaintiff underwent a colonoscopy with Dr Schmidt with a colonic polyp detected and snared. Mild proctitis was also noted (PTB/2 page 622). 31. Dr Yaramati - 13 April 2018: the plaintiff is recorded as coming in for regular check-up and prescriptions with no acute concerns and overall feeling well. The abdomen is recorded as having nil abnormality detected with the impression to Dr Yaramati being that the patient was stable (DTB 2/196). 32. Dr Yaramati - 17 April 2018: the notes record a chronic disease management plan being prepared with the plaintiff's consent. A further consultation was recorded later in the day with the examination noting a weight of 65.4kg (DTB 2/197-8). 33. Dr Yaramati - April-July 2018: there were various consultations with the plaintiff having blood tests and a B12 injection with no concerns identified (DTB 2/199-205). 34. Dr Yaramati - 31 August 2018: the notes record the plaintiff complaining of "episodic diarrhoea stool 3 to 4 day and stopping for 4 to 5 days, recurring regularly" with no abdominal pain. The plaintiff's abdomen was recorded as being soft with nil abnormality detected. Metamucil was recommended with a review in two weeks' time (DTB 2/206). 35. Dr Yaramati - 7 September 2018: one week after the previous consultation, the plaintiff attended for what was recorded as his regular check-up and to obtain prescriptions. The notes state "no acute concerns for patient … Overall feeling well". The abdomen was reported as having nil abnormality detected with the impression being that the plaintiff was stable. There is no record of diarrhoea (DTB 2/207). 36. Dr Yaramati - 10 October 2018: on examination the plaintiff is recorded as weighing 62.4kg with a request for a bone density scan due to the plaintiff being at risk of osteoporosis (DTB 2/208). 37. Dr Schmidt - 29 October 2018: the plaintiff had a follow-up colonoscopy. Minor internal haemorrhoids were noted but with no recurrent polyps (DTB 2/595). 38. Dr Yaramati - 31 October 2018: the plaintiff's weight was recorded as 63.5kg (DTB 2/210). 39. Mr Gallo, dietician - 7 November 2018: the plaintiff was recorded as having regular bowels with no other issues reported (DTB 2/211). 40. Dr Yaramati - 23 November 2018: the test results indicated that the plaintiff had osteoporosis and he was commenced on calcium and vitamin D tablets with six monthly Prolia injections (DTB 2/210). 41. Dr Yaramati - 21 December 2018: the plaintiff is recorded as coming in for regular check-up and prescriptions and expressing no acute concerns and overall feeling well. On examination the abdomen had nil abnormality detected and the impression was stable. 42. Wagga Base Hospital - 4 January 2019 to 6 January 2019: the plaintiff was admitted to hospital with a history of right-sided flank pain and episodes of runny stool and vomiting. The plaintiff underwent a cystoscopy and ureteric stent and was prescribed antibiotics. His weight was indicated as 65kg (DTB 3/737). The principal diagnosis was obstructing renal calculi, see also consultation notes (DTB 2/214). There was a further admission on 22 January 2019 with right-sided lower abdominal pain radiating to the groin. A urinary tract infection was detected. The plaintiff was referred to Professor Mackenzie, physician, following breathlessness and deranged liver function tests with urinary calculus (DTB 3/865). The plaintiff was also reported as having hyperkalaemia (high potassium). On 29 January 2019, the plaintiff visited Dr Yaramati and referred to his hospital admission (DTB 2/215). It is noted that Gastro-Stop capsules were ceased on 30 January 2019. In a consultation, Dr Yaramati collected blood for an electrolyte check. A copy was ordered to Professor Mackenzie. At a consultation on 31 January 2019, Dr Yaramati discussed the blood results and advised the plaintiff as recorded to take Vitamin D tablets daily (DTB 2/217). In a lengthy follow-up consultation in relation to the plaintiff feeling low for many years on 5 February 2019, it is recorded that the plaintiff had no weight gain or weight loss (DTB 2/218). On 6 February 2019, blood samples were collected by Dr Yaramati for follow-up with Dr Mackenzie (DTB 2/221). Professor Mackenzie saw the plaintiff on 15 March 2019 to follow-up on his liver function test abnormalities with an ultrasound showing fatty liver but no other abnormality (DTB 2/602). 43. Dr Yaramati - 4 March 2019: the plaintiff reported a fall in the dark and complained of right-sided chest pain with no abdominal pain. A CT of the chest and abdomen was ordered which later reported rib fractures. On 12 March 2019, the plaintiff reported to Dr Yaramati that he was pain free with Tramadol (DTB 2/225). 44. Dr Yaramati - 27 March 2019: the notes record the plaintiff coming in for review and indicating that he had been to Dr Mackenzie who was happy with his progress and had no concerns (DTB 2/229). 45. Dr Yaramati - 18 April 2019: the plaintiff is recorded as attending for his regular check-up and prescriptions with no acute concerns and overall feeling well. On examination his abdomen had nil abnormality detected as recorded with the impression being that the plaintiff was stable (DTB 2/230). 46. Dr Yaramati - 7 May 2019: the plaintiff reported another fall in the garden following tripping. On examination the plaintiff was recorded as being well systemically with no tenderness in the left upper quadrant of the abdomen. He was referred to Wagga Base Hospital. The plaintiff attended the next day. 47. Dr Yaramati - 5 June 2019: the plaintiff attended for a Prolia injection. 48. Dr Yaramati - 7 June 2019: the plaintiff presented to Dr Yaramati with numerous complaints including constipation followed by diarrhoea for a few weeks. The plaintiff said he was taking regular Metamucil and had no abdominal pain. On examination the abdomen was soft with no tenderness. Dr Yaramati recommended Metamucil and advised for there to be a CT scan if there was no improvement. A B12 injection and a Prolia injection were also administered. 49. Mr Gallo, dietician - 18 June 2019: the plaintiff was referred for nutritional management and advice with a history of high cholesterol and prostate cancer. His weight was recorded as 56kg with his bowels fluctuating with loose stools and constipation. Advice was given as to diet and exercise. 50. Dr Yaramati - 22 July 2019: the plaintiff came in for a general review and to obtain prescriptions. He is recorded as stating that he had chronic diarrhoea needing regular medications from over the counter. Questran-Lite sachets were advised. 51. Dr Yaramati - On 29 July 2019 the plaintiff presented for blood tests. Two days later on 31 July 2019 the plaintiff visited to notify that he had hypocalcaemia and hypophosphatemia. The plaintiff advised he was taking calcium and phosphate. On 5 August 2019, his blood tests were discussed and he was referred to Dr Ong, Dr Lewin and Dr Mackenzie for follow-up (DTB 2/235-238). There is no mention in the entries for 22 July 2019, 29 July 2019 or 31 July 2019 of continuing diarrhoea problems. 52. Dr Yaramati - 5 August 2019: the notes record Dr Yaramati's discussing the blood results with the plaintiff and creating referral letters to Dr Ong, Dr Lewin and Dr Mackenzie (DTB 2/238). 53. Dr Ong - 7 August 2019: Dr Ong reported that the plaintiff was well and that his weight had normalised back to 55kg while still having intermittent per rectal bleeding (PTB page 627); 54. 9 August 2019: plaintiff sees Professor Mackenzie in relation to sleep issues - see letter to Dr Yaramati (DTB 2/604). 55. Dr Schmidt - 13 August 2019: plaintiff sees Dr Schmidt on referral from Dr Ong. The letter refers to per rectal bleeding over the last three months including almost daily bleeding with bowel motions and having alternating diarrhoea and constipation. A history of colonic polyps was noted. On clinical presentation the plaintiff is recorded as being thin but with a soft and non-tender abdomen. A repeat colonoscopy was arranged by Dr Schmidt (DTB 2/606). 56. Dr Yaramati - 13 August 2019: the plaintiff came in for review and stated that he was feeling well with observations recorded as normal (DTB 2/239). 57. Dr Yaramati: the plaintiff had a number of consultations with Dr Yaramati in August and September 2019. Blood samples were collected for pathology on 23 August 2019 and discussed with the plaintiff on 26 August 2019. The calcium was mildly low with an abnormal liver function test consistent with a fatty liver. The plaintiff is recorded as being advised in relation to weight reduction and exercise with a low-fat diet. A B12 injection was administered according to the records on 10 September 2019 with the blood test results discussed on 18 September 2019. These showed a Vitamin D deficiency but other blood tests being normal. On 19 September 2019, a chronic disease management plan was prepared with the plaintiff's weight being recorded as 57.8kg. A mini mental state examination was undertaken which showed the plaintiff was normal (according to Dr Yaramati's oral evidence) with no significant cognitive impairment. In a letter dated 19 September 2019, Professor Mackenzie provides a detailed background to Mr Curran including his hospital admissions earlier in the year. Professor Mackenzie described the plaintiff as "not unwell looking. He had an appropriate and reactive affect. His weight was 57kg" (DTB 2/240-246 and 609). 58. 23 October 2019: Dr Schmidt performed a colonoscopy and rubber band ligation of haemorrhoids. Diverticulitis and second-degree internal haemorrhoids were found on the colonoscopy (DTB 2/500). 59. Dr Schmidt - 3 December 2019: letter to Dr Yaramati. Upon review, Dr Schmidt stated that the plaintiff had made a good recovery and was pain free with no further per rectal bleeding. On examination his abdomen was soft and non-tender. 60. Dr Yaramati - 17 December 2019: the plaintiff came in for a regular check-up and prescriptions and did not have any acute concerns and was reported as overall feeling well. The impression given was stable and systemically well (DTB 2/248). The plaintiff had a consultation on 19 December 2019 at which a B12 injection was administered (DTB 2/249). 61. In the first three months of 2020, the plaintiff attended Dr Yaramati for his regular injections and blood testing. He had a consultation on 20 February 2020. Dr Yaramati records the plaintiff as stating that he was happy as Dr Ong had informed him that his prostate cancer was cured and he was now on a yearly review plan (DTB 2/250-3). 62. In the second quarter of 2020, the plaintiff had regular consultations with Dr Yaramati including with blood samples being taken on 10 June 2020. The plaintiff reported that he had no acute concerns and was overall feeling well (DTB 2/254-6). 63. Dr Yaramati - 23 July 2020: the plaintiff is recorded as attending for his Prolia injection for osteoporosis and also referring to intermittent symptoms of diarrhoea. Dr Yaramati increased the recommended dose of Questran (DTB 2/258). 64. Wagga Base Hospital admission: On 8 August 2020, the plaintiff was transferred by ambulance from his home to the Urana Multi-Purpose Service Clinic where he was seen by Dr Yaramati. This was following a fall and an injury reported to his lower back. No abdominal pain, diarrhoea or vomiting were recorded by Mr Curran to the defendant. Dr Yaramati discussed Mr Curran's admission with Wagga Base Hospital (DTB 2/644). The plaintiff was admitted to Wagga Base Hospital from 8 August 2020 until he discharged himself against advice on 17 August 2020 (DTB 2/648). The diagnosis was an electrolyte imbalance. The notes refer to the plaintiff presenting with fever, chronic diarrhoea (exacerbated recently) and long-standing shortness of breath (DTB 2/648). Under the heading "Chronic Diarrhoea" in the 17 August 2020 discharge referral it is stated that "Mr Curran has had 18 months of diarrhoea with increasing frequency over the past week. Noted to have 6 to 8 episodes per day, watery in content … coeliac serology in progress … gastroscopy under Dr Michael Payne demonstrated loss of villi in small bowel -? Coeliac disease; biopsies sent of gastroscopy/colonoscopy" (DTB 2/649). A colonoscopy had been performed on 13 August 2020 at the hospital which included a comment of no abnormality detected in the small bowel. Two biopsy specimens were taken. On 17 August 2020, Dr Yaramati is recorded as receiving a call from Wagga Base Hospital from an intern indicating that Mr Curran had decided to leave the hospital against medical advice and was being managed for various conditions including calcium deficiency, increased phosphate levels, urinary retention and electrolyte abnormality (DTB 2/259). Various experts said the plaintiff was suffering from urosepsis and was very unwell. In his oral evidence, Dr Yaramati denied being told by the plaintiff that he was having chronic diarrhoea for 18 months. There is no compelling reason to question this evidence in the light of the consultation notes and the cross-examination of the plaintiff and the defendant. There was a small bowel biopsy (collected on 13 August 2020) which was reported on 21 August 2020 as having normal villous morphology and mild chronic active inflammation with no evidence of infection or malignancy (DTB 5/1462-3). 1. On 29 August 2020, the plaintiff was brought to the Urana Multipurpose Service by ambulance with chest pain and was reviewed by Dr Yaramati. The plaintiff is reported as saying: "Has chronic diarrhoea, stated it is improved when compared with earlier … No abdominal pain … Recently self-discharged from Wagga Base Hospital 10 days ago". It was noted that the plaintiff had low blood pressure which improved with hydration. The plaintiff was admitted to Wagga Base Hospital (DTB 2/653). The discharge referral document following an admission at Wagga Base Hospital from 29 August 2020 to 7 September 2020 refers to the plaintiff presenting due to sudden onset of chest pain, fever and electrolyte disturbances. It records: "Biopsy from gastroscopy and colonoscopy in the previous admission showed chronic gastritis, small bowel mild chronic active inflammation.…Repeat gastroscopy and colonoscopy performed on 4 September 2020 revealed mild gastrointestinal bleeding from oesophageal ulceration, angiodysplasia and/or radiation proctitis. The histology result is awaited with interest to see if there is any evidence of coeliac disease and/or small bowel lymphoma" (DTB 2/657). It is noted that this document is stamped/recorded as being received by Dr Yaramati on 17 September 2020. There is an addendum report relating to a biopsy collected on 4 September 2020 which has a diagnosis of active chronic inflammation on the oesophageal biopsy, moderately severe chronic inflammation on the gastric biopsy and villous atrophy and inflammatory changes on the duodenal biopsy said to be compatible "inter alia with partially managed coeliac disease". It appears that five biopsy specimens were taken during the course of the colonoscopy. The addendum is noted as having been sent by fax to the Urana Medical Centre on 24 November 2021 (DTB 2/667). By this time, the plaintiff had not been a patient of Dr Yaramati for over year. Dr Yarramati said that despite follow-up by his practice, he did not receive these results until 2021. There was no evidence to the contrary. 2. The plaintiff saw Dr Yaramati on a number of occasions in September and October 2020. The notes for 15 September 2020 record: "Michael has been discharged from Wagga Base Hospital managed for anaemia and electrolyte abnormality had repeat gastroscopy & colonoscopy with findings of severe oesophagitis + vascular malformation lesion in small bowel, radiation proctitis" (DTB 2/260). Various deficiencies in the plaintiff's system are shown on blood tests which were discussed with the plaintiff on 17 September 2020 according to the notes, including low calcium, phosphorus and magnesium. There was also an abnormal liver function test. The plaintiff was advised to undertake an abdomen ultrasound. The ultrasound (report at DTB 2/557-8) indicated no evidence of liver metastasis or renal tract obstruction. On 20 October 2020, the plaintiff attended for his B12 injection and blood samples were taken for electrolyte check (DTB 2/264). A consultation on 21 October 2020 is recorded as showing that the plaintiff's electrolytes were improving (DTB 2/266). A chronic disease management plan was prepared at a consultation on 22 October 2020 with the plaintiff on examination weighing 51.1kg (DTB 2/267). The plaintiff last saw Dr Yaramati on 27 October 2020 (DTB 2/277). 3. On 15 December 2020, the plaintiff saw Dr Aileen Chan at Corowa Medical Centre, reporting recurrent episodes of diarrhoea and hypokalaemia requiring hospitalisation. Dr Chan ordered blood tests for coeliac disease and on 24 December 2020 the plaintiff was informed in relation to the confirmation of coeliac disease and was provided dietary advice (PTB page 223). Over the next few months, the plaintiff's weight increased and on 12 January 2021 he was reported as having no diarrhoea (PTB 223-4).

Oral evidence of the plaintiff

Oral evidence was given by the plaintiff, Mr Curran. After brief evidence in chief, he was extensively cross-examined by counsel for the defendant.
Mr Curran gave evidence in chief in relation to his background and the various injuries which he had whilst working in the horse racing industry including falls from horses, problems with his shoulders and, in due course, a bilateral hip replacement. He stated that in 2011 he had a resection procedure for his prostate: T23-24.
The plaintiff stated that he first saw the defendant, Dr Yaramati, in 2015. Dr Yaramati had a practice near where he lived: T24.49. The plaintiff asserted that he first went to see Dr Yaramati in 2015 because he was having problems with his "bowels and urine": T25.35 (no problems with his bowel is recorded in Dr Yaramati's notes in the first consultation). In particular, the plaintiff said he was having trouble urinating. The plaintiff could recall being prescribed antibiotics by Dr Yaramati but was not sure in relation to blood tests. The plaintiff could not recall discussing with Dr Yaramati issues arising from a blood test: T25.46-T26.5. However, the plaintiff recalled being referred to a specialist by Dr Yaramati for treatment for prostate cancer.
As stated above, the plaintiff appeared to have a fairly poor recollection of his consultations with Dr Yaramati and accepted that he did not recall whether Dr Yaramati performed any examinations on him in 2015: T26.33. He did recall receiving radiation therapy for his prostate cancer in 2015: T26.46. He could not recall when the radiation therapy ceased and in particular did not recall having a blood test performed by Dr Yaramati after the radiation therapy stopped: T27.14. Although Mr Curran had a vague recollection about discussing with Dr Yaramati vitamin deficiencies, his recollection appeared to be limited, although he accepted that he commenced having injections for vitamin deficiencies including taking folate supplements in December 2015.
The plaintiff gave evidence about having some bowel dysfunction including watery bowels in about December 2015 with diarrhoea last occurring many years before this. He said the diarrhoea was different to anything he had had before: T28. The plaintiff described his diarrhoea as different to before due to the "constant way it was happening … I just kept getting diarrhoea": T28.32. He said he told Dr Yaramati about his diarrhoea symptoms: T28.36. The plaintiff said that his diarrhoea only completely went away after he was diagnosed with coeliac disease in December 2020: T28.46.
The plaintiff gave evidence that between December 2015 and December 2020 he had frequent symptoms of diarrhoea for which Dr Yaramati gave him powders to take. He said they stopped diarrhoea for a while and he would then get constipation and a different prescription would be given to relieve the constipation and then the diarrhoea would start up again: T29.6. The plaintiff stated that his diarrhoea symptoms increased in the period 2015 to 2020: T29.26.
The plaintiff also said that as well as diarrhoea he started suffering weight loss, reduced energy and falls. The latter occurred two to three times per day sometimes. The plaintiff said he was also short of breath with limited energy. The plaintiff stated that his symptoms worsened from 2018 when he began to get pins and needles in his hands and legs and experienced a loss of balance. He asserted that in relation to injections for a B12 deficiency and a folate deficiency that the defendant Dr Yaramati did not advise him of the reason for the supplements: T31.7. He was also not advised by Dr Yaramati as to what was causing his various problems: T30.20.
After giving evidence that he did not recall ever being told that he had been diagnosed with osteoporosis, the plaintiff admitted that he did not have a good recollection of his consultations with Dr Yaramati in the period 2015 to 2020 as he was not well and was not himself: T30.33-.39. When questioned in relation to examinations by Dr Yaramati, the plaintiff appeared to have a very poor recollection: T31.42-T32.23. This included a lack of recollection of Dr Yaramati examining his abdomen in the 2015-2020 period.
The plaintiff gave evidence that prior to 2020 he ate all types of food and had no concerns as to what he ate. After he saw Dr Chan in 2020 and he got the diagnosis of coeliac disease, he altered his diet.
The plaintiff gave evidence about the position in 2020. He said his health was very poor with problems with urinating and with his bowels and he appeared to be "living on a diet of tablets": T33.30. He had similar health problems in 2019 with diarrhoea, then constipation, difficulties urinating and was losing weight with balance problems.
The plaintiff then gave evidence of his various symptoms in the period 2016 to 2020 which included diarrhoea, urine problems and not sleeping well. He said his conditions became worse over the years and he began to lose weight and he did not feel himself. By 2019 the weight loss was considerable and he believed his health was going backwards. By 2020 he said he thought he was "on the way out" and felt terrible with no energy: T35-T39.17. After his diagnosis with coeliac disease in 2020, the plaintiff gave evidence that he improved considerably and he was getting his balance back.
The plaintiff gave evidence that he obtained some help at home in the two years before he was diagnosed with coeliac disease as he was not feeling well and had poor balance: T39.39.
The plaintiff was then extensively cross-examined about his medical history and his consultations with Dr Yaramati.
In relation to his symptoms in 2015, the plaintiff said he had problems with his bowels including diarrhoea. He said that his symptoms were not as bad as later and he had diarrhoea on and off for a few days at a time. By this he meant more frequently than once a month. For this he said Dr Yaramati prescribed medication, but the plaintiff could not recall the detail of when the diarrhoea problems occurred: T41.33-T43.4. The plaintiff asserted that he "would have told" Dr Yaramati about the regular occurrences of diarrhoea in 2015 but was not sure it was on every occasion but claimed that he told him often: T43.30-.39. The plaintiff also described his urinary problems which he had in 2015 which included that he could not at times pass urine. He claimed that he could not recall experiencing urinary problems before 2015: T44.4. The plaintiff again asserted that he had no recollection of experiencing urinary problems before 2015: T45.15.
The plaintiff was then cross-examined about getting treatment in 2008 for ongoing problems with his urinary function. He gave evidence that he did not recall that, despite the notes from Dr Chan's practice establishing a number of consultations in relation to urinary tract infections and problems in 2008. The plaintiff also could not recall being referred to a specialist urologist, Dr Duncan, and having a catheter inserted by him. In particular, the plaintiff said he had no recollection of self-administering a catheter at this time: T45.17-T46.34.
The plaintiff was then cross-examined in detail in relation to his consultations with, in particular, Dr Yaramati, but also with specialists to whom Dr Yaramati referred the plaintiff, in the period from 2015 to 2020. The impression strongly given by the plaintiff in his cross-examination on these consultations was that he had little recollection of what was discussed in the consultations including with the defendant, Dr Yaramati, and the timing of treatment or procedures which he had. The plaintiff frequently gave answers that he did not recall the detail of consultations or what was said at particular consultations. The plaintiff did not even recall the lengthy admission to Wagga Base Hospital in August 2020 where the records indicate he was very unwell.
Despite these comments, Mr Curran did not appear to the Court to be anything other than honest in his answers. I gained the firm impression from his evidence that he had little specific recollection of his various consultations other than in very general terms or the timing of them. Further, where there is any difference on an issue, the consultation notes or correspondence of medical practitioners should be given great weight unless there is objective evidence to the contrary.
Mr Curran accepted that he changed his general practitioner from one in Corowa to Dr Yaramati in January 2015 (T51.15) and believed it was correct that he first consulted Dr Yaramati on 23 January 2015 in relation to problems with a urinary tract infection. Mr Curran gave the firm impression that he had little recollection of the detail of claimed watery bowel movements in 2015. He accepted that he had no large problems relating to watery bowel movements prior to December 2015: T52.1-.8. He also accepted that if he had had watery bowel movements prior to December 2015 he would have told Dr Yaramati of that. The plaintiff agreed that he saw Dr Yaramati more than 25 times in 2015 and he assisted him in managing his prostate cancer diagnosis. Mr Curran accepted that if the medical records suggested he had various tests that he must have undergone them in 2015. He did not recall the detail of having B12 injections and folate supplements: T52.9.
Despite Dr Lewin being the plaintiff's urologist who diagnosed his prostate cancer according to the records, the plaintiff surprisingly did not recall going to see Dr Lewin: T53. However, Mr Curran accepted that he was referred to a Dr Ong, oncologist, in April 2015 who saw him for the purposes of radiotherapy for his cancer. He agreed that throughout 2015 he regularly consulted with Dr Yaramati who was monitoring his general health: T54.10. The plaintiff agreed that throughout 2015 he attended Dr Yaramati quite frequently in relation to urinary symptoms: T54.29.
The plaintiff did not recall informing Dr Ong in June 2015 that he had normal bowel habits (T55) and did not recall that his radiotherapy treatment ceased in November 2015. Similarly, Mr Curran did not recall the commencement of B12 injections by Dr Yaramati every three months from December 2015: T56.22. In addition, the plaintiff did not recall receiving regular injections of Triptorelin from Dr Yaramati as part of his treatment for his prostate cancer: T56.38. The plaintiff said that he "just had what I was given": T56.34.
When asked about his consultations with Dr Ong in February 2016, the plaintiff did not recall complaining to Dr Ong about having slightly erratic bowel movements following radiotherapy: T58.17-.26. The plaintiff appeared to have a poor memory in relation to his visits with Dr Ong: T58.44 and T59.6. The plaintiff conceded that he did not recall what he told Dr Yaramati throughout 2015 and in early 2016 or what Dr Yaramati said to him: T59.12-.16. However, he agreed that he saw Dr Yaramati in 2016 on a very regular basis having around 25 consultations with him throughout the year.
In the first half of the year, the plaintiff said he was seeing Dr Yaramati regularly for ongoing review: T60.11. He said he was taking a lot of tablets at that stage and he did not recall exactly what they were: T60.27. The plaintiff said he did not assert that Dr Yaramati failed to keep him informed about his health and the various test results he received over the years: T60.46. The plaintiff said his real complaint about Dr Yaramati was that nothing was being done about his loss of weight and no tests were performed to determine whether he had coeliac disease: T60.46.
The plaintiff asserted that he did make complaints to Dr Yaramati from December 2015 to mid-July 2016 about having watery bowel movements but he did not recall what he said. However, he agreed that that would have been a matter of concern to him and if he had been having problems he would have told Dr Yaramati: T61.47-T61.2 and .24-.40. The plaintiff denied that the first time he told Dr Yaramati about having watery bowel movements was in July 2016 when he was working a pump using dirty water. The plaintiff said he had never worked a pump with dirty water.
Mr Curran was asked a number of questions about the taking of tablets over the course of his consultations with Dr Yaramati. Such tablets included Cyproterone which the plaintiff was required to take daily in order to replace the hormones that were deficient by reason of his cancer treatment drugs. He also had an inability to recall the times when other medications were prescribed such as when he had some diarrhoea in mid-2016 when Dr Yaramati advised that he should take Gastrolyte: see T63.46-T64.43.
In relation to the plaintiff's weight, various questions were put to him about his weight at various times in the period 2015-2020. The plaintiff denied that he ever got to 65kg in weight despite various medical records suggesting that he did get to that weight. He claimed that his weight was mainly 60kg until 2020. The plaintiff recalled getting on the scales at the request of Dr Yaramati on a few occasions: T65.10.
The plaintiff did not recall consultations in the latter half of 2016 where he had high blood pressure and was given a referral by Dr Yaramati for chest x-rays because of a shortness of breath. However, the plaintiff agreed that throughout 2016 he was going about his everyday life without any problems: T66.6.
The plaintiff also agreed that Dr Ong, his oncologist, referred him to Dr Schmidt, a surgeon, who performed gastroenterological procedures and who performed a number of colonoscopies in relation to him although the plaintiff could not record the exact times. The plaintiff could not recall his consultations with Dr Schmidt but accepted that it was likely that her records recorded what he told her: T66.40.
The plaintiff had no recollection of any consultations with Dr Lewin, urologist, in early 2017. As stated above, he had no recollection of consultations with Dr Lewin: T20.6.
The plaintiff was asked questions about Dr Ong in 2017 saying there was a concern about osteoporosis arising from his hormonal replacement therapy which necessitated vitamin supplements. The plaintiff was vague in relation to this matter but said he did recall something like that being said although not recalling the details: T71.12.
Whilst the plaintiff recalled having difficulties with his hands due to carpal tunnel syndrome and recalled seeing a Dr Angela Hatfield, he surprisingly did not recall Dr Hatfield performing surgery on his wrists: T72-T73.23-.29.
The plaintiff was asked questions about having falls. He recalled having a number of falls but did not recall the times. However he agreed that he made no complaint of having episodes of falling down during 2015-2017: T73.39-.45.
The plaintiff was asked about experiencing "watery bowels" throughout 2017 and particularly the last quarter. He said he had some diarrhoea at that time but did not recall the details of it: T76.6-.17. He accepted that if he was experiencing concerns relating to watery bowel movements that he would have informed Dr Yaramati. He also agreed that the watery bowel movements were a matter of concern to him: T76.10-.41. The plaintiff could not recall that the first time he mentioned watery bowel movements in the period from July 2016 to Dr Yaramati was in October 2017: T77.16-.23. The plaintiff did not recall diarrhoea in October 2017 being resolved with Gastro-Stop: T78.13.
The plaintiff was asked whether he recalled dizziness, with Dr Yaramati prescribing Serc tablets. He did recall having tablets but could not recall the details in relation to what he was prescribed: T78.48-.15.
The plaintiff claimed that in the beginning of the 2018 he had problems including a lack of energy, but did not recall the details: T79.29-T80.10. In particular, he could not recall informing Dr Ong, oncologist, in February 2018 that his energy was back to normal. The plaintiff accepted that in the event he was experiencing watery bowel movements on a regular and constant basis he would have informed Dr Ong on the various occasions that he consulted him: T81.3.
It was put to the plaintiff that it was not until 31 August 2018 that he reported to the defendant Dr Yaramati episodic diarrhoea and that in the period from October 2017 to August 2018 he made no complaint to him about regular bouts of diarrhoea. The plaintiff could not recall the details of the consultation. He did say that towards that time he was starting to have regular diarrhoea and did not recall whether he told Dr Yaramati that he had experienced some symptoms during the period 2015 to the first half of 2018: T81.50-T82.21. He accepted that he was not having constant diarrhoea in that period. In particular, he did not recall telling Dr Yaramati on 7 September 2018 that overall he was well and had no acute concerns: T82.38.
The plaintiff was asked about Dr Yaramati advising him to take a bone density scan in October 2018, but he only recalled a discussion relating to arthritis: T82.46-.49; T86.50-T87.21.
The plaintiff was then asked questions about losing weight in 2018. He accepted that he lost weight in 2018 but could not recall at what time. He also did not recall seeing a Mr Gallo, dietician, for advice about his diet: T88.28.
When the issue of diarrhoea was raised again with the plaintiff he accepted that the diarrhoea he was experiencing between 2015 and 2018 was infrequent and it was not until 2020 that he experienced diarrhoea on a regular basis: T88.38-T89.11. This was an important concession by the plaintiff in his evidence. He accepted that as at December 2018 he was feeling reasonably well: T90.2. He assessed the status of his health as being reasonably good in 2018: T90.8.
The plaintiff was asked questions about feeling unwell in early 2019 but did not recall the details or being admitted to Wagga Base Hospital with a cystoscopy being performed by a Dr Thomas: T91.10. The plaintiff was taken to some admission documents in relation to his admission to Wagga Base Hospital which suggested that he had no falls in 2018 and his weight was 65kg: DTB 3/1047. The plaintiff said that his weight was about 60 to 61kg at this time and he did not recall whether he had had any falls in 2018. The plaintiff was asked about being admitted under the care of Professor Mackenzie, physician. The plaintiff recalled Professor Mackenzie and also recalled her looking after him at Wagga Base Hospital in about January 2019: T95.3 and following. It did not appear to me that the plaintiff had any real recollection of the details although he accepted that Professor Mackenzie looked after him in hospital: T95.46.
It was put to the plaintiff that the first fall he told Dr Yaramati about was not until March 2018. The plaintiff could not recall the detail but recalled falling in the dark and seeing Dr Yaramati about that: T97.24-T98.11. The plaintiff asserted that he had several falls in the garden although could not recall the timing of them.
At about this time in his evidence, the plaintiff said that his complaint with Dr Yaramati started in December 2020 as he had not picked up the problem he was having with coeliac disease which was identified by Dr Chan. He said previously to that he had no complaint with Dr Yaramati: T99.46.
The plaintiff was asked about informing Dr Yaramati in July 2019 that he was having chronic diarrhoea and was advised to use Questran sachets. He could not recall Dr Yaramati referring him back to Drs Ong, Lewin and Professor Mackenzie at that time but remembered the sachets: T102.18-T103.11.
The plaintiff was asked about having various colonoscopies with Dr Schmidt in 2017-2019. He rejected the proposition that he had had four colonoscopies and said he had only had three but did not recall the details of the dates.
The plaintiff was asked about a consultation with Dr Ong in February 2020. He agreed he had 12 monthly check-ups with Dr Ong. He also agreed that if he was experiencing chronic and constant watery bowel movements in February 2020 that he would have been concerned about it: T106.24.
The plaintiff was then asked about an admission to Wagga Base Hospital in August 2020 following a fall. The plaintiff had little recollection of this admission despite it being for a number of days. The plaintiff asserted that he had never been away from his caretaker duties for nine days and questioned whether he was in the Wagga Base Hospital from 8 August 2020 to 17 August 2020. However, the defendant's tender bundle included voluminous documents relating to the admission. The plaintiff appeared to dispute his signature on consent to operation forms at DTB 4/1314-15. However, I think it very likely that the plaintiff did sign these forms but does not recall it.
The plaintiff was further cross-examined in relation to his stays in Wagga Base Hospital in August and September 2020. He confirmed again that he had no recollection of spending lengthy periods in Wagga Base Hospital in August and September 2020: T127.33. When asked about his recollection of his bowel movements in August 2020, the plaintiff was only able to say that he was having diarrhoea problems in 2020: T127.37. He was then taken to the details in the Wagga Base Hospital notes on 17 August 2020 in relation to the history provided: DTB 4/1200 (which referred to a history of 18 months of diarrhoea on and off and being treated by his general practitioner with antidiarrheal medication). The plaintiff confirmed that at about that time he had lost 5kg and said the description of his symptoms with recurring diarrhoea was accurate: T127.39-T128.3. He could not recall whether he informed Dr Yaramati at any stage that he had been experiencing diarrhoea of the type indicated in the hospital history for a period of 18 months: T128.8. However, the plaintiff accepted that if he had been experiencing that pattern of diarrhoea over a lengthy period of 18 months that would have been of considerable concern to him and he would have informed Dr Yaramati about that history: T128.5-.19. No such history is set out in the consultation notes of Dr Yaramati.
The plaintiff had no recollection of being discharged from Wagga Base Hospital on 7 September 2020 and then consulting Dr Yaramati soon after. The plaintiff agreed that he had no recollection of the hospital admissions and no recollection of his consultations with Dr Yaramati in September and October 2020: T128.21-.31; T128.44-T129.19. It appears from the records that after the consultation with Dr Yaramati on 27 October 2020 the plaintiff did not consult with a doctor for a period. He next saw Dr Chan at the Corowa Medical Centre on 15 December 2020.
The plaintiff was asked about a local aged care assessment done by the local aged care chronic team over the telephone on 19 November 2020 (the file note was dated 24 November 2020). He had no recollection of this: DTB 6/2140. The plaintiff said he was not "with it" at this time. However, the plaintiff agreed, when questions were put to him, with most of the contents of the document history: T131.23-T132.5. However, contrary to the history in the aged care team document, the plaintiff denied stopping taking his medication: T132.13. The fact the plaintiff had no recollection at all of the conversation with the representative of the aged care team is clear evidence of his poor recollection of this period: T132.18.
The plaintiff gave evidence that he had assistance in cleaning his bathroom, toilet, laundry and kitchen but had received this only since he was very unwell in 2020. He also obtains assistance if he has to go anywhere where he requires help: T135.10. The plaintiff said he was able to do his own driving, shopping and cooking.
The plaintiff was asked about suggesting he had lost 20 to 30kg by December 2020 to Dr Chan. He denied this and said his loss of weight was about 10 or 11kg to 41 kg when he saw Dr Chan: T135.26. He said his recollection was not 44.1kg as recorded by Dr Chan but about 41kg, although he would accept Dr Chan's records: T135.49. The plaintiff said that he had never stated that his weight had fallen to 31kg: T136.10; T136.40.
The plaintiff stated that following his diagnosis with coeliac disease by Dr Chan and him altering his diet, he had significant weight gain and stopped all medications: T136.49. However, he said he still has urinary problems and has so from 2021. The plaintiff agreed he was now seeing a Dr Paffen, urologist, and had been since 2021. The plaintiff said he still attended the Corowa Medical Practice and was now seeing a Dr Popolo. The plaintiff confirmed that he required incontinence pads for urinary problems over the last couple of years: T139.37. The plaintiff also agreed that during the years he was consulting with Dr Yaramati from 2015 to October 2020 he did not wear incontinence pads for urinary difficulties: T140.2-.15.
The plaintiff confirmed that he was able to live his life on the farm where he acted as a caretaker with little work to do. In re-examination the plaintiff confirmed that he had some dizziness in recent times.

Oral evidence of the defendant

Oral evidence was given in the proceedings by the defendant, Dr Yaramati. In his examination in chief, Dr Yaramati was carefully taken through the history of his consultations with the plaintiff with the assistance of his consultation notes which were in the DTB.
The curriculum vitae of Dr Yaramati became Exhibit 1 in the proceedings. This showed that Dr Yaramati completed his university qualifications in India between 1995 and 2001. The record shows that he also had extensive experience in emergency medicine in the period 2003 to 2006 in the United Kingdom before coming to Australia where he also had considerable experience in emergency medicine in hospitals in Victoria in the period 2006 to 2012. From 2012 Dr Yaramati has practised as a full-time general practitioner at the Urana Medical Centre at Urana in New South Wales and as the on-call visiting medical officer at the Urana Multipurpose Service in Urana.
In his oral evidence, Dr Yaramati gave evidence that the Urana Multipurpose Service in Urana was part of New South Wales Health facilities and had one emergency bed. He gave evidence, which I accept, that this facility was located about one kilometre away from his rooms at the Urana Medical Centre. He also gave evidence, which I also accept, that the documents created from the Urana Multipurpose Service Centre, which form part of the DTB, can only be created there and not at his general practice. The relevance of this is that the plaintiff gave clear evidence that he had only seen Dr Yaramati at Dr Yaramati's rooms. The plaintiff is clearly in error in this evidence.
Dr Yaramati gave evidence that he was the only medical practitioner in the town of Urana. He said the nearest doctors were in a town 50km away and in a town 80km away. He said that if he was busy, sometimes he referred patients to these doctors.
Dr Yaramati gave evidence that he saw the plaintiff Mr Curran as his patient between January 2015 and October 2020. On occasions, he referred Mr Curran to various specialists. The referral letters from Dr Yaramati to these specialists were Exhibit 2 in the proceedings.
Dr Yaramati gave evidence that at his rooms he had a practice manager, three part-time secretaries and a practice nurse. He stated that there had been a substantial increase in the number of patients in and around Urana in his time at the clinic since 2012. Dr Yaramati's CV shows that he was made a member of the Royal Australian College of General Practitioners in 2019.
Dr Yaramati gave evidence about his usual practice in the period 2015 to 2020. He said he would record the history given by the patient and also record notes. The questions he would ask would depend on the circumstances and the patient's presentation. He would listen to their main concerns and then conduct an examination where required of them. If the case was complex he may make notes on paper but otherwise he would complete his notes on computer at the end of the consultation. After examining the patient, he would explain the treatment plan proposed and then, where appropriate, ask them to return for a further consultation. Dr Yaramati said his notes were very important to him and he said most of his patients were elderly as he practised in a rural and farming area. He would determine what action was needed to be taken based on his previous experience with the patient and their presentation and their comorbidities. Where blood tests were required or prescriptions given he would document that. He indicated that the letters "NAD" in his notes meant "nil abnormality detected". Dr Yaramati said that a number of his patients presented for multiple reasons. If he was concerned about a matter he would ask them in relation to the problem presented on the last occasion they had seen him. He said that some of his patients did not remember the last presentation. He said he definitely read his notes prior to a consultation with the plaintiff. Dr Yaramati said he would briefly talk to the patient and ask them how they were going and what concerns they had. If injections were acquired they would bring the injections with them and if given he would document that. He said he gave the injections himself.
In giving this evidence of his usual practice during consultations and notetaking, Dr Yaramati impressed as a careful and logical practitioner who was concerned to record in some detail the relevant presentations and treatment of patients. I accept his evidence as to his usual practice.
Dr Yaramati stated that he was present in court whilst the plaintiff gave his evidence. He said Mr Curran had consulted him as his general practitioner on many occasions in the period between January 2015 and October 2020. Dr Yaramati said he had an independent memory of Mr Curran and had refreshed his memory from reading his notes. He said he spoke to Mr Curran and reviewed his position regularly in the period he was a patient.
Dr Yaramati gave evidence that during the five years Mr Curran was his patient that he presented "quite well" and was able to provide him with an appropriate history. He found that the information that Mr Curran gave him in the 2015 to 2020 period was reliable and did not alter in that period. However, he said that the plaintiff's hospital admission in September 2020 was a significant event and as the plaintiff was elderly, the recovery phase for him was lengthy. He described his circumstances then as involving complexity. However, Mr Curran was able to come to the practice himself and appeared to be able to speak well about what had happened when he was in hospital, despite still recovering. In particular, Dr Yaramati said that Mr Curran was able to tell him what he had been advised by specialists to whom he had been referred and he found that the summary of the advice was consistent with the letters he received from the specialists. He gave evidence that the plaintiff's court presentation appeared to him to be the same as his presentation when a patient but that his mental acuity was different because of his inability on a number of occasions in his evidence to recall specialist involvement and admissions to hospital. That was the difference to his presentation to Dr Yaramati as a patient.
Dr Yaramati summarised the symptoms of coeliac disease as involving a spectrum of symptoms. He listed the symptoms as chronic watery diarrhoea, bloating, weight loss, abdominal pains in some cases and with long untreated patients some dental problems, a rash and bone abnormalities: T203.24. He gave evidence that the plaintiff never presented with the abdominal symptoms of coeliac disease which he had outlined: T204.26. Dr Yaramati said that if Mr Curran had made complaints of diarrhoea that he would definitely have recorded those in his consultation notes: T204.30.
As indicated, in his evidence in chief Dr Yaramati was taken in some detail through his consultation notes. In relation to the Medicare item numbers on the notes he said item three was for a brief consultation of less than six minutes, item 23 was for a consultation of between six minutes and 20 minutes, item 36 was for a longer consultation of between 20 and 40 minutes and item 44 was for a long consultation of more than 40 minutes. Dr Yaramati said that when a new patient came to see him they were requested to fill out a form and if they were a bad historian he may seek information from the previous practice. A new patient form was completed by the plaintiff, Mr Curran: see DTB 2/132.
Dr Yaramati gave evidence that when he saw the plaintiff in the first consultation on 23 January 2015 the plaintiff had no symptoms of coeliac disease. That was also the case at the review on 30 January 2015. The plaintiff's main presentation was urinary symptoms: T205.23-.36.
Dr Yaramati gave evidence in relation to his dealings with the plaintiff in 2015 where he was diagnosed with high PSA levels and in due course with advanced prostate cancer following referrals to Dr Lewin, urologist.
Blood tests ordered disclosed borderline deficiencies in B12 and folate which Dr Yaramati did not regard as clinically significant: T207.22-.38. Dr Yaramati said he had no independent recollection of any complaints or symptoms consistent with coeliac disease in March 2015: T208.6.
Evidence was given of the urologist Dr Lewin then referring the plaintiff to Dr Ong in 2015 for radiation therapy and hormone therapy as part of the plaintiff's cancer treatment. Dr Yaramati said that he read the reports from referred specialists and actioned them as necessary within his practice. An example was the injection to the plaintiff of Triptorelin as advised by Dr Ong as part of the cancer treatment which was always given in the arm unless a patient requested it in the buttock. Dr Yaramati said that Triptorelin could have an effect on the bone density of a patient which could lead to osteoporosis and a further need for Vitamin D supplements: T212.3. Dr Yaramati also indicated that during radiation therapy and hormone suppression therapy the B12 and folate levels would be lower and the patient would need nutritional supplements: T213.8.
Dr Yaramati said he had no recollection of the plaintiff complaining of diarrhoea in 2015 and no complaints were recorded in his consultation notes. He said if there had been a complaint of diarrhoea in 2015 he would have recorded it as he would have to treat it: T213.36-T214.4.
In relation to 2016, Dr Yaramati said that he gave the plaintiff medication for sleeping difficulties: T214.15-.38. He noted in mid-2016 that the plaintiff's B12 and folate levels on testing had normalised: T215.27.
Dr Yaramati was asked about his consultation notes for 12 July 2016 where the plaintiff complained of diarrhoea. He confirmed that this was the first time the plaintiff had mentioned diarrhoea to him. If he had previously mentioned it he would definitely have recorded it in his notes. He examined the plaintiff and gave him Gastrolyte as part of the treatment. This was the first occasion he had advised the plaintiff to take Gastrolyte: T215.43; T216.32.
Dr Yaramati was asked about weighing the plaintiff as occurred on 20 September 2016. He said he did not weigh every patient but considered it was necessary to weigh Mr Curran as he had cancer and was on hormone therapy: T217.4. Dr Yaramati gave evidence that after the 12 July 2016 complaint of diarrhoea there was no complaint in the following consultations otherwise he would have documented it: T218.45. Dr Yaramati gave evidence that following the radiation treatment the plaintiff had per rectal bleeding and he initially referred the plaintiff to Dr Ong so that he could be referred to Dr Schmidt for review with a colonoscopy: T222.15-.37.
Dr Yaramati said that he read all specialist letters relating to the plaintiff (T222.37) and enquired of the plaintiff about the contents of the specialist letters if problems were recorded: T222.50-T223.32.
In relation to consultations in 2017, the plaintiff reported pins and needles in his hand which, on examination, Dr Yaramati took to be carpal tunnel syndrome and referred him to Dr Hatfield for treatment.
In relation to the plaintiff's increased weight in mid-2017 recorded as 72kg, Dr Yaramati said that he only recorded the plaintiff's weight if he weighed the plaintiff: T227.22. Dr Yaramati put the weight gain down to high blood pressure and the carpal tunnel syndrome: T227.30. Dr Yaramati said he could not understand the plaintiff's lack of recollection of his carpal tunnel syndrome surgery as he saw his wounds and removed the sutures: T228.22.
Dr Yaramati agreed that in October 2017 the plaintiff reported a history of diarrhoea as recorded with intermittent bleeding. This was the first time the plaintiff had complained of watery diarrhoea but it was only intermittent. As the plaintiff had not had this trouble before, Dr Yaramati recommended an over-the-counter therapy with a request to come back if necessary for further investigations: T228.44-T229.28. Dr Yaramati said that from his recollection the plaintiff's diarrhoea problem settled quickly: T229.43, having resolved with the Gastro-Stop. Apart from the diarrhoea, which settled quickly, Dr Yaramati said that when Mr Curran presented to him on 11 October 2017 he did not report any other symptoms which he would normally associate with the diagnosis of coeliac disease, and if he had, he would have recorded them in his notes: T230.11-.17.
In relation to the plaintiff's evidence of having no recollection of Dr Lewin, Dr Yaramati indicated that he was the primary urologist who the plaintiff consulted multiple times: T231.15.
Dr Yaramati said that from his recollection there was no constant pattern of diarrhoea which Mr Curran complained of in 2017 but he had some episodes of short-term diarrhoea associated with bleeding. He said that this was obtained from histories in specialist reports that he read. When he received that information from a specialist he would then ask the plaintiff about the history and regularly monitor him after that. When asked, the plaintiff did not seem much concerned about the matter although Dr Yaramati planned to monitor the plaintiff's haemoglobin and iron levels regularly through blood tests: T238.44-239.14.
Dr Yaramati stated that the plaintiff consulted him regularly in 2018 at which consultations he gave him regular prescriptions and injections. Dr Yaramati said that in the event in 2018 that the plaintiff had complained to him of any symptoms referable to coeliac disease he would have recorded those symptoms where there was a change from the plaintiff's regular pattern and would have acted on the changed symptoms: T239.22. This included if there was any complaints about low energy levels or fatigue. On 20 February 2018, Dr Yaramati said he referred the plaintiff to Dr Schmidt, general surgeon, for symptoms of per rectal bleeding: DTB 2/194. At a consultation on 17 April 2019, Dr Yaramati recorded that on examination the plaintiff's weight was 65.4kg, which was way higher than his weight when he first consulted Dr Yaramati: DTB 2/198.
Dr Yaramati recorded that on 9 May 2018 at a consultation with the plaintiff mild anaemia was noted in blood results. His notes record the words "for monitoring". Dr Yaramati noted that this was the first time he had noted "very mild anaemia" for the plaintiff and the fact he used the words "for monitoring" indicated it was not a major concern as there were no signs of bleeding: T241.21. Dr Yaramati said that he wanted to monitor the plaintiff's haemoglobin and iron levels in the light of the anaemia and in the context of the presenting symptoms of intermittent PR bleeding which had arisen since the diagnosis of radiation proctitis: T241.33-.47. On 13 July 2018, Dr Yaramati recorded that the plaintiff had normal haemoglobin and iron studies in his blood results (DTB 2/204); T241.50.
Dr Yaramati was taken to his notes for 31 August 2018 (DTB 2/206). From his recollection, Dr Yaramati stated that around that time, Mr Curran presented with a change in pattern of symptoms. This was the first time this had occurred and there was episodic diarrhoea stopping and starting with no abdominal pain or constipation. At that time the plaintiff was waiting for a colonoscopy and Dr Yaramati examined his abdomen and suggested Metamucil. Dr Yaramati said he wanted to ensure that the plaintiff was having a follow-up with the specialist. Dr Yaramati said that the change in bowel habits concerned him as suggesting bowel cancer in the light of a history of metastatic prostate cancer and rectal polyps. He regarded the plaintiff as a high-risk patient for this at the time: T242.28-.47. In notes after this, Dr Yaramati said that the fact he did not document an ongoing diarrhoea pattern indicated that the plaintiff did not raise it and was not concerned. If the plaintiff had raised it he would have looked at further options to investigate such as a CT scan.
Dr Yaramati denied that his notes for 31 August 2018 and 7 September 2018 indicated that the plaintiff's presentation on those days gave a reasonable indication of the possibility of coeliac disease which required action. First, Dr Yaramati said that chronic symptoms of diarrhoea is a common presentation in his clinic. He stated that malabsorption problems are significant with coeliac disease which should cause an iron deficiency and anaemia. The plaintiff never had iron deficiency and never had microscopic anaemia. The plaintiff did not have chronic symptoms of loose bowel actions which were inexplicable with objective evidence suggesting coeliac disease. The radiation induced proctitis was also the background as well as colonscopic findings of polyps which suggested a high risk of cancer. These matters did not suggest coeliac disease: T243.46-T245.15. There was also no weight loss but rather weight gain in the context of androgen therapy injections for treatment of the plaintiff's prostate cancer: T245.39. This put the plaintiff at risk of osteoporosis: T243.26. Dr Yaramati in his consultations with the plaintiff in 2018 did not elicit any findings referable to malabsorption (T245.49) which would have required testing for malabsorption screening and coeliac disease. Dr Yaramati said that he had experience in treating patients who have been diagnosed with coeliac disease in his general practice: T246.7.
Dr Yaramati noted that if he suspected coeliac disease he would do a coeliac disease antibody test but if there were further symptoms he would refer the patient to a gastroenterologist to undertake biopsies of the small intestine. He said that this was the "gold standard" for diagnosis of coeliac disease and the gastroenterologist would decide whether to give advice to stop gluten in the diet. A gastroenterologist would then take over the case because of the complexity involved in the testing required: T246.11-.38. Dr Yaramati said that he would prefer to send a patient to a gastroenterologist because that was the more appropriate specialty area to deal with the cases. Dr Yaramati said that none of the specialists including Dr Ong, Dr Lewin, Dr Schmidt, Professor Mackenzie or Professor Hatfield suspected coeliac disease or arranged for tests for it themselves: T246.44-T247.34.
As noted in his consultation notes for 10 October 2018, Dr Yaramati said that the plaintiff qualified for a bone density scan and was at risk of osteoporosis. He commenced the plaintiff on six monthly Prolia injections with additional calcium and Vitamin D supplements (DTB 2/212).
Dr Yaramati said that in 2018 the plaintiff never complained of having frequent falls or losing his balance. He said he would have regarded this as a serious matter. He also never indicated to Dr Yaramati that he was wearing incontinence pads due to urinary problems. Dr Yaramati said that if he had he would have referred him for free incontinence pads subsidised by the government and would have undertaken more steps.
Dr Yaramati was asked about the plaintiff's admission to Wagga Base Hospital on 6 January 2019 complaining of acute flank pain with vomiting and diarrhoea. Dr Yaramati said he arranged for the transfer of the plaintiff from the Urana Facility to Wagga Base Hospital so that he could have specialist support which was unavailable in Urana (DTB 2/62). Dr Yaramati said that the plaintiff's main problem was an obstruction in urinary flow as a result of a build up of calculus from the kidney to the bladder. A large kidney stone was detected and a stent was inserted. The plaintiff suffered further problems when the procedure to remove the kidney stone was cancelled and he had an infection (DTB 2/632). As there was no mention of ongoing diarrhoea it was not a matter of concern to Dr Yaramati. There was also an electrolyte disturbance which was the reason Dr Yaramati sent the plaintiff to Wagga Base Hospital: T250.13-.26. Dr Yaramati said that the plaintiff came under the care of Professor Mackenzie who was an on-call physician for Wagga Base Hospital and did not only deal with respiratory work. At no time did she mention to Dr Yaramati that she had obtained a symptom profile for the plaintiff consistent with coeliac disease: T251.22-.47 and T252.19-T253.17; see also DTB 2/599 and 602. This was particularly in the context of Professor Mackenzie saying that she did not need to see the plaintiff again at that stage: T253.5-.17.
Dr Yaramati disputed that the Wagga Base Hospital admission document (DTB 2/622) referring to eight episodes of diarrhoea should have suggested to him the issue of coeliac disease. He said there was no chronic diarrhoea and the symptoms of acute pain were consistent with renal colic with an acute presentation. The second presentation soon after to Wagga Base Hospital, did not mention anything about ongoing diarrhoea which was significant to Dr Yaramati. The absence of evidence of ongoing diarrhoea indicated that it was not a matter of concern at that stage: T253.46-T254.30.
Dr Yaramati was asked about a fall which the plaintiff had in March 2019 which resulted in him referring the plaintiff to Wagga Base Hospital for a CT scan and the prescription of pain relief tablets. The plaintiff fractured his ribs. Dr Yaramati said that throughout 2019 there was no complaint to him by the plaintiff of symptoms which were referable to a diagnosis of coeliac disease other than one or two occasions of complaint of diarrhoea without chronic diarrhoea. There was no complaint of balance issues or falling down in 2019, other than the incidents in March 2019 and later in May: T255.25-.38.
Dr Yaramati gave evidence that in May 2019 the plaintiff came to see him following a mechanical fall on that day. On examination the plaintiff appeared to be well systemically but with a painful left elbow and pain in the left lower chest: see also T259.36-.44.
Dr Yaramati was taken to his consultation notes for 7 June 2019 which recorded the plaintiff complaining about "constipation followed by diarrhoea since few weeks" with no abdominal pain. Metamucil was advised: DTB 2/233. Dr Yaramati said he advised a CT scan if there was no improvement to rule out the potential for bowel cancer through cancerous polyps: T260.11.
The plaintiff also complained about chronic diarrhoea on 22 July 2019: DTB 2/235. Dr Yaramati said the plaintiff's background history of cancer and of normal iron studies with proctitis did not suggest coeliac disease but required follow-up with blood tests and specialist referrals. Throughout 2019 the plaintiff did not present to Dr Yaramati with additional symptoms suggesting coeliac disease: T261.23-.34 and T262.22-.34. Dr Yaramati also noted that his consultation notes suggested that the plaintiff was feeling well and was observed to be normal: DTB 2/239. At this time if he had been told that there was a pattern of chronic diarrhoea continuing from the July references he would have recorded it: T263.13. Dr Yaramati said that while the plaintiff had ongoing symptoms of intermittent bleeding, the constipation alternating with diarrhoea were new symptoms which was the reason why he referred the plaintiff back to the specialists: see DTB 2/238-9 and T263.34.
In September 2019. Dr Yaramati's notes record the plaintiff's weight reducing to 57.8kg. He indicated that since the plaintiff stopped the hormone replacement therapy and had dietician follow-up his weight started to come down slowly and improve: T264.44; DTB 2/245. The plaintiff's precancer diagnosis weight when he first saw Dr Yaramati was recorded as 56kg: DTB 2/133.
Dr Yaramati noted that in October 2019 Dr Schmidt undertook a colonoscopy and haemorrhoidal banding. There was no letter from Dr Schmidt suggesting coeliac disease and the plaintiff appeared overall to feel well in his December consultation: DTB 2/248.
In the first half of 2020, Dr Yaramati said that he saw the plaintiff on a number of occasions for blood tests, prescriptions and injections and no new concerns were expressed with the plaintiff overall feeling well: DTB 2/253-256. Dr Yaramati said he did not recall any complaints in the period from the end of 2019 to 2020 from the plaintiff of falling over, having regular diarrhoea, pins and needles in his legs or requiring incontinence pads: T267.1-.10.
Dr Yaramati was taken to his consultation notes for 23 July 2020 where the plaintiff referred to intermittent symptoms of diarrhoea. He indicated that the primary presentation was to obtain the Prolia injection and he had just had screening for a colonoscopy. The plaintiff was also experiencing ongoing proctitis and there was no suggestion of iron deficiencies or malabsorption problems: DTB 2/258; T267.41-.20 and T268.35-.44.
Dr Yaramati was then asked about the plaintiff's admissions to Wagga Base Hospital in August and September 2020. The plaintiff was admitted from the Urana Facility to Wagga Base Hospital on 8 August 2020 following a fall: DTB 2/644. There was no complaint by the plaintiff about abdominal pain or diarrhoea to Dr Yaramati: DTB 2/644-645; T269.29.
Dr Yaramati stated that he received the discharge summary at DTB 2/648 which referred, at page 649, to the plaintiff having "18 months of diarrhoea with increased frequency over the past week. Noted to have six-eight episodes per day, watery in content". It is unclear to Dr Yaramati whether the reference to "past week" meant the week before the plaintiff was admitted to hospital or during his stay in hospital. Dr Yaramati said that he was only informed by the plaintiff of occasional intermittent diarrhoea in the context of radiation proctitis. He said he was never told by the plaintiff that he had had 18 months of continuous diarrhoea: T270.12; T271.10; T272.3. Dr Yaramati said that he believed the hospital admission was for a urinary tract infection with florid sepsis: T272.17.
Despite Dr Yaramati receiving a phone call from Wagga Base Hospital on 17 August 2020 to the effect that the plaintiff had left the hospital against medical advice (DTB 2/259), he did not see the plaintiff again until 15 September 2020 when he indicated that he was managed for anaemia and electrolyte abnormality following having a repeat gastroscopy and colonoscopy in the context of radiation proctitis: DTB 2/260.
Dr Yaramati also mentioned the small bowel biopsies of the plaintiff's bowel undertaken in Wagga Base Hospital on 13 August 2020 which were relevant to the diagnosis of coeliac disease and suggested that there was no coeliac disease pattern in the biopsies: T274.25-T275.9.
On 29 August 2020, Dr Yaramati referred the plaintiff to Wagga Base Hospital following chest pain and acute urinary retention in the context of chronic diarrhoea which had improved to some extent and no abdominal pain: DTB 2/653. Dr Yaramati said that the plaintiff looked unwell: T275.23. The discharge summary which Dr Yaramati received on 17 September 2020 referred to the histology result being awaited with interest to see if there was any evidence of coeliac disease and/or small bowel lymphoma: DTB 2/657-8. Dr Yaramati said that he formed the view at the time that there was a diagnostic dilemma for the specialist because of the previous colonoscopy and gastroscopy being normal and there was no histological confirmation at the time of coeliac disease. He noted that he did not receive any advice for the plaintiff to take a gluten-free diet under the discharge summary instructions pending the results of the tests: T276.41-.50. Dr Yaramati said that he had never seen the plaintiff's kind of presentation in his life with such negative biopsy reports and a diagnostic dilemma of this nature. In his view, it did not fit the criteria for coeliac disease: T277.1-.15. Dr Yaramati said that he would not institute a gluten-free diet without the advice and consultation of a gastroenterologist: T277.26.
Dr Yaramati gave evidence that his last consultation with the plaintiff was on 27 October 2020 and as far as he was aware at that time, he did not have a copy of the histopathology reports relating to the plaintiff's second gastroscopy and colonoscopy: T278.32. The records at DTB 2/667 and following seem to suggest that was received by Dr Yaramati on 24 November 2021, over a year later (see fax header at the top of DTB 2/667): T280.2-.27. As at 27 October 2020, Dr Yaramati expressed the view that in the light of the previous negative biopsies, the plaintiff had not met the diagnostic criteria for coeliac disease: T279.1-.18.
Thereafter, after some delay, the plaintiff consulted Dr Aileen Chan at the Corowa Medical Centre.
Dr Yaramati was subject to a detailed cross-examination. Initially, Dr Yaramati was asked about his usual practices during the time he saw the plaintiff (not all the questioning was specifically targeted to his usual practice at that time but that is how I understood the cross-examination to be directed and how it appeared to me Dr Yaramati understood the cross-examination). Dr Yaramati said that when he was seeing Mr Curran he had as practice software "Medical Director". In relation to pathology reports, he said that some laboratories sent the reports directly to him online and others sent them by fax or by post. If the reports were urgent, he would call the patient after reading them for the purposes of taking action. If they were not urgent, he may call the patient within a few weeks. In relation to reports sent online, Dr Yaramati said that he had to download the reports every day in order to view the pathology results. He said he read the reports himself each morning or at the end of the day or if he was busy, the next day. In relation to pathology tests as at 2015, sometimes it took several days for the results to get back to him.
Dr Yaramati was taken to the blood test results which appear at DTB 2/284-295. He was also taken to the blood tests performed in December 2015 which are at DTB 2/328. Dr Yaramati could not recall when he read the tests results, but said that they arrived electronically and he reviewed each page of the tests results to look for anything abnormal. He agreed that he understood the letter "L" in the tests to mean a low result.
In relation to the receipt of specialists' correspondence, Dr Yaramati said that he received some of this online, some by fax and some by post. When he was taken to the report of Dr Lewin dated 11 March 2015 (DTB 2/563), Dr Yaramati said that the stamp indicated the date it was received by his practice and his initials were placed by him on the letter after he read it. He could not recall when he read this particular report, but said his usual practice was to read the reports as they came into his practice and were placed on his table. He said he likely reviewed it on 10 or 11 April 2015 and would read the whole document. Where specialist letters were also received electronically, Dr Yaramati said that he may read them twice and would check that he had acted on them previously when he received the hard copy (the second version).
Dr Yaramati was asked about his number of patients as at the end of 2015 and early 2016. Dr Yaramati said that at this time, his practice allocated 15 minutes per consultation with a patient but some were shorter and some were longer. He also had responsibilities at the clinic in the town. There were also walk in patients who sought a consultation and accordingly there would often be more than four patients in an hour. He said the practice started at 9am and the last consultation was at 4:45pm but often he was still seeing patients well after this time. He estimated that he saw 25 to 30 patients per five day week.
Dr Yaramati was asked whether he looked through the file on receiving the letter from the plaintiff's solicitor about a claim. He said he was initially upset as no claim had been made against him before but after some time, he reviewed the file and felt comfortable with the actions he had taken.
Dr Yaramati agreed that Mr Curran was seen by him as a new patient at the beginning of 2015 and he complained to him of difficulties relating to urination issues. He said that he arranged blood tests (DTB/2 page138) which disclosed elevated PSA levels which resulted in him referring the plaintiff to Dr Lewin, urologist, on an urgent basis. Dr Yaramati said his consultation with the plaintiff on 6 February 2015 was a long one having regard to the elevated PSA levels: T363.31-T364.38. An ultrasound of the renal and bladder area was also requested: T364.20. Dr Yaramati said that he requested further PSA testing based on the initial results to exclude laboratory error as the very high PSA levels were significant and indicated undiagnosed cancer. A second test required was required as a caution.
Dr Yaramati said that he believed there was no discussion in relation to the plaintiff's dietary habits in the first consultation, but he remembered that the plaintiff was a small person.
In relation to the plaintiff's blood test results for 30 January 2015 (see DTB 2/295), Dr Yaramati said that the serum folate level at 1.9 was low but the red cell folate level was normal. He believed he had read the blood test results at DTB 2/295 before he saw the plaintiff at the consultation on 6 February 2015. Dr Yaramati said that the discussion at the consultation on 6 February 2015 was related to the potential for life-threatening prostate cancer and it was a lengthy consultation which involved a long discussion. He said he could not recall discussing the low folate level but said that he would not have put it as a high priority in the circumstances. Dr Yaramati rejected the proposition that the low serum folate level was a "red flag" of a gut disorder and said that there was no evidence to him of a short or long term gut problem, particularly as a long term problem would have affected the blood count levels: T366.11-T368.32. Dr Yaramati said that he could not recall between January 2015 and December 2015 when the plaintiff was undergoing his cancer treatment, revisiting the folate level issue: T369.43. However, Dr Yaramati indicated that he thought the symptoms were more important being whether the patient was symptomatic: T368.21.
Dr Yaramati confirmed that he referred the plaintiff to Dr Lewin who he understood in turn referred the plaintiff to Dr Ong, the oncologist, and that thereafter the plaintiff had radiation therapy and hormone deprivation therapy. He accepted that the radiation therapy apparently was completed in November 2015 (DTB 2/574).
Dr Yaramati was taken to the results dated 17 December 2015 which showed that the serum folate level for the plaintiff had increased from 1.9 to 3.5 but was still low: T370.6. Dr Yaramati agreed that he would have reviewed the results before he saw the plaintiff on 24 December 2015 (DTB 2/154), when he added a prescription for B12 injections and folate tablets. Dr Yaramati said that he did not regard the December 2015 results as particularly concerning as he considered whether the plaintiff had any symptoms pertaining to low folate levels and noted that he had no symptoms of chronic diarrhoea or malabsorption. Dr Yaramati said that he thought the low folate level may have been due to malnutrition or dieting following the cancer treatment: T371.5. He said that the cancer treatment can cause nausea which meant that patients did not feel like eating: T371.32.
When it was pointed out to Dr Yaramati that as at January 2015 the plaintiff had not commenced the cancer treatment but had even lower serum folate levels (which he accepted), he said that the plaintiff had no symptoms of chronic diarrhoea or malabsorption as at January 2015: T372.24. In other words, Dr Yaramati said that the plaintiff was not symptomatic at that time: T373.2; T373.49. Dr Yaramati acknowledged that the plaintiff had low serum folate levels but said he was not symptomatic at that time: T374.12-.43.
The court raised the issue of the red cell folate levels and Dr Yaramati said that the red cell folate level was normal both in January and December 2015. He expressed the opinion that the red cell folate level was more accurate in indicating the patient's folate position because the serum folate level fluctuated frequently and depended on the plaintiff's consumption in the few days previously. He said that he regarded it as a priority for the patient to have normal red cell folate levels which the plaintiff had in the present case: T375.2-T376.5. Dr Yaramati said he was not significantly concerned at the serum folate levels but prescribed folate supplements and B12 supplements as a nutritional supplement as a precautionary measure having regard to the plaintiff's cancer treatment: T376.47-T377.19. Dr Yaramati did not see the nutritional supplements as causing side-effects for other medical conditions: T377.25. Dr Yaramati emphasised again the normal red cell folate levels in the two blood tests in January and December 2015.
Dr Yaramati was then asked a number of questions about symptoms relevant to a diagnosis of malabsorption which included erratic bowel function with runny stools which he said could be a description consistent with diarrhoea. He said loose bowels may or may not be an indication of a malabsorption disorder depending on the pattern for the patient.
Dr Yaramati was then taken to the report of Dr Ong, oncologist, dated 16 February 2016 which indicated that the plaintiff had reported slightly erratic bowel function using his bowel one to four times per day with it being "mainly loose but sometimes a bit runny". He agreed that he would have read this report on or about the date it was received in his practice on 21 March 2016 and thus had knowledge of the symptoms referred to by Dr Ong. Dr Yaramati said he could not recall discussing the symptoms of diarrhoea referred to by Dr Ong with the plaintiff but noted that radiation induced proctitis which the plaintiff had can cause diarrhoea: T379.47-T380.16. He accepted that these symptoms indicated that he had to keep monitoring the plaintiff: T380.21. Dr Yaramati said that the plaintiff, despite receiving targeted radiation, had radiation proctitis of a long duration: T380.34. He was of the view that the diarrhoea symptoms referred to by Dr Ong were likely caused through radiation proctitis: T380.42. Dr Yaramati said that if he had read Dr Ong's letter prior to the appointment he would have discussed the symptoms with the plaintiff, particularly to see whether it was bothering him or was an ongoing or concerning problem for him. If it was regarded as significant, Dr Yaramati said he would have documented it in his notes: T381.5-.31; T383.37. Dr Yaramati also indicated that if Dr Ong had been concerned about that at a specialist level, he would have initiated the relevant investigations: T384.22.
Dr Yaramati was asked whether he sent the plaintiff's January 2015 blood results to Dr Lewin. Dr Yaramati was of the opinion that they had been sent to Dr Lewin as otherwise he would not have had any blood tests results to consider. This was despite the fact that his notes did not indicate that the full set of blood tests had been sent to Dr Lewin: T385.26; T386.30; T387.10-.22. See also DTB 2/143 which refers to certain updated information being provided to Dr Lewin.
On the assumption that the blood tests results had not been sent to Dr Ong, Dr Yaramati accepted that Dr Ong would not have known of the low serum folate levels. However, he emphasised that Dr Ong would also not have known of the red cell folate levels which were normal: T390.21-.41.
Dr Yaramati was then taken to the blood tests performed on 24 June 2016 which he confirmed showed greatly improved vitamin B12 levels and serum folate levels and which he accepted was likely due to the supplements which the plaintiff was taking. This was also the case for the tests performed in June 2017: DTB 2/353 and 392; T391.34 and T392.2.
Counsel for the plaintiff put to Dr Yaramati that having regard to the blood tests results for January and December 2015 and Dr Ong's history set out in his report to Dr Lewin dated 16 February 2016 (DTB 2/574) which disclosed symptoms of diarrhoea, Dr Yaramati ought to have considered that the plaintiff had a potential gut disorder as at 22 March 2016. In response, Dr Yaramati said that the plaintiff's diarrhoea was intermittent and associated with bleeding. Secondly, the plaintiff's red cell folate level was normal at all times. This indicated to Dr Yaramati that the plaintiff was not fully folate depleted: T394.22. In addition, Dr Yaramati said he was familiar with the plaintiff's position in that he was having cancer therapy and post the radiation therapy he had complications with the possibility of radiation proctitis at the time. There was no question of malabsorption problems because of the plaintiff's red cell folate levels being normal. That is why he did not proceed to go through the screening process for malabsorption: T394.33-.46. Dr Yaramati said it was unclear what testing for coeliac disease would have revealed at this time where there was no indication of malabsorption problems from the blood results: T395.1. Dr Yaramati added that whilst he did not know whether blood testing for coeliac antibodies was expensive, he said it could be done through a GP referral involving public testing. He indicated that if a patient tested positive for coeliac antibodies, he would refer them to a specialist with this information and the specialist, who would be a gastroenterologist, would then proceed to undertake biopsies to establish the patient's position: T395.20-T396.4.
Dr Yaramati was then taken to his notes for a consultation on 12 July 2016 where the plaintiff indicated that he had diarrhoea for the last two days (DTB 2/163). Dr Yaramati emphasised that these symptoms had only been for the last two days and having regard to the plaintiff working with dirty water, he gave initial treatment to the plaintiff for gastroenteritis with instructions to come back if symptoms persisted. Dr Yaramati denied the suggestion that this showed a pattern of repeated diarrhoea: T397.7. He said he regarded the symptoms as a new problem for the last two days only in the context of working with dirty water which was a completely different kind of situation to that referred to by Dr Ong: T397.11.
Dr Yaramati was taken to Dr Ong's letter dated 13 February 2017 (DTB 2/578) where it referred to the plaintiff using his bowels once to twice a day "usually loose". Dr Yaramati referred to the plaintiff having a history of a minor inflamed rectum suggesting proctitis and that the proctitis was in his view associated with the loose bowel movements and the bleeding referred to: T397.41. When it was suggested to Dr Yaramati that there were similar bowel symptoms in the plaintiff shown a year after the February 2016 Dr Ong letter, he referred to his notes for 20 March 2017 which referred to the plaintiff's colonoscopy which had findings of radiation cystitis and proctitis. He saw this as providing a diagnosis for the plaintiff's symptoms from the specialist who had undertaken the colonoscopy, Dr Schmidt.
In relation to the suggestion that it was possible as at February 2017 that the plaintiff had undiagnosed and untreated coeliac disease, Dr Yaramati said that there were no abnormalities pointing to that in his view in the patient's history or presentation: T399.8.
In relation to later symptoms referred to in Dr Ong's 22 May 2017 letter of loose bowel up to 3 times per day (DTB 2/580), Dr Yaramati referred to the plaintiff having "very occasional PR bleeding from his bowel" in Dr Ong's letter to Dr Lewin with there being no other symptoms except the reference to diarrhoea in the context of radiation proctitis. He said this gave him no reason to consider malabsorption problems at that time as there were no other relevant symptoms which would have been present if there were malabsorption problems: T399.50-T400.13. Further, Dr Yaramati said that if the specialist was concerned, he would investigate the issue himself or ask Dr Yaramati to undertake further investigations: T400.25-.42. Further, the colonoscopy undertaken by Dr Schmidt did not indicate any relevant concern (DTB 2/590; DTB 2/592).
When Dr Yaramati was taken to the position as at May 2018 with the plaintiff's lower serum folate level, he said that he did not regard it as clinically significant because the red cell folate level was normal: T403.26. Only the plaintiff's serum folate level was fluctuating: T404.37. Dr Yaramati agreed that he would have been worried if the plaintiff's red cell folate level was also low: T409.37.
Dr Yaramati was taken to his consultation notes for 31 August 2018 which referred to episodic diarrhoea recurring regularly (DTB 2/206). He said he recalled the plaintiff presenting with those symptoms on two or three occasions. Dr Yaramati said the diarrhoea was only episodic with the same pattern and the plaintiff's abdomen was normal. His consultation notes also referred to the plaintiff awaiting a repeat colonoscopy: T407.18.
It was put to Dr Yaramati that the plaintiff's serum folate levels as at May 2018 with episodic diarrhoea as referred to in the notes for 31 August 2018 suggested a functional gut disorder in the plaintiff. Dr Yaramati pointed to the plaintiff's normal red cell folate levels and normal iron levels as at May 2018, which in his view were inconsistent with malabsorption problems. In his view, there was no indication for screening for coeliac disease and at the same time the plaintiff still had occasional proctitis. Further, the plaintiff did not appear to have any problems in absorbing the folate tablets themselves: T408.9-.31.
Dr Yaramati was then asked a number of questions about bone density risks with the plaintiff and osteoporosis. He accepted that if a patient had coeliac disease there was a risk of osteoporosis but stated that in the present case the plaintiff had a risk of osteoporosis due to his cancer therapy. He said he did not consider coeliac disease before ordering bone density scans as there were no indicators in his view of coeliac disease.
Dr Yaramati was then asked questions about the plaintiff's hospital admissions in 2019 and 2020.
In relation to the admission in January 2019, Dr Yaramati said the plaintiff had hyperkalaemia, being high potassium levels, due to a kidney infection leading to sepsis. With the plaintiff's kidneys being unable to function properly this led to the plaintiff's flank pain and low blood pressure.
Dr Yaramati was asked about the plaintiff's balance issues. He said that the plaintiff presented on a few occasions for dizziness. He agreed that if a patient had coeliac disease that balance problems were within the spectrum of symptoms, but he said he never saw any indication of coeliac disease: T415.11.
Dr Yaramati referred to the blood test results dated 29 July 2019 (DTB 2/476). He said he requested red cell folate level tests but the test showed no results for red cell folate. He said that he had been told at the time that if the serum folate level was normal then the pathologist did not proceed to do red cell folate level tests.
Dr Yaramati agreed that in 2020 the plaintiff became acutely unwell and needed hospital admissions. Dr Yaramati stated that by October 2020 he was aware that the plaintiff had been unwell with a number of hospital admissions which he said he understood were related to significant sepsis as the plaintiff had experienced in 2019: T416.18; T416.47. At this stage, Dr Yaramati said that he regarded the plaintiff as having chronic disease which led to him preparing a chronic disease management plan, including prostate cancer, complications with that, osteoporosis, high blood pressure, episodic diarrhoea with bleeding, proctitis and cystitis as well as urinary infections and kidney function problems: T417.5. In relation to the consultation with the plaintiff on 15 September 2020 (DTB 2/260), Dr Yaramati said that he received no instructions or recommendations from Wagga Base Hospital to investigate the possibility of coeliac disease. The repeat gastroscopy and colonoscopy with biopsies also did not reveal any issue concerning coeliac disease in September 2020: see also the consultation on 17 September 2020 (DTB 2/261).
Dr Yaramati was taken to the discharge document from Wagga Base Hospital received by his clinic on 17 September 2020 (DTB 2/657) which referred to the repeat gastroscopy and colonoscopy performed on 4 September 2020 revealing mild gastrointestinal bleeding with the histology results being awaited "with interest to see if there is any evidence of coeliac disease and/or small bowel lymphoma". He agreed that he read the document at about the time it was received. He noted the blood in the stool and was awaiting the results. He agreed that he saw the plaintiff on four occasions after receiving this document. He also agreed that at no stage did he have a discussion with the plaintiff in relation to coeliac disease as he was awaiting the report concerning the biopsies in the repeat colonoscopy. He said he understood that the specialists were doing repeat tests and were looking at the issue: T420.8-.45.
Dr Yaramati was asked some questions about the plaintiff's admission to Wagga Base Hospital in January 2019. He agreed that the plaintiff had been admitted to Wagga Base Hospital with kidney stones in around January 2019. He also accepted that his practice received the Wagga Base Hospital discharge summary on 6 January 2019 which is at DTB 2/622. Dr Yaramati said that the admission to Wagga Base Hospital was due to a urinary infection caused by kidney stones causing severe pain or obstructing neuropathy. He added that the kidney stones would have caused such severe pain as to result in vomiting and nausea.
Dr Yaramati accepted that vomiting and diarrhoea can cause dehydration. He rejected the proposition that having regard to the fact that January 2019 was in summer that dehydration can exacerbate the kidney stone condition of the plaintiff. He expressed the opinion that the kidney stones would be pre-formed and are likely there for a long time. He also rejected the proposition that dehydration could make the kidney stones symptomatic. He stated that if the kidney stones were blocking the kidney that would cause pain which could result in vomiting and then dehydration but the dehydration would be a result of the kidney stones rather than a cause of them.
The defendant was asked about his consultation with the plaintiff on 29 January 2019 (DTB 2/215). He agreed that he saw the plaintiff on that date and that there is a reference to hyperkalaemia in his notes. However, he rejected the proposition that that condition was noted by him but instead had been noted and treated by Wagga Base Hospital with the high potassium caused by the plaintiff's kidney stones. He had been requested by Wagga Base Hospital to follow up the plaintiff in relation to his hyperkalaemia.
The defendant was taken to his notes for 31 January 2019 where he advised the plaintiff to take supplements (DTB 2/217). Dr Yaramati said that the kidney condition for which the plaintiff was admitted to Wagga Base Hospital with an infection can cause problems with electrolytes in a patient's system. That, together with the plaintiff's Prolia injection for osteoporosis, meant it was important to maintain the plaintiff's vitamin D and calcium levels. Dr Yaramati also added that he had to provide supplements to the plaintiff for his osteoporosis following his cancer treatment, even though he was aware that Dr Ong had also prescribed supplements to the plaintiff.
Dr Yaramati was asked whether he considered other potential causes for the plaintiff's osteoporosis. He said the primary indication was the plaintiff's cancer treatment in the context of his retrospective history of cancer. He added that when the plaintiff was diagnosed with osteoporosis, he had in Dr Yaramati's opinion no symptoms of coeliac disease and therefore he did not consider that. Dr Yaramati was taken to various matters in the plaintiff's history including his January and December blood results, his low serum folate level, his symptoms of diarrhoea on presentation to Dr Yaramati and to Dr Ong as well as his mild anaemia and haemoglobin issues in blood tests as all indicating that he should have considered another cause for osteoporosis. In a lengthy answer, Dr Yaramati rejected this. He pointed to various factors including the plaintiff having normal red cell folate levels in the context of low serum folate levels, the fluctuation of serum folate levels, the plaintiff's history as an elderly patient with metastatic prostate cancer, his radiation and hormone deprivation treatment, his lack of voicing concerns about ongoing diarrhoea, the fact he had been sent to a specialist in Dr Ong who had referred to radiation induced cystitis and proctitis, the colonoscopies undertaken by Dr Schmidt indicating radiation induced proctitis and there being no other symptoms, in his opinion, of coeliac disease. He stated that in his opinion there was no objective evidence of coeliac disease, but the plaintiff had the classic symptoms of radiation induced proctitis including bleeding from the rectum and soft stools. He thus saw this as the reason for the plaintiff's osteoporosis. There was present in his view no reasons for screening for coeliac disease antibodies: see T434.35-T435.39.
At T436 Dr Yaramati gave the following evidence at .8-.11: "Q. Are you saying in 2015 that you believed that you could effectively disregard the serum folate levels as being diagnostically significant if the red cell folate levels were normal, is that what you're saying? A. Yes." (T436.8-.11)
Later, Dr Yaramati changed this evidence slightly at T467.49-T468.8 when he gave the following evidence in re-examination: "Q. Yes. This morning on a few occasions it was put to you words to the effect of whether you disregarded the serum folate results. That's not the case, is it? A. Disregard is not the right word from my understanding and I take it into the consideration his red cell folate is low. I didn't disregarded that. But I am reassured his red cell folate is normal, serum folate is low, I respected that as well still and I kept monitoring and I repeated the blood test again in December 2015. And I never disregarded that and-- Q. And in fact you treated it? A. Treated it as well." (T467.49-T468.8)
Throughout his evidence, Dr Yaramati emphasised the normal red cell folate levels of the plaintiff as recorded in various tests: see for example the 2 May 2018 blood test results at DTB 2/428 and T436.2.
The defendant was asked questions about why he referred the plaintiff to Dr Mackenzie. Dr Yaramati stated that when the plaintiff was admitted to Wagga Base Hospital in early 2019 he had underlying sleep issues and shortness of breath. Testing showed abnormal liver function results and he came under the care of Dr Mackenzie. Dr Mackenzie later saw the plaintiff when he left hospital: see DTB 2/599 being Dr Mackenzie's report dated 1 February 2019; T437.47. Later, Dr Yaramati gave a further referral to Dr Mackenzie even after she had discharged him from her care: Exhibit 2; DTB 2/602-605 and 608-613; T440.11-T441.29.
The defendant was then asked questions about his referral of the plaintiff to Dr Ong on 5 August 2019 where he stated that the plaintiff was "managing well" even though Dr Schmidt had indicated to Dr Ong that the plaintiff had per rectal bleeding over the previous three months: see DTB 2/606 being Dr Schmidt's 13 August 2019 report. Dr Yaramati said that although the plaintiff had had previous problems he was still in reasonably good condition and was managing himself at home and in the community outside hospital: T442.42-T443.6.
Dr Yaramati was asked whether the deranged liver function tests as obtained by Professor Mackenzie were due to malabsorption problems. He said he did not think that any malabsorption problems were related to a fatty liver condition. There was also no weight loss as would be expected with coeliac disease. Dr Yaramati indicated that no-one in the Wagga Base Hospital specialist team had guided him to focus towards coeliac disease causing abnormal liver function tests: T446.18-.41.
Dr Yaramati was taken to the plaintiff's complaints of diarrhoea symptoms in mid-2019 at the consultations on 7 June 2019 and 22 July 2019: DTB 2/233 and 235. Dr Yaramati said that he saw these as being different to the previous symptoms which had been connected to mild rectal bleeding. That was why he advised the plaintiff to obtain a CT scan and follow-up consultations with the specialist team. He saw this as a significant change in bowel function and his main concern was the potential for cancer such as bowel cancer which was the reason for the follow-up: T448.5-.40. This was particularly in the context of the plaintiff's history of metastatic prostate cancer.
When asked whether he considered the symptoms as indicating a gut disorder, Dr Yaramati said he did not and believed in the context of the plaintiff's history that it indicated potential bowel cancer symptoms which needed to be considered as a priority. He agreed that the investigation showed no evidence of bowel cancer but still some proctitis inflammation. When it was suggested to Dr Yaramati that he should have considered a gut disorder as a possible diagnosis, Dr Yaramati said that he referred the plaintiff to specialists to see what was happening in the light of his history with multiple co-morbidities. He denied that he missed a diagnosis of coeliac disease in the plaintiff at this time: T448.45-T450.37.
It was put to Dr Yaramati that if he had treated the plaintiff for coeliac disease in 2019 he would not have experienced the significant health problems in 2020 which he had. Dr Yaramati rejected that proposition and said the first Wagga Base Hospital admission in 2020 was primarily due to urinary sepsis and not related to any suggestion of coeliac disease and the second admission seemed to involve related problems. The first admission had resulted in biopsies being taken which came back negative. The second admission undertook further biopsies which were pending for potential coeliac disease: T451.6-.48. Dr Yaramati said that he did not accept the proposition because each of the hospital admissions were for reasons unconnected with the normal symptoms of coeliac disease: T452.3.
Dr Yaramati stated that the plaintiff never mentioned to him that he had been wearing incontinence pads: T452.53.
Dr Yaramati was asked a number of questions about the plaintiff's weight: see DTB 2/278 for a list of the plaintiff's weights at various times. It was put to Dr Yaramati that the plaintiff's weights were trending down. He noted that the plaintiff was receiving treatment for fatty liver disease and that his baseline body weight was between 50kg and 55kg. The last reading at a consultation was on 22 October 2020 where the plaintiff was weighed as 51.1kg.
Dr Yaramati was asked some questions in relation to the plaintiff having falls, including falls in his house: see DTB 2/234. Dr Yaramati accepted in his evidence that he was aware that the plaintiff had falls but only in the context of falls due to reasons and not unexplained falls.
It was put to Dr Yaramati that he failed to consider the potential for coeliac disease or malabsorption during the whole of the plaintiff's treatment from 2015 to October 2020. Dr Yaramati said that from 2020 the plaintiff's clinical picture had changed and the possibility of coeliac disease was raised at Wagga Base Hospital. He said that there had been in his view no indication warranting coeliac disease screening between 2015 and 2019. In relation to the histology ordered during the second Wagga Base Hospital admission in 2020 (DTB 2/667), Dr Yaramati said that the plaintiff had already left his clinic for the Corowa Medical Centre and he did not have the results while the plaintiff was there with him. He said he was aware as at October 2020 that there were outstanding histology results which he followed up through his practice. He said there were problems due to COVID-19 with results at that time: T455.11-T456.44 and T457.5-T457.49.
Dr Yaramati said that he did not consider a blood serum test at any stage in September or October 2020 for coeliac disease because the plaintiff was undertaking biopsies and he said that the "gold standard" for diagnosing coeliac disease is biopsies of the small bowel and the first biopsy had already come back negative. He was awaiting the results of the second biopsies: T458.26-.36.
In re-examination, Dr Yaramati clarified that the first blood tests in January 2015 showed that the plaintiff's B12 level was normal but his active B12 test was "mildly low" and he was reassured at that time by the two tests: T460.4-.18.
In relation to the blood tests performed in December 2016 (DTB 2/366-368), Dr Yaramati said that the blood counts there were normal with normal haemoglobin counts and normal iron which reassured him.
Dr Yaramati was asked about the plaintiff's high B12 results in December 2016. He said that if a blood test is undertaken soon after an injection you can get a higher result. It was noted that on 21 December 2016 he also gave the plaintiff a B12 injection on that day: DTB 2/169 cf DTB 2/374.
Dr Yaramati stated that he prescribed Serc to the plaintiff for symptoms of vertigo and ceased the prescription in December 2018 as the plaintiff was no longer complaining of vertigo.
In relation to the plaintiff's electrolyte issues in 2020, Dr Yaramati said they had to be seen in the context of his severe infection in his kidneys which was the cause for his admissions to Wagga Base Hospital in both 2019 and 2020.

Joint report of Dr Mackey and Dr Pitt dated 24 February 2023

On 8 February 2023, the general practitioner medico-legal experts, Dr Mackey and Dr Pitt, met in conference and a joint report was prepared dated 24 February 2023.
In substance, the two medical general practitioners maintained the opinions which they had given in their respective reports.
The joint report is lengthy and a detailed summary in these reasons of it is not necessary. The significant factors raised by Dr Mackey and his opinions on them include: 1. The blood tests conducted in January 2015 and December 2015 specifically referred to "coeliac disease" in the pathologist's comments. The tests revealed vitamin B12 and folate deficiencies as well as some liver problems. The deficiencies were abnormalities and there was no subsequent consideration of any assessment of those abnormalities. The pathology reports for January and December 2015 were significant and demonstrated "a disregard of clinical specialist advice, as no confirmatory testing was done in 2015": paragraph 1.5; 2. There was no further investigation for the cause of the deficiency in B12 and folate. If Dr Yaramati had taken up the suggestions in the pathology reports, coeliac disease would have been revealed by 2016 or even early 2015: paragraph 1.6. That is what a reasonable general practitioner ought to have done in these circumstances in the light of the low serum folate and the advice of the pathologist: paragraph 1.7; 3. The plaintiff reported long diarrhoea in October 2017 which was chronic and should have been considered: paragraph 1.26. However, the symptoms resolved within three days with Gastro-stop and the matter then did not need any further investigation assessment: paragraph 1.28; 4. While investigation by colonoscopy after the consultation on 31 August 2018 would be of assistance, a colonoscopy is an incomplete assessment for diarrhoea and the chronic diarrhoea needed to be investigated apart from the colonoscopy: paragraph 1.32. One of the potential tests and one of the causes of diarrhoea is coeliac disease: paragraph 1.38. The plaintiff by this stage also had anaemia which a man of that age should not have had and needed to be investigated: paragraph 1.41. The B12 deficiency in the plaintiff was abnormal: paragraph 2.8. Tracking the anaemia would have been the appropriate thing to do: paragraph 2.16. The 2018 symptoms were another opportunity to investigate and assess the reason for another clinical abnormality: T2.19; 5. The severe osteoporosis diagnosed for the plaintiff was far from normal: paragraph 2.28. It is one of the pointers, where unexplained, to coeliac disease: paragraph 3.2. The B12 deficiency was also a pointer. Other matters as having anaemia and having intermittent diarrhoea were also opportunities to do a coeliac test: paragraph 3.3. A reasonable GP ought to have followed up the B12 and folate deficiency in particular: paragraph 3.10. There was a whole build-up of other conditions: paragraph 3.12. The chronic diarrhoea in August 2018 was particularly concerning as by that stage the plaintiff had complained of diarrhoea on enough occasions over the previous years that it should have been looked at more specifically: paragraphs 4.11 and 4.15. The different deficiencies of the plaintiff rendered it reasonable amongst the other tests that Dr Yaramati did do to add on a coeliac test: paragraph 5.7; 6. Dr Mackey agreed that radiation proctitis was one of the strongest differentials at that time in relation to the intermittent diarrhoea of the plaintiff: paragraph 1.3; 7. The plaintiff's falls were also referable to the delayed diagnosis of coeliac disease: paragraphs 12.12 and 12.17. Dr Mackey noted that the Wagga Base Hospital discharge summary of 17 September 2020 referred to a past history of diarrhoea for 18 months of 6 to 8 episodes a day which was at variance to Dr Yaramati's medical record: paragraph 16.1. This suggests that the history of documentation by Dr Yaramati was not sufficient to understand what was going on at different stages with respect to the plaintiff's diarrhoea: paragraph 16.2.
The comments made and opinions expressed by Dr Pitt in the joint report include the following: 1. In 2015, the plaintiff did not complain of abdominal complaints but of urinary symptoms and urinary tract infections. The 30 January 2015 tests were an extensive range of blood tests not only for lower urinary tract symptoms: paragraph 1.8; 2. The plaintiff's PSA score of 230 was "incredibly abnormal" but the B12 vitamin score was only slightly under the normal range and was a "variant of normal and certainly not clinically significant": paragraph 1.9; 3. In relation to the 17 December 2015 blood tests, the B12 score at 32 was not clinically significant and there was nothing related to abdominal complaints worth following up. There were no further investigations and advice that ought to have been initiated by the defendant, in addition to what there was: paragraphs 1.11-1.13. The comment in the pathology tests relating to coeliac disease did not say that coeliac disease should be considered but rather that further testing was required for those at risk of foliac deficiency such as those already known to have malabsorption/coeliac disease: paragraph 1.15; 4. The test result suggests that the low serum folate was related to reduced dietary folate intake, not a chronic pattern of malabsorption. Therefore, the folate result did not warrant consideration or testing for coeliac disease: paragraph 1.15; 5. It was reasonable in 2015 for Dr Yaramati to accept the normal red cell folate level as both significant and reassuring: paragraph 1.22; 6. The brief history of diarrhoea on 12 July 2016 did not require further investigation. The complaints of diarrhoea in October 2017 by the plaintiff resulted in Dr Yaramati ordering appropriate tests for an infectious cause of diarrhoea for temporary or short-lived diarrhoea. The symptoms resolved at that time within three days with Gastro-stop thus the diarrhoea was not significant because of the simple management of it; 7. The 31 August 2018 presentation by the plaintiff with episodic diarrhoea was more in keeping with conditions such as functional gut disorder like irritable bowel. It was not constant diarrhoea. The plaintiff had not complained of diarrhoea for several months at that point. The referral for a colonoscopy was one of the investigations required: T1.29-T1.35; 8. It was not reasonable to undertake copious investigations for something that is happening every four to five days such as the plaintiff's episodic diarrhoea in October 2018: paragraph 1.37. Coeliac disease is something that is down the list when a patient has diarrhoea which is essentially intermittent. A GP has to be "judicious" in how they approach investigations: paragraph 1.40; 9. The plaintiff's iron deficiency and haemoglobin improved over time which does not suggest coeliac disease. The anaemia documented on 2 May 2018 was simply one of the variants of normal that often happens in pathology tests: paragraph 1.42; 10. The very mild B12 levels noted in 2015 did not give rise to coeliac disease as a likely explanation: paragraph 2.3. The active B12 levels were not clinically significant and it did not worsen between the January and December 2015 tests. One would expect the B12 deficiency if it was secondary to coeliac disease to worsen over time: paragraph 2.7; 11. The 2016 pathology tests were normal in relation to B12 and folate; 12. There was nothing in the 2017 pathology tests that is of any significance. Dr Mackey agreed: paragraphs 2.12-2.13; 13. The mild anaemia reported in May 2018 should only have been monitored. The osteoporosis reported was also in keeping with the plaintiff's history of androgen deprivation: paragraphs 2.20-2.21; 14. The anaemia level was not of concern because the plaintiff had an essentially normal haemoglobin count; 15. The plaintiff's symptoms were separated by long periods of time. The presentation at each time needed to be looked at: paragraph 3.4. That is a reason not to consider coeliac disease as other conditions are more likely to be intermittent over time. The diarrhoea was intermittent: paragraph 3.4. The changes were very mild except for the osteoporosis but there was good reason for that: paragraph 3.12; 16. The two experts agreed that there were reasonable differential diagnoses as at July 2016 and October 2017 for the plaintiff's diarrhoea. However, by 31 August 2018 different views were expressed. Dr Pitt said the diarrhoea complained of was episodic and intermittent: paragraph 4.9. That is usually consistent with functional gut disorder: paragraphs 4.18-4.21; 17. Coeliac disease was not a reasonable differential diagnosis in the period of treatment by Dr Yaramati. The chronology was not consistent with chronic diarrhoea including that the anaemia was mild and the plaintiff had normal duodenal villi on histology: paragraph 5.1-5.6; 18. The pathway to diagnosis is blood tests for coeliac serology and then duodenal biopsy as the gold standard: paragraph 6.4; 19. It was not clear when the plaintiff developed an antibody response to gluten: paragraph 7.3; 20. Radiation proctitis was one of the differential diagnoses of the intermittent diarrhoea suffered by the plaintiff. Dr Mackey agreed: paragraphs 9.1-9.3. There was no pattern of chronic diarrhoea: paragraph 11.2; 21. The plaintiff was referred to Professor Tara Mackenzie, an adult physician, who did not order coeliac disease testing despite being an experienced physician. The fact she did not consider coeliac disease in her differential diagnosis of the pattern of the plaintiff's presenting clinical features is relevant: paragraph 11.9; 22. The plaintiff's falls were mechanical and had nothing to do with coeliac disease: paragraph 12.1 and 12.16; 23. The biopsy of the small bowel in August 2020 suggested normal villous morphology and mild chronic active inflammation that was not consistent with coeliac disease: paragraph 13.1. The biopsies from 4 September 2020 were different. Dr Pitt accepted that the gluten free diet improving the plaintiff's symptoms was relevant: paragraph 14.4; 24. Dr Yaramati did not fail to exercise a reasonable care standard of care in managing the plaintiff's abdominal complaints and abnormal blood pathology: paragraphs 15.1-15.4. The B12 and folate levels were not clinically significant.

The oral evidence of the causation/damages experts

I have summarised above the conclave report opinions of the two causation/damages experts, Dr Vickers and Dr Flecknoe-Brown. Both doctors were called as expert witnesses and gave oral conclave evidence.
Each counsel was given a full opportunity to ask questions on relevant areas of the two experts. The questioning proceeded by considering particular areas relating to the plaintiff as considered in the joint report.
The first area to be considered was the January and December 2015 blood tests. The January 2015 tests revealed that the plaintiff had lower vitamin B12 levels and very low serum folate levels whilst having higher red cell folate levels (see joint report pages 38-39). Dr Vickers accepted that the January 2015 tests revealed that the plaintiff had a serum folate level of 1.9 with the normal range being more than seven. However, Dr Vickers pointed to the red cell folate level which related to the plaintiff's ingestion of nutrients in the previous three months. This showed a reasonable level. Dr Vickers expressed the opinion that the results did not fit together and suggested that there had been a poor intake of green vegetables by the plaintiff very recently whereas in the previous three months his nutrition with green vegetables had been reasonable. This pointed particularly to the plaintiff having a poor folate intake in the previous 24 hours or certainly the previous three days. Dr Vickers was of the view that the serum folate level disclosed was not consistent with the three month average as shown in the red cell folate which was normal.
Dr Vickers' attention was directed to the comments of the pathologist in the report relating to the re-collection to confirm low serum folate levels for patients at risk of folate deficiency with conditions such as coeliac disease. Dr Vickers said the pathologist had given no opinions on the two results which he described as "dichotomous": T300-T301, especially at T301.39.
Dr Flecknoe-Brown made the following comments in relation to the "dichotomy" pointed out by Dr Vickers. Dr Flecknoe-Brown stated that most pathologists over the past 10 years focused on the serum folate level with the red cell folate level only being relied on in certain circumstances. He was of the view that there was good evidence that the serum folate level accurately reflects the body's folate status. Dr Vickers said that he was not aware of the latest studies on folate and coeliac disease referred to by Dr Flecknoe-Brown, but emphasised the importance of the red cell folate measurement with the plaintiff. He stated that a three months' running average with a person with coeliac disease would show a low serum folate reflected in the red cell folate measure: T301.44-T303. Dr Vickers stated that if there was established coeliac disease, the reduction in the serum folate level should be matched by the reduction in the red cell folate level: T303.8. Dr Flecknoe-Brown referred to the comment by the pathologist which established the importance of the serum folate level as the guiding indication: T303.24.
Dr Vickers denied the proposition that the folate levels identified in January 2015 and December 2015 in the tests established that coeliac disease was a possible cause for the reading. He said he would not have considered the diagnosis of coeliac disease on a normal red cell folate level and pointed to the plaintiff's nutrition. He said he would be asking the plaintiff about his dietary intake, particularly of green vegetables.
Dr Flecknoe-Brown said that it was the lowest serum folate reading that he had seen and pointed to his extensive experience in pathology. He said it was the sort of level one saw with heavy alcoholics who were hardly eating anything. He was of the view that it demanded further investigation: T304.30. Dr Vickers said that if there was coeliac disease the reduction in the serum folate level should be matched by the reduction in the red cell folate level. Dr Flecknoe-Brown said that he would be looking for another cause of the low serum folate level in the gut if there were not dietary problems: T304.43. This would include looking for coeliac antibodies and referring the patient to a gastroenterologist for coeliac/bowel disorders: T305.
Dr Vickers did not agree and said he did not believe the low serum folate level needed further investigation as it appeared to be an isolated result having regard to the red cell folate level. However, the general practitioner would be looking at the patient's recent dietary history and whether he was depressed and/or needed to see a dietician: T305.19.
In relation to the second blood tests in December 2015, Dr Vickers said that the serum folate level had improved from 1.9 to 3.5 (report page 40) with the red cell folate level being well within the normal range. This showed that the nutrition of the plaintiff had improved over the period but not enough. If a patient had coeliac disease over this period one would expect to find a very low red cell folate measurement. Other differential diagnoses such as gut problems may be considered if a patient had other symptoms. Dr Vickers was of the view that this indicated nutrition problems not disease: T305.46-T306.24.
Dr Flecknoe-Brown was asked questions about the development in expert writing in relation to the importance of the serum folate level compared to the red cell folate level. He was not aware that the relevant writings post-dated 2015. See the reference in Dr Mackey's report as commented on by Dr Pitt in his report. Dr Flecknoe-Brown agreed that it took a while for expert views to flow out into the medical community but said this was a view well accepted in the pathology community including prior to 2015: T307-T309, especially at T308.31 and T309.30. Dr Vickers said that he never ordered a serum folate level test because he was of the view it was too short acting and too unreliable to assess long-term chronic disease. He would ask for a three-monthly red cell folate test.
Dr Flecknoe-Brown agreed that the pathology reports did not say that coeliac disease should be considered. He also agreed that they did not diagnose coeliac disease on their own: T308.40 and T309.5.
The two experts were then asked about the next steps which would be taken to investigate. Dr Flecknoe-Brown said that there would be a series of tests to determine coeliac antibodies such as were done by Dr Chan in 2020. Dr Vickers agreed that if the result of the test was very high for coeliac antibodies, one would still require a biopsy for proof of coeliac disease.
Dr Flecknoe-Brown was of the opinion that if the antibody serology tests had been conducted in 2016, he believed there was a good reason to indicate, based on the earlier tests and the later biopsies, that such serology tests would indicate coeliac disease. Dr Vickers agreed that in hindsight it was likely that coeliac serology tests in early 2016 would likely be positive and show elevated levels: T312.36 and T312.49. However, Dr Vickers qualified this by saying it would only be a qualitative opinion because the numerically high result in 2020 would have been modified by the plaintiff's previous inflammatory episodes with urosepsis: T313.30.
Dr Flecknoe-Brown agreed that proof of coeliac disease is established through a biopsy and not a blood test: T314.4. When asked about the various colonoscopies undertaken by the plaintiff between 2017 and 2020, Dr Flecknoe-Brown indicated that they were the wrong type of oscopies with colonoscopies not giving any opportunity to biopsy for coeliac disease: T314.13. Dr Vickers did not agree with this and said that the colonoscopies gave full opportunity for investigation and if a patient had severe coeliac disease one would expect to see changes in the patient's terminal ileum on a colonoscopy. He accepted that with a milder form of coeliac disease an abnormality may not be apparent: T314.26.
The experts were then asked a number of questions about the biopsies undertaken in 2020. Dr Vickers expressed the opinion that to confirm the diagnosis of coeliac disease one would like a reliable biopsy: T315.24. Dr Vickers explained the desirability of having five biopsies samples spaced out. With severe coeliac disease one would expect to see a complete change in the patient's whole gut. Dr Vickers added that it is not so important how many biopsies were taken but whether there was appropriate targeting of the abnormality of the tissue: T318.8. According to his consideration of the records relating to the August 2020 colonoscopy, it appeared that the gastroenterologist had taken "targeted biopsies" as he had noted atrophy: T317.42 (see joint report page 42 and pages 1210-11 of the defendant's tender bundle). Dr Vickers accepted that the gastroenterologists could have missed coeliac areas. He noted that the plaintiff was sick and septic and limited biopsies would be taken in those circumstances so as to not create further harm in the patient. What is taken is what is necessary: T319.6-.23. Dr Vickers rejected the proposition that the biopsies were not sufficient. They appeared to be targeted and normal villi were noted. These were taken from the small bowel (joint report pathology description page 42). These results did not suggest coeliac disease to Dr Vickers: T320.2-T321.6.
Dr Flecknoe-Brown stood by his opinion in the joint report that the gastroenterologist in taking the biopsies may have missed the evidence of coeliac disease. This is particularly because of the reference to an increased infiltrate of plasma cells in the small bowel biopsy and the reference to genetic diagnostics on pages 42-43 of the joint report setting out the test results. The increased infiltrate of plasma cells was a sign of coeliac disease in his opinion: T321.
Dr Vickers disagreed with this conclusion and said that coeliac disease would cause chronic inflammation and a shrinkage of the villi and there was no report of any evidence of lymphocytes or shrinkage of the villi. In his view there was "absolutely no evidence of coeliac disease on that biopsy": T323.3-.19. The report suggests the acute inflammation related to an acute infection or acute toxicity: T323.15. In relation to the genetic testing, this showed one relevant coeliac disease genotype being present, which was common with 40% of the population. One would need the gene being present and symptoms and antibodies. Dr Flecknoe-Brown said the genetic testing was not a diagnostic test in itself, but was a mandate to look further: T324-T325.8. However, Dr Flecknoe-Brown deferred to Dr Vickers' estimation as to why the limited number of biopsies were taken being due to the very ill health of the plaintiff: T325.26.
In relation to the second colonoscopy tests on the plaintiff's second hospital admission to Wagga Hospital which was collected on 4 September 2020 and received by the pathologists for testing on 7 September 2020 (joint report page 44), Dr Vickers confirmed that five biopsy samples were taken three weeks after the previous testing. In relation to the suggestion that these showed a marked blunting of the villi, Dr Vickers agreed but said it was consistent with infection or toxicity. When asked to compare the two results, Dr Vickers said that one could not use two normal biopsy samples in August 2020 to five abnormal samples in September 2020, some three weeks later, as establishing serious coeliac disease. In his view, the results did not suggest serious coeliac disease but an acute inflammation and showed the progression of the acute inflammation. In his view, repeat biopsies should have been taken after the inflammation had settled. He disagreed that the results were consistent with coeliac disease. Dr Vickers referred to the comment in the report (page 45 of the joint report) that the appearance of the villi "whilst not being diagnostic, is compatible with partially managed coeliac disease". He noted that the plaintiff had never been partially managed for coeliac disease such as being on a gluten-free diet for only a few weeks. The results in his view were consistent with acute inflammation: T326.11-T327, especially at T327.9.
Dr Flecknoe-Brown referred to the report stating the presence of small lymphocytes which were not in the August 2020 biopsy report, and in his view, they were a feature of coeliac disease. In his opinion the report shows that the pathologist was taking the possibility of coeliac disease seriously and it was in the front of the practitioner's mind. The plasma cells were also relevant. Whilst this was not a diagnosis of coeliac disease it was concerning: T328. Dr Flecknoe-Brown also was of the view that the presence of neutrophils in the report was a recognised feature of coeliac disease: T328.37. In response, Dr Vickers said that neutrophils were a marker of acute inflammation and were not a marker of chronic inflammation in coeliac disease: T329.3.
Dr Vickers said that looking at the two biopsy results from August and September 2020, the most likely reason for the difference was an acute toxic event. This would indicate that it was best to repeat the biopsies in December 2020. The other possibility of latent coeliac disease would be expected to be revealed in the August 2020 biopsy. The latent coeliac disease was likely in Dr Vickers' opinion to have been induced by a toxic event which has brought it out between September and December 2020: T329.30-.46. What that trigger was is uncertain. Dr Flecknoe-Brown agreed with Dr Vickers that the proper way to confirm a diagnosis of coeliac disease is a repeat biopsy after gluten exclusion for a period of time: T331.42.
In relation to the December 2020 test results obtained by Dr Chan, Dr Vickers described the level of IgA antibodies as being "off the planet" and much higher than he had ever seen. He said that this was more in keeping with a very acute event of coeliac rather than severe chronic coeliac disease: T333.18-.32 (see also Exhibit B page 250). Dr Flecknoe-Brown said that the IgA type of test was the best non-biopsy test available in pathology: T334.6. The IgA count was in Dr Flecknoe-Brown's opinion highly suggestive of untreated coeliac disease: T334.17.
The two experts then considered the effect of the absence of a diagnosis on the plaintiff. Dr Flecknoe-Brown was of the view that if coeliac disease was diagnosed in the plaintiff in 2016, he would have expected that he would be put on a gluten-free diet: T335.17. Dr Vickers agreed and accepted that it would have prevented any further damage to the plaintiff's bones but not have repaired pre-existing damage to his bones: T335.20.
In relation to contributors to any bone issues in the plaintiff, Dr Flecknoe-Brown said that contributors were the coeliac disease and the radiotherapy of the plaintiff although the calcium level due to the latter would have been assisted by the Prolia treatment: T336.22-.33. Dr Vickers thought that the main drivers of the plaintiff's bone issues were his age, prostate cancer and its treatment, with the treatment being the most likely contributor. In relation to coeliac disease, the two normal biopsies in August 2020 made, in Dr Vickers' opinion, it very unlikely that the plaintiff had lost any substantial surface area for calcium absorption through coeliac disease: T337.4-.17.
In relation to the plaintiff's falls, the doctors made reference to autonomic disease. Dr Vickers accepted that an effect on blood pressure and heart beat could be present with severe coeliac disease, although he had never heard of that as being a reason. Dr Flecknoe-Brown said that giddiness when standing up which could lead to falls showed dysfunction of the autonomic nerves and indicated that someone is more likely to have undiagnosed coeliac disease: T338.26-.41. Dr Flecknoe-Brown accepted that Mr Curran's falls were likely to have been attributable to a coeliac disease which was undiagnosed: T339.6. Dr Vickers again expressed that he had never heard of coeliac disease with autonomic disease: T339.21.
In relation to lymphoma, Dr Flecknoe-Brown said that this was in his area of specialty and the fear of lymphoma was a factor which caused a person diagnosed with coeliac disease to comply with their diet because the instance of lymphoma was increased somewhere between five and 45 times in people with untreated or poorly treated coeliac disease: T339.31. Dr Vickers said that with more recent treatment, he hardly ever saw people dying of lymphoma due to coeliac disease: T340.3.
The two doctors were then asked a number of questions in relation to the plaintiff's weight. This was in the context of Dr Flecknoe-Brown commenting in paragraph 10.3 of the joint report at page 23 that in his opinion the plaintiff was malnourished for five years and was progressively losing quite a substantial amount of weight. Dr Flecknoe-Brown stated that the plaintiff had informed him that his weight had gone down to 33kg whereas the records of Dr Chan had the plaintiff at 31kg, which was a dramatic loss of weight. Various assumptions were put to Dr Flecknoe-Brown consistent with the evidence that the plaintiff had a base weight of 54kg when he first saw Dr Yaramati and then that weight varied following hormone therapy up to 71kg before falling gradually to 51.1kg in October 2020. On that basis, Dr Flecknoe-Brown said that the increase in weight was likely due to the hormone therapy and resulted in the plaintiff being initially obese and then overweight: T342-3. Dr Flecknoe-Brown agreed that the plaintiff's weight gain would be expected to reverse after the cessation of the therapy and to normalise: T343.36. Dr Flecknoe-Brown said that on those assumptions, the plaintiff's weight loss was not as dramatic as he had thought: T345.1. He also agreed that as to the plaintiff's admissions to hospital, a bit of weight loss was possibly ascribable: T345.11. This would be particularly the case if the plaintiff had refused to eat the hospital food during admission: T345.24.
There was then consideration of the plaintiff's diarrhoea symptoms and the relevance of those to a diagnosis of coeliac disease. Dr Flecknoe-Brown referred to the various references in the consultation notes to the plaintiff having diarrhoea and described that as "quite a few episodes" (T349.1). Dr Flecknoe-Brown stated that the plaintiff was reporting many more episodes of diarrhoea than normal people have, and constancy of diarrhoea is not a feature in his experience of people with coeliac disease: T350.17.
Dr Vickers said that if one assumed that coeliac disease was the cause of the plaintiff's diarrhoea from the very beginning and it had remained untreated, then the plaintiff would have had progressive, daily, worsening diarrhoea which would not have been intermittent and would have been associated with fairly dramatic weight loss: T350.26. Dr Flecknoe-Brown responded that people often ate different things at different times and there may not have been a constant stimulus for diarrhoea: T350.35.
The court was impressed with both Dr Flecknoe-Brown and Dr Vickers. They approached the evidence, as would be expected, in a thoughtful and considered fashion and made concessions, including where they had limited expertise, as appropriate.
The Court will consider its views on their differing evidence further below.

The evidence of the general practitioner liability experts

I have already referred above to the various reports which were in evidence of Dr K Mackey and Dr C Pitt, the general practitioner medical experts relied on by the parties in the proceedings. I have also set out a summary of the opinions expressed in the joint report of Dr Mackey and Dr Pitt dated 24 February 2023.
Dr Mackey and Dr Pitt also gave oral evidence in the proceedings. Whilst some of their evidence was given jointly, further evidence was given separately by Dr Pitt in relation to the opinions expressed in his 15 April 2022 report. This was in the context of the ultimate submission made on behalf of the plaintiff that the report of Dr Pitt did not comply with s 5O of the CLA.
Aspects of Dr Pitt's report have been referred to above. From paragraph 5 in his report, Dr Pitt provided what he described as an "executive summary". In paragraph 6 of the report, for the reasons given, Dr Pitt expresses the opinion that Dr Yaramati's performance "was consistent with reasonable and competent professional practice widely accepted by peer professional opinion". From paragraph 33 in his report, Dr Pitt provides what he describes as the clinical context for chronic diarrhoea, radiation enteritis and coeliac disease. In paragraphs 56-61, Dr Pitt sets out a description of what he describes as modern Australian general practice being "an organic, broad, multilayered, dynamic and complex medical specialty". He provides some general descriptions of the role and process undertaken by general practitioners in consultations and in providing care to patients. In my view, paragraphs 56 to 61 of Dr Pitt's report could fairly be described as a very general summary.
Just prior to paragraph 62 in Dr Pitt's report, the question asked of him by the solicitors for the defendant is set out. This makes a distinction between whether Dr Yaramati's care and management of the plaintiff was consistent with competent professional practice on the one hand and whether Dr Yaramati's care and treatment of the plaintiff was reasonable in the circumstances on the other hand. The question appears to recognise the fact that s 5O of the CLA in referring to the standard of care for professionals provides in s 5O(1) that a person practising a profession does not incur a liability in negligence arising from the provision of a professional service "if it is 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".
The difficulty in the present case, which will be considered further below, is that services were provided by Dr Yaramati to the plaintiff over nearly a six year period. The case did not involve, unlike in some alleged medical negligence cases, a one-off alleged negligent act or omission.
Despite the question asked by the solicitors for the defendant appearing to make a fairly clear distinction between competent professional practice on the one hand and reasonable care and treatment on the other hand, the format of Dr Pitt's opinions was set out in a fashion which did not on its face clearly appear to make the distinction. For example, in paragraph 62 of his report, Dr Pitt expresses the opinion that Dr Yaramati's care and management of the plaintiff between 2015 and 2020 "was consistent with reasonable and competent professional practice widely accepted by peer professional opinion". In paragraph 62, Dr Pitt notes, in my view appropriately, that the consultations between Dr Yaramati and the plaintiff are numerous and an in depth analysis of each consultation would be unwieldy.
It was the combination by Dr Pitt of the concepts of "reasonable" and "competent professional practice widely accepted by peer professional opinion" which was focused on by counsel for the plaintiff in a separate cross-examination of Dr Pitt.
In answering questions relating to particularly paragraph 62 of his 15 April 2022 opinion, Dr Pitt said that he did not see the difference as an expert medical witness between competent professional practice and reasonable care: "So I mean competent to me is just that, it is that, it is purely what the standard understanding of what competence really is, that you can do the job that you've been asked to do and do it well. Reasonable is, you know, again whether someone is acting in a way that others would act around him, to that peer professional standard. So I, personally I don't see the difference between them from a clinical point of view. From my point of view they are essentially just slightly different ways of saying one and the same, and in that sense it possibly is that I am bringing the two together into one, but in a way that is my understanding of the words in terms of the standard that I'm comparing him to. (T479.20-.28)
Dr Pitt expressed the opinion that Dr Yaramati did comply with a practice that was widely accepted with an appropriate assessment of the plaintiff's presenting symptoms, concomitant features, background history and physical signs on examination with tests and investigations. He indicated that that was what he expected from a general practitioner performing to the standard of their peers and was of the view "that is reasonable and competent".
Dr Pitt was taken by counsel for the plaintiff to paragraph 57 of his report dated 15 April 2022 (DTB 1/44) and was asked whether the matters referred to in that paragraph were intended by him to summarise a practice which should be adopted by a competent medical practitioner in every consultation. Dr Pitt said that this was not the case but that elements set out in that paragraph are involved in modern medical practice by a general practitioner. He emphasised that a general practitioner must have a different approach to hospital or specialist care. He stated that how the aspects referred to in paragraph 57 are applied in each consultation or series of consultations depends on the context and surrounding variables of the patient. He agreed that what was in paragraph 57 of his report was a general statement of the structure of the operation of general practice. Consultations with a general practitioner are informed by and are built upon previous consultations with the patient. A general practitioner provides in Dr Pitt's opinion a continuity of care of the patient.
Dr Pitt was then taken to paragraph 60 of his report (DTB 1/45). He confirmed in his evidence that a general practitioner will formulate a number of possible differential diagnoses for a patient. Dr Pitt said that this was only one of the things undertaken by a general practitioner. In addition, the general practitioner needed to facilitate the patient's "agenda" to work out the fundamental goal of how best to manage the issues presented by the patient. This did not always need to involve a diagnosis of the plaintiff's condition.
Dr Pitt was then subject to an extensive cross-examination in relation to particular aspects of the care by Dr Yaramati of Mr Curran. In general terms, during the course of his cross-examination Dr Pitt maintained the opinions expressed by him in his first report and in the joint report with Dr Mackey.
Dr Pitt was taken to paragraph 71 of his report (DTB 1/47) where he refers to the plaintiff's "probability diagnoses" as at July-August 2019 as including further cancers such as bowel cancer, worsening radiation enteritis or possibly inflammatory bowel disease. He was asked whether it was established practice at the time for general practitioners to undertake probability diagnoses. Dr Pitt, after outlining different models of practice available to a general practitioner, emphasised the importance of context, the patient's history, the examination and testing to refine the various hypothetical diagnoses and to narrow down to what were likely potential diagnoses: T490.28-T491.12.
Dr Pitt agreed that in relation to paragraph 71 of his report, these were the plaintiff's "probability diagnoses" as at July/August 2019, being the three most likely differential diagnoses at the time although there could be others: T491.30.
In relation to the suggestion that once differential diagnoses were "on the table" for a patient, it was up to the general practitioner to investigate the possibilities and to consider and potentially exclude them, Dr Pitt agreed but said that was an incomplete analysis. What the patient wants to do and what they can and cannot do is also relevant. The possible diagnoses need to be investigated and managed in the context of the patient which may involve referring the patient to a specialist or prescribing medication. The patient may not wish to continue and ultimately the patient is the key driver to their own health. Symptoms may need to be investigated or managed. Dr Pitt agreed that while the differential diagnoses needed to be raised with the patient it was hard to be definitive and only the more likely ones would have to be raised: T491.48-T492.49.
Dr Pitt agreed that in deciding if a doctor had complied with accepted practice in Australia at the time one needed to look at each consultation but in the context of the chronology or timeline of the patient's history and presentation: T493.39-T494.8. Dr Pitt rejected the suggestion that his opinion in his report was conclusionary and not based on the underlying facts: T494.44. He said he reviewed each consultation between Dr Yaramati and the plaintiff and the context of the consultations and the overall picture of the plaintiff. Having reviewed the material and the chronology of the overall picture, he was of the opinion "with good evidence and with some surety, that Dr Yaramati's performance was reasonable and competent": T495.10-.17.
Dr Pitt noted that as at July-August 2019, Dr Yaramati recorded a specific complaint by the plaintiff of ongoing diarrhoea. Dr Pitt expressed the opinion that Dr Yaramati conformed with competent professional practice by arranging for blood tests with the intent of referring those investigations to assist specialists with the review and management of the plaintiff: T497.24. In particular, Dr Pitt expressed the opinion that in the circumstances the "gold standard" approach was to refer the plaintiff for a colonoscopy in relation to the three probability diagnoses he had referred to in his report: T497.47 and T498.2. Dr Pitt expressed the opinion that it was the gold standard at this time to investigate whether or not the plaintiff had bowel cancer or radiation enteritis or inflammatory bowel disease. He stated that coeliac disease was not an inflammatory bowel disease: T498.47. For the colonoscopy, a referral could be made to a gastroenterologist or a general surgeon such as Dr Schmidt who the plaintiff had previously seen: T499.40. Dr Pitt said that he did not agree that coeliac disease was a differential diagnosis which should have been made by Dr Yaramati at this time: T500.10; T500.20. If coeliac disease was considered as a potential differential diagnosis, Dr Pitt said that you would not necessarily refer a patient to a gastroenterologist straight away but would undertake coeliac serology testing first: T500.13.
Dr Pitt was taken to paragraph 50 of his report (DTB 1/43) where he refers to coeliac disease having a "broad and subtle presentation" with the approach to the diagnostic challenge of coeliac disease in general practice being "nuanced". Dr Pitt gave evidence that coeliac disease was a difficult disease to diagnose and sometimes posed difficulties for specialists. There are, in his view, a variety of ways in which coeliac disease could present but it was a very challenging condition sometimes: T502.8.
Dr Pitt was then taken to his reference in his report to an article by Tye-Din in 2018 which suggested that patients with certain conditions should be offered serological testing for coeliac disease. The conditions listed included "unexplained iron, vitamin B12 or folate deficiency". Dr Pitt said the more of these features that were present in testing would be more likely to warrant coeliac testing, but it depended on the context of the patient, the severity of the deficiency and the other features presented: T502.38. Some deficiencies could merely be a variation of normal and an interpretation of the test results was needed. However, further consideration was needed if there was an "unexplained" deficiency: T503.11. Similarly, the significance of diarrhoea symptoms would depend on the presentation in the patient: T503.16. Dr Pitt expressed the opinion that Dr Yaramati's notes provided him with sufficient detail about the nature of the presentation of the plaintiff's diarrhoea to form an opinion as to what would have been competent professional practice at the time: T503.37. Having regard to the plaintiff's presentation with diarrhoea in the June to July 2019 period, Dr Pitt expressed the opinion that Dr Yaramati's actions including the referral to specialists were appropriate. This was management by Dr Yaramati of the condition: T505.42-T506.7.
Dr Pitt stood by his opinion in paragraph 71 of his report that one possible probability diagnosis was inflammatory bowel disease even when Dr Schmidt in her colonoscopy report of 11 April 2018 had referred to mild sigmoid inflammation: DTB 2/592. Dr Pitt said the colonoscopy report did not mean that the presentation in July/August 2019 of the plaintiff could not have been inflammatory bowel disease: T508.24. Dr Pitt also was of the view that bowel cancer needed to be excluded as a differential diagnosis as at June/July 2019 even taking into account the colonoscopy report of Dr Schmidt of 11 April 2018. This was in the context of the plaintiff's overall clinical history: T509.20-T510.6.
Dr Pitt was then taken to Dr Schmidt's colonoscopy report for 29 October 2018 for the plaintiff which disclosed no polyps and a recommendation of a repeat colonoscopy in two years' time: DTB 2/595. Dr Pitt was still of the opinion that the worst case scenario of bowel cancer should have been excluded and it was one of the differential diagnoses at the time of July/August 2019 which needed to be considered: T510.43- T511.7. Dr Pitt then was asked whether in the light of the colonoscopies, only the three differential probability diagnoses in paragraph 71 of his report should have been considered in accordance with competent professional practice in July/August 2019. He said that the patient's presentation needed to be looked at in context in the light of the whole picture. While there could be other diagnoses, one needed to look at the potential probabilities. A referral was appropriate even if no diagnosis could be made by Dr Yaramati: T511.50-T512.21.
Dr Pitt was then asked a number of questions about the plaintiff's blood results in 2015 and 2016, particularly in relation to the serum folate and B12 results. Dr Pitt stated that the B12 results for the plaintiff were just below the reference range although the serum folate level was low. However, he said that the serum folate result had to be looked at in the context of the red cell folate results which were normal and thus the serum folate level was not "clinically significant" warranting further consideration: T513.14-.23. Dr Pitt also expressed the opinion that the reference to eight episodes of "runny stool with no bloods" in the Wagga Base Hospital discharge summary (DTB 2/622) of January 2019 was not relevant or clinically significant: T514.30; T514.37; T515.3-.15. The diarrhoea complained of in August 2018 was several months previously. Dr Pitt also expressed the opinion that the runny stool episodes referred to in January 2019 were not relevant at all as the admission was for urosepsis and the plaintiff was very unwell because of this: T515.23-.38. The plaintiff's symptoms of vomiting and diarrhoea were in keeping, in his view, with the presentation of urosepsis: T515.31.
In relation to the placement of the plaintiff on Questran Lite in July 2019 by Dr Yaramati, Dr Pitt expressed the opinion that this was purely symptomatic relief for diarrhoea whilst the plaintiff was referred to specialists for further investigation: T516.15.
It was put to Dr Pitt that as at July 2019, Dr Yaramati, consistently with competent professional practice, ought to have considered other causes for the diarrhoea including the potential for coeliac disease. He rejected this suggestion and was of the view that there was not enough clinically relevant information to suggest coeliac disease. The B12 result was a variation to normal and the serum folate level had to be seen in the context of the normal red cell results which would have been reassuring. The plaintiff's osteoporosis could have been connected to the androgen deprivation therapy the plaintiff was placed on during his cancer. There were also other more plausible explanations for the plaintiff's diarrhoea symptoms. Dr Pitt said it was reasonable to consider those matters and not coeliac disease at the time: T517.16. Dr Pitt expressed the opinion that there was certainly no indication that prospectively one would be considering coeliac disease in the circumstances: T517.36.
It was put to Dr Pitt that the supplements for low serum folate and B12 given by Dr Yaramati to the plaintiff increased the results levels and thus suggested there was no reason to test for coeliac disease. He agreed with that proposition but said that the 2015 test results themselves did not reveal a deficiency indicating coeliac disease in the context of the plaintiff's other symptoms: T519.33. Further, as the plaintiff's red cell folate level was still normal, one could not regard the serum folate level as being "unexplained" and thus suggesting coeliac disease: T523.1-.19. Dr Pitt also placed particular emphasis on the pathologist's comments in the test result for serum folate and red blood cell folate of 2 May 2018 to the following effect: "Suggest specimen re-collection to confirm low serum folate level for patients at risk of folate deficiency with conditions such as macrocytic anaemia, malabsorption or coeliac disease. If serum folate levels are persistently low, then red cell folate may be indicated" (DTB 2/428).
Dr Pitt said that in the present case the red cell folate test was undertaken and was within the normal range: T523.46-T524.6. Dr Pitt expressed the opinion that a good competent reasonable general practitioner in Australia at the time would have regard to that pathologist's comment and would consider the red cell folate "to be reassuringly normal": T524.6. Dr Pitt said that a competent reasonable general practitioner as at mid-2018 would consider all of the context and decide whether on the probability a coeliac serology test or any other particular test was relevant or desirable: T524.29. Dr Pitt also expressed the opinion that what Dr Yaramati did was "perfectly reasonable and competent" and overall had met the standard of a reasonably competent general practitioner because of the way he approached the plaintiff at each stage through the chronology: T524.2 and .15. Further, Dr Pitt expressed the opinion that it would be widely accepted in Australia as competent professional practice at the time not to offer coeliac serology testing in the circumstances of the tests in 2015 and 2018 because all the factors known did not add up to "a contention of coeliac disease": T525.43-T526.18. He stated the opinion that Dr Yaramati's "performance was appropriate": T526.14. He was also of the view that there was no clinically relevant deficiency in B12 or serum folate having regard to the red cell folate results: T527.4-.43. In the end, Dr Pitt expressed the opinion that the serum folate level in 2015 was irrelevant: it was low but the red cell folate level was normal: T527.46-T528.8.
Dr Pitt was then taken to the joint conclave report at paragraphs 1.16-1.20 at DTB 1/36. The 2018 article relating to red cell folate quoted by Dr Mackey post-dated the 2015 test period. Further, even though the article was published in 2018 that did not mean, according to Dr Pitt, that it became immediately known and accessible to general practitioners. In his view, general practitioners who had seen the results would have paid particular regard to the pathologist's comments such as reflected in the 2 May 2018 tests at DTB 2/428 relating to a red cell folate test. Commentary in an article would not instantly become the general practice standard for general practitioners to adopt.
Dr Pitt rejected the assertion that having regard to the blood tests in 2015 and 2018 and the plaintiff's symptoms up to the middle of 2019 that a reasonable general practitioner consistent with competent professional practice ought to have considered a malabsorption disorder. In his view, the earliest that could have been would have been the middle of 2020: T533.9.
It was put to Dr Pitt that such an approach was "irrational" which he denied. He expressed the opinion that it would have been irrational for a general practitioner to order a test for a disease where the factors present with the patient were not clinically significant as at 2019: T533.23; T536.1. Dr Pitt expressed the opinion that it was not irrational not to have considered coeliac disease as at 2019 based on the previous chronology and the plaintiff's then presentation: T536.14.
In re-examination, Dr Pitt confirmed that he expressed the opinions in his report after taking into account Dr Yaramati's consultation notes and the assumptions in Appendix C to his report.
Dr Pitt later gave evidence jointly in conclave with Dr Mackey.
In general, it would be fair to summarise the oral evidence given jointly in terms that Dr Mackey and Dr Pitt in substance retained the views which they had expressed in the joint report.
Dr Mackey expressed the view that blood tests for serum folate levels and red cell folate levels were different tests. He said that serum folate levels were usually regarded as the more important test. The serum folate level tests reported on the take up by cells of folate. If serum folate levels were low, then there was not a lot of serum to make new red blood cells. He initially described the 2015 results relating to the plaintiff as being "unusual" (T551.19) but then said the 30 January 2015 serum folate results were "very, very low" and the December 2015 results were still "very low" (T551.34). He said the red cell folate levels were generally accepted as having an accuracy which was "more questionable" (T551.45). Dr Mackey did not regard the pathologists' comments relating to red cell folate tests being indicated if serum folate levels were "persistently low" (eg DTB 2/295) as ameliorating the low levels of serum folate in the test results for the plaintiff. Whilst accepting that the red cell folate levels were "somewhat reassuring", and there could be a number of causes for the low serum folate levels, Dr Mackey said that poor dietary intake could not be a sure reason.
Dr Pitt retained his view as to the 2015 blood tests as set out in his report. He believed the low serum folate levels of the plaintiff were likely due to a poor dietary intake in the light of the red blood cell folate results. He noted that serum folate levels were very sensitive to recent dietary intake and that red cell folate levels at the time were regarded as a better guide to folate levels. He was of the view that most general practitioners would take the pathologists' comments in the reports on face value. Here, red cell folate testing had already occurred, and the results were normal. He also stated that the 2018 article referred to in Dr Mackey's report as to red cell folate tests well post-dated the 2015 results and was not a publication which most general practitioners in Australia would consult.
Having considered the differing opinions as to the comments of the pathologist in the reports as to folate testing, I prefer the opinion of Dr Pitt.
The pathologists' comments in the two reports appear to recommend red blood cell folate testing if serum folate levels were "persistently low". That would tend to suggest levels being low over some period and then to recommend the need for further, more detailed testing through a red blood cell folate test. However, here, the red cell folate levels were tested and were above the base normal level of 150: see DTB 2/295; 338. I find, as suggested by Dr Pitt, that a reasonable general practitioner would accept the pathologists' comments on face value at the time. Dr Pitt also emphasised that the pathologists did not say in the reports that the low serum folate levels were indicative of coeliac disease. Dr Pitt indicated that the red cell folate levels provided information in relation to the plaintiff's long-term as opposed to recent term dietary intake of folate foods. He was of the view that if there were malabsorption problems suggesting coeliac disease, the plaintiff's red cell folate levels would also be low. Thus, in his view, the red cell folate test results were contra indicative of malabsorption problems and the plaintiff was absorbing folate. Dr Mackey agreed that the red cell folate test results indicated that there was some absorption of folate by the plaintiff, although the low serum folate levels were both of concern.
Dr Pitt also referred to the full blood tests results at DTB 2/292 which show in his opinion that the size of the red blood cells of the plaintiff were normal and indicated no pattern of malabsorption. He agreed with Dr Yaramati's view on this point. Dr Mackey was of the view that one MCV red blood cell test was not important in the long term.
The two experts then considered the plaintiff's anaemia as reflected in the low haemoglobin count in the blood tests: DTB 2/419. Dr Pitt was of the view that these test results varied over time and the low haemoglobins were not clinically significant. Dr Mackey took a different view and said the results were significant as they were abnormal. He said the abnormality indicated that "something was going on" to cause the problem with there being a number of potential causes for the results.
Dr Pitt pointed to the various results in the haemoglobin tests as showing that the haemoglobin count was going up and down and was thus not clinically significant. See DTB 2/444.
The two experts essentially disagreed as to the significance of the lower haemoglobin count for the plaintiff in the various tests. See also DTB 2/449, 470, 486, 492 and 504.
The two experts then considered other medical conditions of the plaintiff as possibly constituting causes of the plaintiff's anaemia such as radiation induced proctitis causing rectal bleeding. Dr Mackey saw the various references in the specialists' reports as indicating very mild rectal bleeding not justifying the plaintiff's anaemia. Dr Mackey said that the mild conditions would not be expected to change the plaintiff's haemoglobin count. Dr Pitt disagreed, making reference to the plaintiff's per rectal bleeding as reported in a number of the reports. He also raised the possibility of microscopic blood loss over time through the proctitis which can cause anaemia and cannot readily be seen by a patient. Dr Mackey said that there was no evidence of microscopic bleeding.
The experts were then asked a number of questions about the plaintiff's diagnosed osteoporosis: see DTB 2/435 being the bone mineral density test for 15 November 2018 for the plaintiff. Both experts accepted that the test indicated that the plaintiff had osteoporosis. However, Dr Pitt was of the view that this score could be explained by the plaintiff's hormone therapy in response to his radiation treatment even in the context of having vitamin D supplements. Dr Mackey was of the view that the results, despite the supplements, showed that the supplements were not good enough to treat the patient's bone density issues and that something else was "going on" which needed to be investigated. He said he would seek advice from Dr Ong as the treating radiologist on this issue: T582.44. Dr Mackey said that there were various differential diagnoses available for the osteoporosis with malabsorption being one of those available. Dr Pitt was of the view that he would not look at alternative causes for the osteoporosis as, on the plaintiff's history, the cause was very likely to have been the androgen deprivation therapy. In general, if a doctor had available a really good cause for a particular result, one would likely not go beyond that.
There was no clear evidence as to what Dr Ong's advice would have been if there was a referral to him on this issue.
The experts then looked at the plaintiff's lower B12 levels in the 2015 results. Dr Pitt was of the view that the active B12 level of 32 as at 30 January 2015 was not clinically significant: DTB 2/291. His view was the same as to the similar level as at December 2015: DTB 2/337. Dr Pitt expressed the opinion in his oral evidence that if the plaintiff had coeliac disease that he would have expected the active B12 level to have worsened over time, but it did not. He said it was therefore not necessary to investigate the slightly lower B12 level revealed in the 2015 tests any further. Dr Mackey disagreed with this and said that coeliac disease did not involve a continuous downhill deterioration in the plaintiff's condition. Fluctuations in B12 levels occurred. He accepted that the active B12 level in both tests was the same and did not involve a deterioration. He accepted that there could be variations.
Dr Pitt said that the test results were not clinically significant and even if there were fluctuations, coeliac disease would involve malabsorption issues. If there were malabsorption problems, one would expect the B12 level to be lower in the December 2015 tests.
Essentially the two experts disagreed on this issue.
I found Dr Pitt's reasoning on this issue to be more persuasive than that of Dr Mackey and I accept it. The active B12 levels of the plaintiff were the same in the test results in January 2015 and December 2015. Whilst I accept Dr Mackey's opinion that Active B12 results may fluctuate even with coeliac disease, there was a 10 months' period between the two tests. In my view, it was reasonable for Dr Yaramati not to undertake further tests having regard to the fact that the active B12 levels had not deteriorated over that period and that the level was only slightly below normal. I accept the opinion of Dr Vickers and Dr Pitt that coeliac disease is an ongoing disease involving deterioration in villous functioning creating malabsorption issues. The position may have been different if there had been a significant deterioration in the active B12 levels in December 2015.
There was then considerable questioning of the experts relating to the plaintiff's diarrhoea symptoms. Again, both experts adhered to the views which they had given in their various reports. Dr Mackey was of the opinion that diarrhoea symptoms were strongly associated with coeliac disease, and this should have been looked into further by Dr Yaramati, having regard to the various references to diarrhoea and loose stools by the plaintiff from 2016 onwards. Dr Mackey, in the light of various assumptions put to him, rejected the likelihood of the diarrhoea being caused by radiation proctitis, certainly after early to mid-2018. However, evidence given on the voir dire that was admitted as evidence in the trial, showed Dr Mackey to have limited experience with patients with radiation proctitis in the period from 2000 to 2020. He emphasised that there was no evidence that the radiation therapy had affected the small bowel, large bowel and colon of the plaintiff.
Dr Mackey accepted that the diarrhoea in the plaintiff could be caused by inflammatory bowel disease or malabsorption. He said that if the diarrhoea was not caused by radiation proctitis, a reasonable general practitioner would need to consider other potential causes, including malabsorption. Dr Mackey accepted that up to early to mid-2018 it was reasonable for Dr Yaramati to assume on the plaintiff's history that the diarrhoea symptoms could have been caused by radiation proctitis. See paragraph 9.3 of the joint report at PTB 2/69. In the course of his evidence, Dr Mackey expressed the opinion that colonoscopies were not useful in diagnosing coeliac disease: T611.30; T612.1. In Dr Mackey's view, radiation induced proctitis would generally settle and diarrhoea symptoms would cease: T612.11. He agreed, however, that he would defer to the opinion of a gastroenterologist as to how to diagnose coeliac disease: T610.35.
Counsel for the defendant then asked a number of questions of Dr Mackey in relation to his opinions concerning the plaintiff's diarrhoea symptoms suggesting coeliac disease. Dr Mackey confirmed his view in his November 2022 report that by August 2018 the plaintiff's diarrhoea was recurring regularly. However, despite this being his view, he agreed that he did not set out in his report a detailed analysis of the basis for this view. Dr Mackey agreed that it was reasonable management for Dr Yaramati in August 2018 to refer the plaintiff to a specialist for consultation in relation to his diarrhoea symptoms and accepted that Dr Yaramati was not reluctant to make referrals to specialists for advice. Dr Mackey also referred to earlier liver function tests for the plaintiff which he claimed were abnormal or deranged although he did not refer to them in his report. In her 1 February 2019 report letter, Professor Mackenzie noted that the plaintiff's liver function tests were normal in 2016: DTB 2/599. Dr Mackey criticised Dr Yaramati for not referring to the earlier liver function tests in his referral.
Dr Mackey rejected the assertion that the cause of the plaintiff's diarrhoea as being untreated coeliac disease was purely an assumption by him. He expressed the opinion that potential malabsorption problems should have been considered by Dr Yaramati earlier. He rejected the opinion of Dr Vickers that coeliac disease involved a progressive daily worsening of a patient's position, including involving diarrhoea symptoms. However, Dr Mackey accepted that diarrhoea symptoms causally related to coeliac disease were often associated with significant weight loss as it was a fluctuating disease: T629.3.
Dr Pitt expressed a different opinion. He described coeliac disease as a progressive illness which did not wax and wane although the symptomatology varied: T630.1. He disagreed that coeliac disease involved fluctuating pathology as over a long period it was a progressive illness: T630.10.
Dr Pitt was then asked some questions about whether the plaintiff's symptoms in 2019-2020 of diarrhoea were reasonably explicable due to radiation proctitis. Dr Pitt said that this was one of potential differential diagnoses for the diarrhoea but there were other potential diagnoses such as irritable bowel syndrome or a gut disorder. He emphasised that the plaintiff had symptoms of radiation proctitis right up to 2019-2020: see DTB 2/661 in relation to the September 2020 colonoscopy report. Dr Pitt said that a general practitioner would look at symptoms and history at the relevant time and follow what was likely to be a reasonable or likely diagnosis. He did not believe it was reasonable for Dr Yaramati to consider malabsorption syndrome until late 2020: T631.15-.31 and T632.7-.21.
Both experts were asked by the Court questions about the absence of recommendations from the specialists involved in the case to obtain coeliac serology testing. Dr Mackey said that usually a specialist conducts an investigation in their area of specialty and focused on the terms of the referral: T634.23-.34. Dr Pitt said that this was taking a too narrow view of specialists who in his experience would give advice on relevant testing or order the testing themselves if they considered it appropriate: T635.33-T636.20. In relation to the referral by Dr Yaramati to Professor Mackenzie dated 5 August 2019 which is part of Exhibit 2, Dr Pitt referred to the fact that the plaintiff was recorded as taking the Questran-Lite medication. See also Dr Pitt's answer at T639 and at T640, especially at T640.43. Accordingly, Professor Mackenzie was aware of the medication.
Both experts were asked questions in relation to the colonoscopies which were performed on the plaintiff and disagreed as to whether they provided a basis for the plaintiff's continuing diarrhoea symptoms. Dr Mackey expressed the view that whilst it was reasonable for Dr Yaramati to point to the radiation proctitis as being an answer for the diarrhoea symptoms up to early 2018, there was not sufficient evidence for that cause of the diarrhoea after that time and further investigation should have occurred. Dr Pitt took a different view and said radiation proctitis was still extant in the September 2020 colonoscopy.
In relation to specialists, Dr Pitt said it was very reasonable for Dr Yaramati to rely on the collective view of specialists in relation to the plaintiff and to place weight on their views. This included the absence of advice from specialists to undertake coeliac serology tests. This was particularly the case with the physician Professor Mackenzie: see T651.27. Dr Mackey was of the view that Dr Yaramati referred the plaintiff to specialists in an appropriate manner and he was disappointed as to the failure by Professor Mackenzie to recommend testing for coeliac disease but was of the view that Dr Yaramati still had an obligation to form his own view of the plaintiff's symptoms as a whole: T651.50-.20. See also T653.32. I found Dr Pitt's evidence on the absence of specialist advice to be far more persuasive than that of Dr Mackey. In the present case, no specialist is recorded as referring to coeliac disease until August 2020.
Dr Mackey was then asked by counsel for the defendant various questions about the plaintiff's weight changes. He did not appear to have undertaken a detailed analysis of the plaintiff's weight changes for the purposes of his written report.

The submissions of the parties

Having regard to the complexity of the factual issues to be determined by the Court, the Court was assisted by written submissions provided by the parties.
In the written submissions provided by counsel for the plaintiff dated 20 October 2023, various factual aspects of the evidence were referred to concerning the background, evidence in respect of the plaintiff's diarrhoea symptoms, the folate and B12 blood results for the plaintiff, the plaintiff's osteoporosis issues and the plaintiff's abnormal liver function tests as well as electrolyte imbalances, hypertension and anaemia.
In general summary, the plaintiff made the following submissions in chief: 1. The plaintiff alleges that the defendant failed to conduct screening for coeliac disease whilst the plaintiff was under his care in circumstances where his presentation, test results and general health history required such testing (written submissions paragraph 5); 2. Earlier testing would have led to a gluten-free diet for the plaintiff and an improvement in the plaintiff's general health rather than the deterioration in his health which occurred from 2015 to 2020 (paragraph 6); 3. There was extensive evidence of the plaintiff having ongoing diarrhoea symptoms; 4. The folate levels and B12 results for the plaintiff should have led Dr Yaramati to undertake further testing; 5. The plaintiff's osteoporosis, electrolyte imbalances, hypertension and anaemia were due to malabsorption problems; 6. The risk of harm relevant to the matter was the risk that illness and injury would occur if the plaintiff's gastrointestinal condition remained undiagnosed. That risk of harm was foreseeable to a general practitioner and was not insignificant. Precautions for testing were readily available including appropriate coeliac disease serology testing and dietary advice; 7. There was a breach of duty of care by the defendant by failing to take precautions which were readily available in the light of the potential for serious harm to the plaintiff (paragraphs 21-24); 8. The evolving nature of the plaintiff's complaints from 2015 to 2019 should have obliged the defendant to undertake alternative inquiries for other diagnoses and additional testing. The plaintiff did not state that he had any dietary issues. The majority of the plaintiff's complaints continued without a cause being diagnosed. The evidence of Dr Mackey should be preferred to that of Dr Pitt. The evolving nature of the plaintiff's condition, not the individual symptoms, required more to be done to understand the cause of the symptoms including testing for a malabsorption disorder (paragraphs 25-32); 9. The s 5O defence should be rejected. The matters particularised for the defence were general in nature as was the wide and unspecified opinion of Dr Pitt. The type of generalised declaration relied on and made by Dr Pitt vitiates a proper reliance on s 5O: Sparks v Hobson [2018] NSWCA 29 at [28]; 10. The present case was not a case to which s 5O was directed to protect. It was simply the case of an alleged failure to order a test where the unique circumstances of the patient over a long period of time reasonably required the test to be performed; 11. In relation to causation, both Dr Vickers and Dr Flecknoe-Brown agreed that if coeliac serology testing had been performed in 2016 it would likely have been positive. A gluten-free diet would likely have been tried even if a biopsy was negative and the antibodies level was high. If the plaintiff was put on a gluten-free diet in 2016 then the acute conditions in 2020 would not have occurred and the plaintiff would have had an improvement in his medical condition from 2016 (paragraphs 37-43); and 12. In relation to damages, but for the defendant's negligence, the plaintiff would have avoided the effects of his coeliac disease from the date of diagnosis which at the very latest would have been in 2019. The plaintiff became systemically unwell, was placed in danger of an early death, and was exposed to unnecessary procedures and hospitalisation which must be reflected in damages.
Counsel for the defendant provided detailed written submissions dated 6 November 2023. These submissions provided an evidential summary in relation to the various matters raised by the plaintiff concerning the medical conditions or problems of the plaintiff.
In summary, the defendant made the following responsive submissions in the written submissions dated 6 November 2023: 1. Dr Pitt has provided in his report a detailed and structured prospective evaluation of the defendant's management of the plaintiff, whereas the evaluation undertaken by Dr Mackey was retrospective and inevitably biased and made without identification and analysis of the facts on which the opinion is based. Dr Mackey's opinions were given particularly without contextual reference to the severe comorbid illnesses suffered by the plaintiff; 2. The assessment of the defendant's management of the plaintiff's health and identification of causally relevant symptoms requires consideration of the issues addressed by the experts including the significance of coeliac serology testing, radiation enteritis, the reliability of colonoscopies and biopsies and the diagnosis of latent coeliac disease and its longitudinal course; 3. The reference to abdominal complaints by the plaintiff by Dr Mackey in his report is not justified. There is no reference in the defendant's clinical notes of any complaint by the plaintiff of abdominal pain in any year. In 2015, the plaintiff complained of urinary problems and multiple urinary tract infections. The reference by Dr Mackey to abdominal complaints is not identified and has no evidentiary basis; 4. The evidence does not establish that the plaintiff was suffering from diarrhoea recurring regularly. The plaintiff's evidence in all respects was unreliable. He had a very poor recollection. However, the plaintiff in his oral evidence confirmed that it was not until he was very sick in 2020 that he was experiencing diarrhoea regularly. The alleged 18 month chronic history recorded in the Wagga Base Hospital discharge summary was not established by the evidence. The defendant's clinical records are more likely to be accurate and reliable. The plaintiff's presentations with diarrhoea were discrete, intermittent episodes that were generally associated with per rectal bleeding; 5. The court should accept Dr Pitt's view that the plaintiff's probable diagnosis was initially a functional gut disorder and later radiation proctitis, which was confirmed by multiple colonoscopies. The plaintiff was unable to recall informing doctors at Wagga Base Hospital of an 18 month history of diarrhoea. The plaintiff said that if he had that, he would have informed the defendant. Dr Yaramati should be accepted that he was never informed by the plaintiff of chronic diarrhoea for 18 months. 6. Further, Dr Vickers' evidence should be accepted, as the only specialist gastroenterologist in the case, that progressive coeliac disease would not have involved intermittent diarrhoea but regular diarrhoea with a fairly dramatic weight loss. Dr Pitt confirmed the progressive nature of the disease. Dr Mackey's fluctuant pathology hypothesis was not persuasive; 7. The plaintiff had radiation proctitis which accounted for haematuria and diarrhoea with rectal bleeding. This was confirmed as late as the colonoscopy performed on 4 September 2020. Dr Mackey's alternative view should not be accepted. Radiation as a cause of the diarrhoea was reasonable; 8. The plaintiff's prostate cancer and its treatment with hormonal anti-androgen therapy was a sufficient explanation for the most likely cause of the plaintiff's osteoporosis in the absence of clinical features of malabsorption and in the presence of the normal biopsies in August 2020; 9. The plaintiff's anaemia and haemoglobin studies were varied. As at July 2018, the studies were normal. The mild anaemia returned to normal parameters without treatment. If untreated coeliac disease was the cause, the parameters would have deteriorated. Dr Yaramati referred the plaintiff for review and Dr Schmidt confirmed symptoms consistent with radiation proctitis; 10. The plaintiff's submissions in relation to weight loss should be rejected. Whilst weight loss may be a clinical feature associated with coeliac disease, there was no dramatic weight loss in the present case relating to the plaintiff but a slow, steady, progressive, decreasing trend towards the plaintiff's baseline weight in keeping with the defendant's recommendations. The dramatic weight loss relied upon by the plaintiff has no evidentiary foundation. It should not have led the defendant to have conducted investigations for coeliac disease; 11. The B12 results were clinically insignificant. If there was malabsorption, the B12 trend would go down. However, the two B12 tests were the same. In the light of the evidence relating to red cell folate, the folate level tests were not determinative. If there was established coeliac disease in 2015, the reduction in the serum folate should be matched by a reduction in the red cell folate. Dr Mackey has misinterpreted the pathologist's comments in the blood test results; 12. The plaintiff's liver function test results were considered and dealt with by Professor Mackenzie; 13. The electrolyte imbalances of the plaintiff were explained by the evidence. When the plaintiff was admitted to hospital in August 2020, he had profound disturbances of his electrolytes, but he was under the care of hospital staff and the matter was investigated. Further investigation by the defendant was redundant; 14. Dr Vickers' evidence should be preferred that there is no association between autonomic dysfunction and coeliac disease. In any case, the plaintiff's falls were mechanical in nature and can be explained. The clinical signs did not disclose any postural hypotension; 15. In relation to s 5O of the CLA, the court should follow the Court of Appeal in Dean v Pope. When invoked, s 5O effectively provides the applicable standard of care and arguably the general exercise required by s 5B of the CLA is not required as there cannot be two legally supportable standards in the one case. 16. The plaintiff's submissions do not address the role or requirements of s 5O and do not deal with the expert evidence of Dr Pitt. Dr Pitt's opinion is entirely supportive of the defendant's management and is persuasive and grapples with the conflicting medical views in a reasoned manner. The plaintiff's submissions provide no basis supporting the contention that s 5O does not apply in the circumstances of this case. Whilst research did not disclose consideration of s 5O in the context of multiple consultations, there is no reason why it cannot apply. There is no basis to reject Dr Pitt's evidence in relation to s 5O; 17. In relation to s 5B and the breach issue, Dr Mackey's evidence should be rejected. It should not be accepted that the defendant demonstrated a consistent pattern of overlooking information, ignoring advice, and managing the plaintiff with substandard history, examination, record keeping and clinical analysis. This was not explained by reference to the evidence. The consideration of undefined clinical features and disparate insignificant pathology results is clearly not compatible with a reasonable standard of general practice care. Dr Yaramati sought and followed the advice of specialists provided over the course of the management of the plaintiff. The possibility of a coeliac diagnosis was not considered by any specialist until August 2020. It was entirely reasonable for the defendant to rely on the collective wisdom of the specialists. A breach of duty of care has not been established; 18. The plaintiff carries the onus of proof on all questions relevant to causation. In relation to omission, the court in considering causation requires consideration of the probable course of events had the omission not occurred. There were many potential factors causing the plaintiff's illnesses. The plaintiff's submissions do not establish that a difference would have been brought about if the defendant had diagnosed coeliac disease. Positive antibody tests do not necessarily correlate with the level of severity of coeliac disease. The opinion that the plaintiff probably had coeliac disease prior to 2020 is heavily based on hindsight knowledge after December 2020 when the plaintiff commenced a gluten-free diet. Dr Vickers' evidence should be accepted that the diagnosis is not made on positive serology blood tests. If Dr Yaramati had sent the plaintiff to a gastroenterologist at any time prior to 2020, the likelihood of him being referred back with normal small bowel biopsies would have been very high given that the biopsies later in August 2020 were normal. It should not be accepted that a gastroenterologist would order coeliac antibodies testing if they knew the biopsies were normal; 19. The plaintiff would have had the illnesses which he suffered from in any case. The symptoms alleged by the plaintiff are more likely to have been an accumulation of side effects of severe urinary sepsis in 2020 on a background of metastatic prostate cancer. There was no objective evidence of malabsorption before September 2020. It should not be accepted that the latent coeliac disease has increased the risk of lymphoma. The plaintiff has not established an entitlement to damages.

Applicable legal principles

The plaintiff's claim is governed by the CLA.

Section 5O of the CLA

As stated above, in paragraph 60 of the Defence filed on 12 January 2023, the defendant pleads in answer to the whole of the Statement of Claim and in reliance on s 5O of the CLA, that in the provision of professional services to the plaintiff as a general practitioner by the defendant, the defendant "acted in a manner that, at the time the services were provided, was widely accepted in Australia by peer professional opinion as competent professional practice". Reference was made in particulars following the paragraph to the reports of Dr Pitt and the first report of Dr Vickers and that the defendant's management of the plaintiff was consistent with competent peer practice.
Section 5O of the CLA provides as follows: "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."
In Sparks v Hobson [2018] NSWCA 29 the Court of Appeal considered the proper interpretation of s 5O of the CLA. Basten JA stated the following at paragraphs 16 to 18: "16. The section envisages a conflict in the evidence as to whether the defendant's conduct was accepted by his or her peers as "competent professional practice." In order to establish negligence, there will usually need to be expert evidence called by the plaintiff to the effect that the defendant failed to exercise reasonable care and skill in providing a relevant service. Under the general law, the defendant would seek to challenge that evidence by calling expert opinion to a contrary effect. For the plaintiff to succeed, the court would need to be satisfied on the probabilities that the appropriate standard was that for which the plaintiff's experts contended. That position has been varied by s 5O(1); although expressed in the passive voice ("if it is established that ..."), it has been broadly accepted that the section provides a defence. 17. Despite the common acceptance of the provision as a "defence", that characterisation gives rise to difficulty. To be a defence carries the implication that the plaintiff must establish breach according to the general requirements of s 5B of the Civil Liability Act, following which the practitioner bears the burden of establishing that his or her conduct amounted to "competent professional practice" in the terms of s 5O(1). The heading of the section ("Standard of care for professionals") indicates its purpose. Although the heading is not part of the Act, it may be taken into account as extrinsic material in construing the provision, in accordance with s 34(1) of the Interpretation Act. In any event, it is tolerably clear that the provision sets a standard. However, if the standard is met, it follows that the conduct was not negligent. 18. Accordingly, once s 5O is invoked, arguably the general exercise required by s 5B becomes otiose. There can only be one standard against which to judge the conduct of a professional defendant, although that standard may depend upon the resolution of conflicting evidence called by the plaintiff and the defendant. It is only if one takes the plaintiff's evidence in isolation that a two-stage process, involving the assessment of the plaintiff's claim followed by assessment of an affirmative defence, will arise. However, in a practical sense, that is not how the dispute should be determined. Rather, a judgment will be given based on all of the evidence. Nor is the exercise helpfully clarified by speaking of shifting burdens of proof. The question for the trial judge is ultimately whether the plaintiff has established that the conduct of the defendant failed to comply with the relevant standard of care. This approach is consistent with Dobler and is not to say that a plaintiff must seek out and negative opinions inconsistent with those of the experts on whom he or she relies. Beyond that proposition, Dobler did not turn upon the onus of proof."
His Honour then went on to state the following at paragraphs 23-24: "23. However, the language of s 5O differs from Bolam, which referred to a practice accepted as "proper" by a "responsible body of medical men". Lord Scarman also referred to "responsible and competent professional opinion". The differences may not have practical significance. 24. In Dobler, Giles JA stated: "Section 5O may end up operating so as to determine the defendant's standard of care, but the standard of care will be that determined by the court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion.""
See also Basten JA's comments as to the significance of particular evidence, and its level of specificity at [28]. These comments were relied on by the plaintiff in his written submissions.
In South-Western Sydney Local Health District v Gould [2018] NSWCA 69 the Court of Appeal considered s 5O of the CLA. Basten JA, whilst agreeing with Leeming JA, stated as follows at paragraph 1: "1. The appellant was found liable in negligence to the respondent for the treatment of the respondent's injured thumb. There was evidence that those for whom the appellant was responsible acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. That being so, unless the opinion could be rejected as "irrational", the appellant did not incur liability, pursuant to s 5O of the Civil Liability Act 2002 (NSW)."
Meagher JA also agreed with Leeming JA.
The case considered the trial judge's interpretation of the term "irrational" in s 5O(2) of the CLA. However, in the course of his Honour's reasons, Leeming JA made a number of significant observations in relation to s 5O. His Honour also agreed with a number of statements made by Basten JA in Sparks v Hobson. In [30] of Gould, Leeming JA set out a number of general conclusions about s 5O of the CLA. His Honour stated the following: "30. I shall return below to the construction of s 5O and how that section interacts with s 5B. For present, it suffices to note the following propositions, which I regard as uncontroversial: (1) it is settled that the defendant bears the onus of establishing the elements of s 5O(1) (namely, he or she was a "professional" and acted in a manner which, at the time, was widely accepted in Australia by peer professional opinion as competent professional practice): Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335 at [60]-[61] and Sydney South West Area Health Services v MD [2009] NSWCA 343 at [20]-[21], [51] and [58]; (2) it is clear from s 5O(3) that there may be inconsistent bodies of peer professional opinion each of which is widely accepted; (3) it is clear from s 5O(4) that peer professional opinion may be widely accepted without being universally accepted; (4) subject to s 5O(2), when the elements of s 5O(1) are made out, the defendant does not incur a liability in negligence; (5) if the court considers that the opinion is irrational, then the section does not to that extent apply; (6) the test of "irrational" in s 5O(2) is not otherwise defined, but in light of s 5O(3) and (4) it cannot be sufficient for peer professional opinion to be irrational merely because one peer, or a body of peers, does not share that opinion."
After considering in detail the trial judge in Gould's analysis of the word "irrational" and rejecting it, Leeming JA stated as follows at paragraphs 100-101: "100. Ultimately, the dispute was refined. It was whether, as Professor Raftos maintained, it was appropriate to consider the administration of gentamicin, or else, as Professor Gatus maintained, in light of the Therapeutic Guidelines - Antibiotic, it was not necessary even to do that. 101. That more refined dispute need not be resolved, even assuming it were possible to do so. It is sufficient to conclude that the defendant had established that there was a practice which was widely accepted in Australia by peer professional opinion as competent. That practice was to administer the antibiotics which were in fact administered, and no more, unless there were significant exposure to water. Further, the evidence of Professor Gatus and Dr Haertsch supported the conclusion that the practice stated in the Therapeutic Guidelines - Antibiotic was widely held across Australia."
In paragraph 119 of Gould, Leeming JA accepted that s 5O of the CLA altered the standard of care against which breach of duty was assessed. Leeming JA then considered the comments of the Court of Appeal in Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335. Leeming JA then stated the following at paragraphs 123 to 129: "123. Read in proper context, it may be seen that Dobler was a very precise statement of the operation of s 5O. Only if the preconditions of the section - namely, that the defendant was "practising a profession" and was doing so "in a manner that ... was widely accepted in Australia by peer professional opinion as competent professional practice" - are established does the section apply. The defendant bears the onus of establishing those preconditions, and if they are not established, then ss 5B and 5C are to be applied. However, if the preconditions are established, then the standard of care against which the defendant's conduct is assessed is that which was widely accepted by peer professional opinion as competent professional practice, unless the court considers that opinion is irrational. 124. In a case (such as the present) where the defendant establishes the preconditions to s 5O, then there is a single standard against which the defendant is assessed, namely, s 5O, subject always to s 5O(2). That is what Giles JA said at [59]: "then subject to rationality that professional practice sets the standard of care". That is also what his Honour said at [61]: "Section 5O may end up operating so as to determine the defendant's standard of care". 125. That is what Basten JA and Simpson JA separately suggested in Sparks v Hobson; Gray v Hobson [2018] NSWCA 29. After reviewing the background to s 5O, Basten JA concluded at [24]: "It is true that s 5O will not be engaged unless there is evidence of a widely accepted professional practice supporting the defendant's conduct, but where there is such evidence, unless it can be rejected by the trial judge, it will fix the relevant standard; there cannot be two legally supportable standards operating in the one case." 126. To similar effect, Simpson JA said at [329]: "[Section] 5O, like s 5I, provides a complete answer to a claim under Pt 1 A of the CLA. It is in that sense that the section operates as a defence. For that reason, when it is pleaded, it is convenient to deal with it first." 127. The force of those observations is readily demonstrated. (1) First, it is to be recalled that s 5B (like many other provisions in Part 1A of the statute) is a gateway provision, expressed in terms of a necessary but not sufficient condition for a finding of "negligence" (ie, a failure to exercise reasonable care and skill). Section 5O, in contrast, in the circumstances in which it applies, means that the defendant "is not liable". That tends to support a construction that when the preconditions to s 5O have been made out, then it supplants the analysis otherwise required by s 5B. (2) Secondly, there is no sound reason first to find whether a professional who has been alleged to have been negligent breached his or her duty of care by reference to what has been held in Rogers v Whitaker and Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22, only then to determine, in accordance with s 5O, that the erstwhile breach of duty does not incur any tortious liability. There is no reason to add to the complexity of trials, so as to require the evaluation of the professional's conduct against not one but two separate standards. (3) Thirdly, there is no good reason for the potential reputational damage which may be suffered by a finding of breach of the test at common law to be incurred when, if s 5O applies, statute has said that "the professional does not incur a liability in negligence". (4) Fourthly, that approach is wholly consistent with the terms of reference to which the Ipp Committee was subject. As noted above, those terms required that "in conducting this inquiry, the Panel must ... (d) develop and evaluate options for a requirement that the standard of care in professional negligence matters (including medical negligence) accords with the generally accepted practice of the relevant profession at the time of the negligent act or omission". Section 5O reflected that term of reference, and I see no reason why it should not be construed accordingly, in accordance with s 34 of the Interpretation Act 1987 (NSW). Its heading is, after all, "Standard of care for professionals". 128. It is true that on occasion there has been separate treatment of breach in accordance first with ss 5B and 5C and then with s 5O (see for example Howe v Fischer [2014] NSWCA 286 at [73]- [78] and Melchior v Sydney Adventist Hospital Ltd [2008] NSWSC 1282 at [139]- [145], both cases where breach was not found to have been established under s 5B). But the weight of authority proceeds on the basis as stated in the Ipp Report, assimilating the standard of care to that stated by s 5O once the preconditions of the section have been satisfied. That is the gravamen of the empirical research presented by C Mah, "A critical evaluation of the Professional Practice Defence in the Civil Liability Acts" [2014] UWALawRw 4; (2014) 37(2) University of Western Australia Law Review 74. 129. In the present case, the separate consideration under ss 5B and 5C, followed by s 5O, appears to have led to error. The primary judge rejected as irrational evidence which was contrary to the standard determined in accordance with s 5B. But the effect of s 5O, in a case where its preconditions are made out, is to replace the standard of care against which breach is assessed. There is no occasion to compare the s 5O standard with that which would be considered in the application of s 5B in a case when the preconditions of s 5O have been made out."
In Gould, Leeming JA held that the opinions of two doctors that gentamicin need not, or even should not, have been administered accorded with competent professional practice which was widely accepted in Australia by peer professional opinion and which was not irrational. The administration of antibiotics to the respondent in that case conformed with the practice. As a result, Leeming JA stated in paragraph 130: "It follows that section 5O applied and there was no liability in negligence."
There had been a difference of opinion in the Court of Appeal in some cases as to the proper construction of s 5O. In Dean v Pope [2022] NSWCA 260 a bench of five judges was constituted in the case. Meagher JA agreed with Brereton JA. White JA also agreed with the reasons of Ward P and Brereton JA. At [267], White JA stated that s 5O(1) "need not be interpreted completely literally as requiring the existence, at the time the service was performed, of professional peer opinion as to an existing practice".
Brereton JA confirmed at paragraph 274 that s 5O was a defence which may be dispositive of a case. His Honour confirmed the view of Basten JA in Sparks v Hobson, that s 5O once invoked effectively provides the applicable standard of care. After detailed analysis, Brereton JA rejected the proposition that a defence under s 5O was not available in the absence of proof of a particular existing practice applicable in the circumstances. His Honour did this after considering the various authorities and discussing the Ipp Report. His Honour then considered the common law approach to a duty of care and breach in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 and Bolam v Friern Hospital Management Committee [1957] 2 All ER 118. His Honour then stated the following at paragraphs 314 and 317: "314. In any event, whatever was the position under Bolam, in my opinion that is now clearly the case under s 5O. The question posed by s 5O is whether "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". This requires identifying the manner in which the professional acted, and asking whether it was at the time widely accepted as competent professional practice. The "manner" refers to what the doctor did. The statute does not refer to "accepted practice". The absence of the indefinite article before competent professional practice tells against the reference being to a particular identifiable subsisting practice. So does the reference to "manner". In my opinion, professional practice in this context refers to the manner in which professionals practise their profession, not to a particular protocol, procedure or process. "Competent professional practice" refers to what a significant body of competent professionals would have done. The past tense "was" is used, not to refer to a subsisting practice, but to highlight that the judgment is to be made as at the time of the relevant conduct, not with the benefit of hindsight in the light of more recent medical advances. If what the doctor did (that is, the manner in which he or she acted) accorded with what by the standards of the time a significant body of peer professionals would in the same circumstances have done, the requirement of the section is satisfied and the doctor was not negligent. … 317. For the above reasons, and those given by Basten JA and Simpson JA in Sparks, s 5O does not in my opinion require proof of a specific pre-existing practice. It is engaged by evidence that, in the same circumstances, a substantial body of peer professional opinion would have considered the manner in which the defendant acted to be competent professional practice. Evidence that a substantial body of competent professional peers would in the same circumstances have acted in the same way will, at least generally speaking, have that effect."
Accordingly, the following general principles may be stated as to s 5O of the CLA: 1. The defendant bears the onus of establishing the elements of s 5O(1), namely, he or she was a "professional" and acted in a manner which, at the time, was widely accepted in Australia by peer professional opinion as competent professional practice; 2. It is clear from s 5O(4) that peer professional opinion may be widely accepted without being universally accepted; 3. Subject to s 5O(2), when the elements of s 5O(1) are made out, the defendant does not incur a liability in negligence: Leeming JA in Gould at 30; 4. The section will not apply if the court considers that the expert opinion is irrational. The opinion will not be regarded as irrational "merely because one peer, or a body of peers, does not share that opinion"; 5. Section 5O altered the standard of care against which breach of duty is assessed; 6. Section 5O should be considered before the analysis in ss 5B and 5C of the CLA; 7. If what the doctor did in the particular circumstances, being the manner in which he or she acted, accorded with what, by the standards of the time, a significant body of peer professionals would in the same circumstances have done, the requirement of s 5O is satisfied and the doctor is not negligent: paragraph 314 of Dean v Pope; 8. Section 5O does not require proof of the specific pre-existing practice. It is enough if, in the same circumstances, a substantial body of peer professional opinion would have considered the manner in which the defendant acted to be competent, professional practice: paragraph 317 of Dean v Pope per Brereton JA.

Standard of care if s 5O of the CLA is inapplicable

As stated above, once a defence under s 5O(1) of the CLA is pleaded and placed in issue, as is the case in the present proceedings, the Court must determine the defendant's liability in negligence by first addressing the matters in that provision. That is because s 5O of the CLA, if established, sets out the standard of care to be applied and otherwise replaces the analysis which might otherwise be required by s 5B of the CLA: see Sparks v Hobson [2018] NSWCA 29 at [334]-[335] and Bridges-Cole v Hussain [2023] NSWSC 18 at [127].
If the Court determines that s 5O is inapplicable, then the analysis relating to breach of duty of care is that set out in s 5B.
However, first the appropriate standard of care if s 5O is inapplicable needs to be stated. If s 5O is inapplicable, the onus remains on the plaintiff to establish on the balance of probabilities that the defendant failed to provide the professional service or services in question in accordance with the standard of the ordinary skilled person practising the relevant profession, here a medical general practitioner. The common law principle is that the law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment: Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 483; see also Sparks v Hobson at [318]. In making the assessment as to whether that duty was complied with, responsible professional opinion will have an influential and often a decisive role to play: Rogers v Whitaker at 489.
The breach issue is to be determined by reference to ss 5B and 5C of the CLA. Sections 5B and 5C of the CLA provide as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence - (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."

Causation

The plaintiff also has to establish causation.
Sections 5D and 5E of the CLA provide as follows. "5D General principles (1) A determination that negligence caused particular harm comprises the following elements - (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent - (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
Accordingly, the plaintiff has the legal onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings: Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19].
Factual causation under s 5D involves the application by the court of the "but for" test of causation which involves a determination in accordance with the section that negligence was a necessary condition of the occurrence of harm. An assessment must be undertaken on the balance of probabilities that the harm in fact occurred to the plaintiff and would not have occurred absent the negligence: Strong v Woolworths, above, at [18]. No submission was made by any party in the present case that this case is an exceptional case for the application of the approach referred to in s 5D(2) of the CLA: as to which see Lloyd v Thornbury [2019] NSWCA 154 at [82].
In relation to causation in medical negligence, this was considered by the Court of Appeal in Williams v Fraser [2022] NSWCA 200. The Court held that in a claim for damages for personal injury caused by medical negligence, proof of a lost opportunity for a better outcome of treatment is not sufficient. Damage must be established on the balance of probabilities and the concept of the loss of a chance is inapplicable in such a claim. Thus in a claim in tort for damages in medical negligence causation of damage is to be established on the balance of probabilities: Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12; Williams v Fraser at [123]-[130]. The plaintiff must establish on the balance of probabilities that the acts or omissions of the defendant caused a relevant difference in the health or condition of the plaintiff.

Findings

I now turn to set out my findings on the central issues in the light of the significant documentary evidence, expert reports and extensive oral evidence. In making these findings, I observe that it is impossible to refer to all pieces of relevant or potentially relevant evidence. What I have attempted to do is to consider the more important issues and submissions which impact upon an assessment of the witnesses and the defendant's management as usual general practitioner of the plaintiff from 2015 to 2020, particularly in the light of the extensive comments made, and the opinions expressed by, the experts. In making these findings, I take into account the extensive written and oral submissions of the parties.
I have already set out above a number of factual findings in my consideration of the background facts and the evidence of the experts.

The plaintiff

The plaintiff, Mr Curran, gave oral evidence over a lengthy period and was cross-examined in detail. As stated above, he appeared to have a very poor recollection of his consultations with various doctors, including the defendant, and in relation to his various hospital stays in 2019-2020. He also appeared to be unable to give any reasonable history about his symptoms at any specific point in time in this period.
I have already set out my conclusion that generally, the Court should prefer the contemporaneous records and notes to Mr Curran's recollections, except where these are inconsistent with other more reliable contemporaneous records. In particular, I accept Dr Yaramati's notes as being generally accurate.
Mr Curran was nearly 76 years of age at the commencement of the final trial. In the relevant period he lived principally by himself and undertook the role of grain farm caretaker, really holding a watch and report type role. Being an older man who lived alone, Mr Curran had the potential to be economical with his variety of foods on occasions with a possible impact on his nutrition. Various experts raised this as an issue. This was not explored in any detail in his oral evidence. Overall, I found Mr Curran to be an honest witness who was trying to assist as best he could. He did not appear to intentionally embellish his evidence nor to seek any undue advantage. However, as I have previously indicated, I conclude and find that as to detail and timing, he cannot be considered to be a reliable witness.

Dr Yaramati

The defendant, Dr Yaramati, also gave extensive oral evidence. His views as to the plaintiff's medical conditions and the lack of factors pointing to possible coeliac disease as opposed to other more likely conditions, were challenged in some detail in cross-examination by counsel for the plaintiff.
At all relevant times, Dr Yaramati was the only medical practitioner in Urana, a small town in the Riverina region of New South Wales. Dr Yaramati gave evidence that the nearest medical practitioners were in a town 50km away and in a town 80km away. I accept that evidence. Accordingly, Dr Yaramati had to rely heavily on his own assessments and research and, where appropriate, the assistance of specialists on referral.
Dr Yaramati's consultation notes were fairly detailed. He frequently referred the plaintiff for specialist opinion. All experts accepted that this was appropriate, particularly in the light of the plaintiff's cancer diagnosis. I accept that Dr Yaramati reviewed the specialist reports soon after they were received by him.
Dr Yaramati was somewhat defensive on occasions when challenged as to his management of Mr Curran, but not excessively so in the Court's view. He maintained the position that his management of the plaintiff was appropriate particularly in the light of the plaintiff's red cell folate levels, other blood test results, specialists' referrals and reports and his hospital admissions in 2019 and 2020.
Overall, I accept that Dr Yaramati was generally an honest witness who was attempting to give accurate evidence to the best of his recollection. His consultations with Mr Curran extended over nearly six years. As would be expected, Dr Yaramati did not recall all the detail of his consultations with Mr Curran. Accordingly, his consultation notes are particularly valuable in considering his management of the plaintiff.
I now turn to consider various factual issues raised on the evidence and submissions.

Does the plaintiff now have coeliac disease?

Both Dr Flecknoe-Brown and Dr Vickers agree that the plaintiff probably does now suffer from coeliac disease. I accept those opinions, particularly in the light of the September 2020 biopsy results, the tests arranged by Dr Chan and the plaintiff's dramatic reported improvement once he was placed on a gluten-free diet (Exhibit C, joint report paragraphs 1.3 and 1.6).
As to the issue of when the coeliac disease of the plaintiff was able to be reasonably diagnosed, there are strong differences of expert opinion. Dr Flecknoe-Brown points to the January 2015 test results which he considered should have been investigated in the light of the low serum folate level (joint report paragraph 1.12). If investigated, on balance, the diagnosis of coeliac disease would in his view have been available in 2015 or soon after (joint report paragraph 1.13; oral evidence). Both Dr Flecknoe-Brown and Dr Vickers are of the view, which I accept, that the plaintiff probably was genetically "set up" for coeliac disease from the date he was born (joint report paragraphs 4.5-4.7, pages 33-34). Dr Vickers considered the position if Dr Yaramati had referred the plaintiff for review to a gastroenterologist in 2015 or 2016. He considered, in the light of the August 2020 biopsy results, that any biopsies taken in 2015 or 2016 would have been normal but a gastroenterologist "may" have recommended antibodies levels testing for coeliac disease which "would have come back being slightly positive" (joint report paragraph 6.3). Dr Flecknoe-Brown and Dr Vickers disagree on the significance of such antibodies results if they had been received in the light of the plaintiff's other symptoms. Dr Vickers said that the antibodies results would have needed quantitative consideration (joint report paragraphs 3.6-3.11 page 12).
In my opinion, having regard to the accepted genetic "set up" of the plaintiff referred to above, the September 2020 biopsy results, the December 2020 Chan results and the plaintiff's response to a gluten-free diet in 2020, if coeliac serology testing had been undertaken in late 2015 or 2016, the result for coeliac antibodies would have likely been positive to some degree (joint report paragraph 2.13, paragraph 3.2 page 11; 3.18 page 13). Positive antibodies for coeliac disease would in my view likely have led to further investigation and probably a positive diagnosis likely though gastroenterological investigation and advice to change diet. This would likely have occurred by about mid-2016 allowing for further testing and specialist consideration. I prefer Dr Flecknoe-Brown's views on this point as it appears logical that there would likely be comments by the pathologist on the serology levels which would lead to further enquiry and consideration (joint report paragraph 3.12-3.20, paragraph 4.3). I accept the plaintiff's submissions on this point (written submissions, paragraphs 37-42). However, the relevance of the above finding depends on whether further serology testing should reasonably have been recommended by Dr Yaramati and should have occurred in late 2015 and/or 2016.
The defendant points to the results of the August 2020 testing as suggesting something occurred in August-September 2020. I think this is unlikely in the light of the significant change in the September 2020 test results (not received by Dr Yaramati until 2021) and the plaintiff's various earlier symptoms which will be discussed further below. Overall, I prefer the opinion of Dr Flecknoe-Brown on this issue for the reasons given.

The 2015 test results - what steps should reasonably have been taken

The blood test results in January 2015 and December 2015 have been referred to above. There was a stark difference in the expert opinion in relation to the significance of the January and December 2015 blood test results of the plaintiff.
I have already set out above my findings in relation to the pathologists' comments and the Active B12 test results.
Dr Flecknoe-Brown was of the view that the low serum folate level in the January 2015 results of 1.9 and the slightly lower active B12 level of 32 warranted further investigation by Dr Yaramati with the likely cause being attributable to coeliac disease causing the malabsorption of folate. He described the folate level in the January 2015 test as "strikingly abnormal" and both serum folate levels as "dramatically lower". He also pointed to the comments of the pathologist relating to coeliac disease in the blood tests' reports. However, Dr Flecknoe-Brown accepted that neither the January nor the December 2015 tests diagnosed coeliac disease. In the joint report, he commented that he was not saying there was "a clear-cut diagnosis of coeliac disease in 2015".
Dr Flecknoe-Brown said that if the serum folate levels had been investigated, it is likely that coeliac antibodies would have been positive and that would have led to "gastroenterological evaluation", and a coeliac disease diagnosis.
A similar view was expressed by the general practitioner expert called by the plaintiff, Dr Mackey. He was of the view that the most common cause of the deficiencies in folate and B12 in the plaintiff's blood tests was coeliac disease and other diseases could be excluded on the plaintiff's medical history: a simple blood test in December 2015, in his view, would have revealed coeliac disease. In the joint report with Dr Pitt, Dr Mackey described the folate and B12 results of the plaintiff as "abnormalities" and "significant" and he said there was no subsequent consideration or further investigation by Dr Yaramati of the abnormalities as there should have been. In his oral evidence he said the serum folate level in January 2015 was "very, very low" and was still "very low" in December 2015.
Dr Flecknoe-Brown stated that a pathologist in 2015 would have focused on the serum folate level and not the red cell folate level. The former was, he stated, recognised as being more important in the pathologist "community". This should be contrasted with the pathologist's comment in the 2 May 2018 test: DTB 2/428. See also the comments in the pathologists' 2015 reports as to the desirability of red cell folate tests "if serum folate levels are persistently low": Pitt/Mackey joint report paragraph 1.7 (PTB 1/43; DTB 2/295, 338)).
Dr Pitt, Dr Vickers and the defendant had quite different views on this issue.
Dr Pitt described the plaintiff's PSA score as "incredibly abnormal" (thus suggesting prostate cancer) but the B12 vitamin score was only slightly under the normal range, was a variant of normal and was not clinically significant. In 2015, the particular relevance of serum folate levels compared to red cell folate levels was not clear and known. It was reasonable for Dr Yaramati in 2015, in Dr Pitt's view, to accept the normal red cell folate level as both significant and reassuring. In 2015, the plaintiff did not complain of abdominal issues but of urinary symptoms. I accept the defendant's submissions on that issue. The test results suggested in Dr Pitt's view that the low serum folate levels were related to reduced dietary folate levels not a chronic pattern of bowel malabsorption.
In relation to the comments in the 2015 blood test results of the pathologist, Dr Pitt said the comments did not say that coeliac disease should be considered. This was despite Dr Flecknoe-Brown's views as to the known relevance of serum folate levels in the pathologist "community".
In his oral evidence, Dr Pitt repeated his views on a number of occasions. He held the serum folate results in the January and December 2015 tests not to be clinically significant. He was of the view that the red cell folate test results would have reasonably reassured Dr Yaramati as they indicated adequate serum folate levels over a longer period. He also noted the importance of red cell folate results to the pathologist commenting on the 2 May 2018 tests: see DTB 2/428; T531.34-.40. The red cell folate test results were normal for that test. He stated that views in the 2018 article quoted by Dr Mackey would have taken some time to be the standard in the general practitioner community: T531.45. That evidence appears logical to me. In his joint oral evidence, he made similar observations in relation to the pathologists' comments in the 2015 test results. He also stated that the 2018 article referred to by Dr Mackey was a US publication not commonly subscribed to by Australian general practitioners at the time.
Dr Vickers took a similar view to Dr Pitt. First, he did not regard the B12 vitamin results for the January 2015 tests as significant. Secondly, in relation to the serum folate level, he was of the view that it represented a short-term nutrition problem through a lack of vegetables, not an indication of coeliac disease. That is because the red cell folate level, which to Dr Vickers was more significant, as it reflected nutrition over a blood replacement cycle of three months, was normal. He also did not regard the pathologist's comments in the 2015 test results relating to coeliac disease as being significant. They did not recommend coeliac serology testing.
Dr Vickers also pointed to the improvement in the plaintiff's serum folate levels in the December 2015 results. See also the 2016 and 2017 test results: referred to at DTB 2/428.
Dr Yaramati himself did not see the 2015 test results, in the light of the plaintiff's history and presentation to him in 2015, as indicating the need to investigate the possibility of coeliac disease. Prostate cancer was the main concern to Dr Yaramati in 2015. Clearly that was an urgent issue demanding attention. He also emphasised in cross-examination that on all occasions the red cell folate levels were normal in the various tests.
In my view, particular weight should be given to Dr Flecknoe-Brown's opinions as to the importance of the serum folate levels compared to the red cell folate levels having regard to his extensive expertise and experience in pathology and haematology. The question to be considered in the present case was whether the approach taken by Dr Yaramati was reasonable in the circumstances at the time.
Dr Flecknoe-Brown said in cross-examination that the importance of serum folate levels was well known in the pathology "community" at the time. Whilst that may be accepted, it did not lead the pathologist who reported on the tests in 2015 to recommend coeliac antibodies testing for the plaintiff. The pathologist also did not diagnose coeliac disease or likely coeliac disease. The pathologist in various tests, including the May 2018 test, appeared to emphasise the relevance of a red cell folate test if serum folate levels were "persistently low". But a red cell folate test was undertaken on both occasions in 2015: DTB 2/295; 338; 428. Further, Dr Vickers maintained the importance of the red cell folate count and stated that on the test results in January and December 2015 he as a gastroenterologist would not have pursued the possibility of coeliac disease in the light of the plaintiff's presentation for urinary system difficulties. His reasoning was in my view convincing. Dr Lewin, the urologist, did not recommend coeliac testing at any time. Neither did Dr Ong or Professor Mackenzie. The serum folate levels of the plaintiff improved in the December 2015 results. Taking all these matters into account, I am not satisfied on the evidence that as at 2015-16 (as opposed to say late 2020), the January and December 2015 test results should either singly or together reasonably have caused a general practitioner in the position of Dr Yaramati to have ordered further testing for coeliac disease, including coeliac serology testing. At that time, I find it was reasonable for a general practitioner such as Dr Yaramati in the light of the plaintiff's presentation with urinary problems, to place particular reliance on the normal red cell folate levels, as indicated by Dr Vickers. I also accept Dr Pitt's evidence on this issue which I found to be persuasive. Dr Yaramati had the advantage of both serum folate and red blood cell folate results available to him in the two reports. The active B12 level was only marginally below normal.
Further, the high or normal red cell folate levels continued in 2018: DTB 2/428. The red cell folate levels do not appear to have been tested in 2016-17, possibly because of the improved serum folate levels as reported in those tests: DTB 2/374; DTB 2/392.
In summary, I accept the defendant's submissions on the 2015 blood test results. I reject the contrary submissions on behalf of the plaintiff.

The plaintiff's diarrhoea and symptoms

I refer to the matters in the plaintiff's written submissions at paragraphs 8-14 and 21-28. I also refer to the defendant's written submissions on pages 2-4.
Both in his reports and in his oral evidence, Dr Flecknoe-Brown emphasised the relevance of the plaintiff's diarrhoea and his presentation to Dr Yaramati and other specialists complaining of diarrhoea symptoms as being a strong indicator requiring investigation for coeliac disease (joint report paragraphs 1.11, 1.14 and 10.15; T348.11-T350.20). He was of the opinion that Mr Curran was "having more episodes of diarrhoea than normal people do": T350.17.
Dr Mackey had a similar opinion, particularly from early to mid 2018. Dr Kelly in his report also referred to the significance of the episodes of diarrhoea. Emphasis was made in relation to the plaintiff's "evolving" symptoms: plaintiff's written submissions paragraph 25.
However, the experts called by the defendant took a different view. Dr Vickers, who is a gastroenterologist, stated that if the plaintiff's diarrhoea was caused by coeliac disease "from the very beginning" and it remained untreated, then the plaintiff would have had "progressive, daily worsening diarrhoea. It would not have been intermittent, and it would have been associated with fairly dramatic weight loss because you're dealing with a progressive disease": T350.26. The defendant relied on this evidence in the submissions.
Dr Pitt regarded the plaintiff's diarrhoea as episodic and was not connected with clinically significant weight loss until late 2020. Further, diarrhoea was in his view readily associated as a side-effect of those having radiotherapy to the pelvic organs (leading to radiation enteritis or proctitis) as the plaintiff had with his treatment for prostate cancer. In his oral evidence, he pointed to radiation proctitis being noted as late as the September 2020 colonoscopy report which in my view is significant as showing continued problems with proctitis: see DTB 2/661. Some rectal bleeding was also noted by other doctors including as late as early 2021: DTB 2/606; PTB 1/385.
Dr Pitt noted the change in the pattern of the plaintiff's diarrhoea symptoms in July 2019 but was of the view that Dr Yaramati had acted appropriately in referring the plaintiff for specialist review and rejected the proposition that he should have considered other gastroenterological causes for the diarrhoea at that time, including coeliac disease: T516.43.
The evidence from Dr Yaramati's notes and from the specialists' letters shows the plaintiff having episodic and intermittent diarrhoea, generally responding to basic treatment. This was particularly the case in 2016-18. Frequently, the plaintiff is recorded by Dr Yaramati as saying he was "well" with no abnormality recorded as being detected by Dr Yaramati on examination. I find that the complaint of chronic diarrhoea for 18 months with increasing frequency (Wagga Base Hospital notes 8 August 2020) was not reported by the plaintiff to Dr Yaramati (even assuming it was accurate) and must be seen in the context of reports of: no further diarrhoea to Dr Ong in February 2018; of regular bowels to Mr Gallo, the dietician, in November 2018; and of daily or occasional bleeding with bowel motions following radiation induced proctitis. Dr Yaramati's notes relating to the plaintiff's presentation are in my view on the evidence inconsistent with chronic continuing diarrhoea for 18 months prior to August 2020. I think it very likely that if the plaintiff had chronic diarrhoea for 18 months that he would have told Dr Yaramati of this, particularly as he saw him fairly regularly. I accept the oral submission of counsel for the defendant on this issue.
Further, the August 2020 biopsies were not, according to the specialist experts, consistent with coeliac disease and show normal villi morphology. Biopsies were stated by the specialist experts to be significant.
Dr Yaramati accepted that there was a significant change in bowel pattern in the plaintiff in 2019 (T448.25), but said that his prime concern was to exclude bowel cancer in the light of the plaintiff's prostate cancer history. In my view, this was a reasonable approach to adopt in the circumstances of the plaintiff's history. He said he took steps to refer the plaintiff for specialist review including follow-up referrals to the specialists who had treated Mr Curran: T448.28; T448.36.
The plaintiff himself, despite contrary evidence in chief, agreed in cross-examination that his diarrhoea between 2015 and 2018 was infrequent and it was not until 2020 that he experienced diarrhoea on a regular basis: T88.38-T89.11.
In the end, until August 2020, any diarrhoea appears to have been episodic and intermittent, often apparently related to the radiation proctitis, and responding to treatment and not associated with significant unexplained weight loss. None of the specialists prior to August 2020 had recommended to the defendant testing for coeliac disease because of the diarrhoea.
I prefer the opinion of Dr Vickers as a gastroenterologist that coeliac disease would have involved a degree of regular and worsening diarrhoea if the plaintiff's coeliac disease had been developing from 2015. Dr Pitt's opinion is generally consistent with that.
The views of the plaintiff's experts do not in my view grapple with the plaintiff's frequent reports of being well with no complaints of diarrhoea in the 2015 to August 2020 period. His radiation therapy and its known side effects including radiation proctitis are also noted. The August 2020 biopsy results reported normal villous morphology.
Accordingly, in the context of no worsening unexplained weight loss, and frequent claims of being well, the intermittent diarrhoea was not until at least late August-September 2020 in my opinion, a significant indicator of potential coeliac disease which reasonably required consideration for further investigation. I find that the diarrhoea symptoms of the plaintiff did not warrant Dr Yaramati to recommend or arrange coeliac serology testing prior to September 2020. In summary, I prefer the defendant's submissions on this issue.

The plaintiff's referrals to specialists and dietitians in the 2015-2020 period

The plaintiff's case is that the defendant should reasonably have investigated whether the plaintiff had possible coeliac disease as early as 2015 after the January 2015 results were received or, alternatively, after the December 2015 results were received or, further or alternatively, at some later time, particularly after the reporting by the plaintiff of repeated episodes of diarrhoea.
After the plaintiff's elevated PSA results were received by Dr Yaramati in 2015, the defendant referred the plaintiff to Dr Lewin, urologist, for review. There was no criticism of this action. Over the following more than five years, the plaintiff was referred by the defendant, or came under the care of, the following specialists and allied health providers and hospitals: 1. Dr Lewin, urologist (on numerous occasions); 2. Dr Schmidt, a general surgeon who performed and had expertise in gastroenterological procedures (on numerous occasions, including performing repeat colonoscopies); 3. Dr Ong, oncologist (on numerous occasions); 4. Dr Hatfield, orthopaedic surgeon (consultations and carpal tunnel surgery); 5. Mr Gallo, dietician (on two occasions); 6. Professor Mackenzie, physician (on several occasions including on admission to Wagga Base Hospital in January 2019. Testing was arranged by her not only relating to sleep or respiratory issues); 7. Hospital admissions in January 2019, August 2020 (twice) (including gastroscopy and colonoscopy) and September 2020 (gastroscopy and colonoscopy) for serious infections.
It was only during the August 2020 hospital admissions, that the question of the plaintiff having possible coeliac disease was apparently directly raised for the first time (other than the mentions in the 2015 test results). The two biopsies taken during a colonoscopy in August 2020 at Wagga Base Hospital do not show evidence of coeliac disease according to Dr Flecknoe-Brown and Dr Vickers. I accept that opinion.
The fact other specialists and health care providers, especially Dr Schmidt (following four colonoscopies), Dr Mackenzie and Mr Gallo, did not raise coeliac disease as worth investigating is, in my view, highly relevant to a determination of the plaintiff's submission that the defendant reasonably should have. The possibility of coeliac disease was raised by the Wagga Base Hospital gastroenterologist: DTB 2/662. I find that Dr Yaramati never saw the results of the September 2020 biopsies until 2021.
Dr Pitt rightly in my view emphasised the importance of the lack of specialist advice or recommendation to Dr Yaramati to undertake coeliac serology testing. I accept that a general practitioner retains a duty to consider independently a patient's overall history and presentation as stated by Dr Mackey. Similarly, I agree that the primary duty of a specialist is to consider the referral letter and the matters and history given in the letter. However, in my view any specialist would likely discuss the issues of concern with the patient and the reasons for the concerns, as well as considering the patient's overall presentation to determine if there should be a referral to another specialist or to arrange further testing. The lack of specialist mention or recommendation for such further testing (including coeliac serology testing) is a relevant factor in considering the course of Dr Yaramati's care. I prefer Dr Pitt's opinion on this issue.

The plaintiff's weight loss

The plaintiff's weight varied in the period 2015-2020. This is relevant as it is a symptom of other medical issues such as diarrhoea, significant gastrointestinal problems and possibly coeliac disease. The plaintiff pressed that the plaintiff's fluctuations in weight were relevant towards a possible early diagnosis of coeliac disease.
In his report dated 9 November 2021, Dr Flecknoe-Brown records the plaintiff informing him that over his period of consulting Dr Yaramati "he was losing weight and strength, although this was most noticeable after 2018. At one stage, his weight had gone down from his usual 55 to 57kg to just 31kg".
In paragraph 10.3 of the joint report with Dr Vickers, Dr Flecknoe-Brown stated "certainly for five years in my opinion the plaintiff was malnourished, he was progressively losing quite a substantial amount of weight and he was losing bone tissue, osteomalacia due to malabsorption of vitamin D."
The assumptions and statements by Dr Flecknoe-Brown as to the plaintiff's weight loss are not, in my view, established by the evidence.
First, the plaintiff himself gave evidence that he had never stated that his weight had fallen to 31kg: T136.10; T136.21; T136.40. He also denied telling Dr Chan in December 2020 that he had lost 20kg to 30kg (although later he said he had lost about 30kg in weight: T136.21). The plaintiff gave evidence that his weight loss was about 10kg or 11kg to 41kg when he saw Dr Chan in later 2020. This evidence is different to Dr Chan's records where the plaintiff's weight was recorded as 44.1kg. The plaintiff said this was not his recollection, but he would accept Dr Chan's records: T135.49. In my view, Dr Chan's records are more likely to be correct than the plaintiff's recollection on this issue, which appeared to be poor.
The plaintiff's weight as recorded in the medical consultation notes and hospital records is as follows: Date Weight and who recorded by Reference 19/01/15 56kg - plaintiff DTB/2 pp 132-135 02/02/16 62kg - defendant DTB/2 p 157 24/11/16 67.1kg - defendant DTB/2 p 166 15/05/17 Weight gain of 20kg - defendant DTB/2 p 176 28/07/17 Result of hormone therapy: T343.2 and .31) 72kg - defendant DTB/2 p 178 12/02/18 65kg, normally 52-54kg - Dr Ong DTB/2 p 587 13/03/18 60kg - Dr Schmidt DTB/2 p 589 17/04/18 65.4kg - defendant DTB/2 p 197-8 10/10/18 62.4kg - defendant DTB/2 p 208 31/10/18 63.5kg - defendant DTB/2 p 210 04/01/19 65kg - Wagga Base Hospital DTB/3 p 737 18/06/19 56kg - Mr Gallo DTB/2 p 234 07/08/19 55kg - Dr Ong DTB/2 p 627 19/09/19 57.8kg - defendant DTB/2 p 245 19/09/19 57kg - Dr Mackenzie DTB/2 p 606 22/10/20 51.1kg - defendant DTB/2 p 267 15/12/20 50kg to 31kg - plaintiff (history provided) PTB p 223 24/12/20 44.4kg - Dr Chan PTB p 224

There is no apparent reason why the Court should not accept the accuracy of the plaintiff's weight as recorded in the consultation notes, hospital records and specialist reports other than the plaintiff's history of going from 50kg to 31kg, which the plaintiff himself denied as being correct. It is also a massive weight loss in a short period of time followed by a massive weight gain a few weeks later, both of which are unlikely (see the cross-examination of Dr Flecknoe-Brown on this issue).
The table records a weight of 56kg on 19 January 2015. The plaintiff's weight increased steadily with the cancer treatment and androgen deprivation therapy and then reduced over time to 57kg in late 2019, still above his normal weight. The recorded weight of 51.1kg on 22 October 2020 was slightly below his normal weight. The plaintiff had been discharged from hospital following serious conditions shortly before: DTB 2/657. His weight on 24 December 2020 of 44.4kg was low but well above 31kg.
The table establishes that, contrary to the opinion of Dr Flecknoe-Brown, based it seems on the history provided by the plaintiff himself, Mr Curran was not "progressively losing quite a substantial amount of weight" as Dr Flecknoe-Brown thought.
Dr Flecknoe-Brown appeared to recognise this himself in cross-examination: T341.42-T345.24. He conceded he had not undertaken a longitudinal review of the plaintiff's various weights whilst seeing the defendant: T341.50. Dr Mackey similarly did not record in the reports the results of any review as to weight undertaken by him.
Dr Flecknoe-Brown agreed that his opinion regarding the significance of progressive weight loss over the years was entirely dependent on the plaintiff's assertion of a weight loss to 33kg or 31kg to Dr Chan in late 2020: T342.19. He also accepted that when the plaintiff's relevant weights were put to him as assumptions, they did not accord with what the plaintiff had told him: T344.25; T345.1.
The above matters lead me to the conclusion that the plaintiff did not suffer progressive significant unexplained weight loss from 2015-2020 whilst seeing Dr Yaramati. I find that his weight gain from 2016 was explained by the hormone deprivation therapy. His weight loss up to late 2020 was explained by the cessation of that therapy and the August 2020 gastritis and January 2019 urosepsis. Dr Flecknoe-Brown said that weight loss after the cessation of hormone deprivation therapy was to be expected. Greater relevant weight loss occurred in October-December 2020 following his earlier August-September 2020 hospital admissions and the consideration by the Wagga Base Hospital doctors of potential coeliac disease.
Accordingly, I am not satisfied that there was a significant unexplained weight loss in the plaintiff in the period 2015-October 2020 suggesting the need to test for coeliac disease up to the time he was last weighed by Dr Yaramati. I accept the defendant's submissions on this issue.

The plaintiff's falls

The plaintiff gave evidence about having a number of falls but did not recall when he had them. He made no complaint of having episodes of falling down during 2015-17: T73.39-.45. The admission documents for his early 2019 hospital stay indicated he had no falls in 2018: DTB 2/1047.
Dr Flecknoe-Brown expressed the opinion that the falls could be indications of anaemia and autonomic dysfunction (joint report paragraph 11.2) and they suggested undiagnosed coeliac disease: T338-339. Dr Vickers doubted the latter (joint report paragraph 11.7). See also Dr Mackey (joint report paragraphs 12.12 and 12.17) and Dr Pitt (joint report paragraph 12.1 and 12.16).
The consultation notes of Dr Yaramati indicate the plaintiff said he fell in the dark in March 2018: T97-T98. This thus appears to be a mechanical fall. There was no history of frequent falls recorded by Dr Yaramati in 2019: T355. In cross-examination Dr Yaramati said that he was not told by the plaintiff that he had unexplained falls.
The plaintiff was admitted to Wagga Base Hospital in August 2020 following a fall. The falls the plaintiff did have appear largely to have been mechanical falls. I accept Dr Pitt's views on this matter. The falls were infrequent as reported to Dr Yaramati. The plaintiff, it must be recalled, was also an older person. Further, on the evidence, I am not satisfied the explanation that autonomic disease was present has been established as a likelihood as opposed to a possibility. In my view, the falls were a factor to be taken into account when they were reported to Dr Yaramati but they seem to have been largely explained or were explicable.

The colonoscopies performed on the plaintiff from 2017-2019

The records in evidence establish that Dr Yaramati or other specialists referred the plaintiff to Dr Schmidt, a general surgeon who performed gastroenterological procedures, on a number of occasions. Dr Schmidt performed four colonoscopies on the plaintiff on the following dates: 1. 18 January 2017 (mild patchy rectal inflammation noted); 2. 28 March 2018 (colonic polyp detected and snared; mild proctitis noted; sigmoid (lower colon) inflammation noted); 3. 29 October 2018 (minor internal haemorrhoids noted; no recurrent polyps detected); and 4. 23 October 2019 (diverticulitis and internal haemorrhoids were noted).
There were also a number of colonoscopies performed on the plaintiff during hospital stays as follows: 1. 13 August 2020 (Wagga Base Hospital) (findings that macroscopically normal, random biopsies taken); 2. 4 September 2020 (Wagga Base Hospital) (various possibilities were raised including radiation proctitis, coeliac disease and/or small bowel lymphoma, histology was awaited).
Dr Schmidt did not diagnose coeliac disease in any of her reports at any time. She also did not refer the plaintiff, or suggest he be referred, for coeliac antibodies testing. In addition, she did not decline to perform the colonoscopies as being unnecessary.
This is relevant to the issue whether the defendant should himself have referred the plaintiff for coeliac serology testing or referred the plaintiff to Dr Schmidt for suggested biopsy to investigate coeliac disease. It seems, in my view, difficult for the plaintiff to suggest that the defendant should somehow have recognised the possibility of coeliac disease where a specialist in Dr Schmidt apparently did not. Dr Schmidt had seen the plaintiff on a number of occasions. The referrals in mid-2019 were appropriate in the light of the plaintiff's history with metastatic prostate cancer and the change in the plaintiff's presentation. I accept Dr Yaramati's evidence on this issue. The 2018 referrals were appropriate, particularly the latter in the light of the polyp noted in the earlier test.

The 2019 hospital admissions

On 4 January 2019, the plaintiff was admitted to Wagga Base Hospital complaining of right-sided flank pain. A history was provided of eight episodes of runny stool and vomiting. The plaintiff underwent an abdominal CT scan and a cystoscopy was performed on the same day (this involved an examination of the bladder by means of a telescopic instrument inserted via the urethra). A ureteric stent was inserted. On 6 January 2019, the plaintiff was discharged with a diagnosis of obstructing kidney stones.
On 22 January 2019, the plaintiff was admitted again with abdominal/groin pain. The plaintiff underwent a further abdominal and pelvic CT scan. A diagnosis of mild right pelvic pelviectasis was made (urine gathering in kidney causing expansion of the kidney). Non-obstructing kidney stones were noted. During admission, the following were noted: 1. Hyperkalaemia (high potassium in blood); 2. Urinary calculus and urinary tract infection; 3. Breathlessness; 4. Deranged liver function test.
The runny stool episodes referred to on the first admission on 4 January 2019 were not recorded as being complained of by the plaintiff to Dr Yaramati and Gastro-Stop capsules were ceased on 30 January 2019.
No significant weight loss was recorded at the 5 February 2019 consultation. Later reviews by Dr Yaramati of the plaintiff in March 2019 recorded no concerns by the plaintiff.
I find that the January 2019 hospital admissions did not reasonably require the defendant to test or refer to investigate possible coeliac disease. The plaintiff's main concerns were urinary including urinary retention, urinary tract infection and kidney stones, consistent with the plaintiff's history of urinary tract problems.

The plaintiff's electrolyte issues, anaemia and osteoporosis diagnoses

The plaintiff points to his electrolyte issues and diagnosis for osteoporosis as being significant symptoms of potential coeliac disease: see DTB 2/435. Osteoporosis was related, it was submitted on behalf of the plaintiff, to malabsorption issues due to coeliac disease. See paragraph 75 of the Amended Statement of Claim, particulars (e), (f) and (g); Particulars filed 6 January 2022 paragraph 2(g) and (z). See also: 1. Report of Dr K Mackey dated 14 November 2022, pages 2, 3, 4 and 7; Dr Mackey's oral evidence in conclave; 2. Joint report of Drs Mackey and Pitt dated 24 February 2023 paragraphs 1.41, 2.16-2.19, 2.28 and 3.2-3.3; 3. Report of Dr Flecknoe-Brown dated 9 November 2021 pages 3 and 6; report dated 6 January 2022 page 2; 4. Joint report of Dr Flecknoe-Brown and Dr Vickers dated 21 April 2023 paragraphs 10.3, 10.15 and 11.1.
The experts called for the defendant were of the opinion that these issues were more likely at the time attributable to other co-morbidities or treatment including radiation treatment (and androgen deprivation therapy) and rectal bleeding: 1. Dr Pitt report paragraphs 43-46, 69, 71-72 and 74-76; Dr Pitt's oral evidence in conclave; 2. Joint report of Drs Mackey and Pitt dated 24 February 2023 paragraphs 1.42, 2.14-2.15, 2.20-2.24, 2.27, 3.4, 3.12-13, 3.16, 5.3, 12.4, 15.3-15.4; 3. Report of Dr Vickers dated 11 April 2022 pages 1, 2, 3, 4 and 6; report of Dr Vickers dated 19 June 2022 pages 2 and 3; 4. Joint report of Dr Flecknoe-Brown and Dr Vickers dated 21 April 2023 paragraphs 3.21, 8.5-8.6, 10.7-10.8, 1.2 and 3.1.
Dr Mackey accepted in his 14 November 2022 report that the anaemia noted in May 2018 "could have been attributed to Mr Curran's problems of radiation proctitis and/or haemorrhoids" but was of the view that confirmation of a cause was overlooked. It was also accepted by him that the radiation therapy was targeted at the plaintiff's prostate and sacrum low in the pelvis and resulted "in some inflammatory radiation proctitis".
Dr Flecknoe-Brown in his 9 November 2021 report accepted that androgen deprivation therapy "can accelerate the development of osteoporosis in males".
Dr Vickers expressed the opinion that the mineral imbalances and the electrolyte deficiencies in the plaintiff in the context of infections in 2019 and 2020 and negative biopsies in August 2020, readily responded to treatment. The osteoporosis was more likely in his view to be age-related and from the use of prostatic hormonal treatments.
Dr Pitt had a similar view. He saw the mineral and electrolyte imbalances as being minor and readily responding to treatment. He saw the osteoporosis as most likely caused by the androgen deprivation therapy which was part of the radiation treatment.
Dr Yaramati also had a similar view. He linked the hyperkalaemia and electrolyte issues in 2019 to the plaintiff's kidney stones infection: T429.33; T430.11.
He said the vitamin D and calcium supplements were recommended due to osteoporosis which followed the plaintiff's cancer therapy: T430.12, T430.19, T430.33, T431.6.
Dr Yaramati stated that when he diagnosed osteoporosis in the plaintiff, he had no symptoms of coeliac disease: T431.19, T434.28-T435.39. Dr Yaramati gave evidence that he treated the plaintiff for electrolyte derangement in 2019 following the plaintiff's urosepsis in early 2019: T437.25; T451.17-.27.
In my view, the opinions of Dr Pitt, Dr Vickers and Dr Yaramati should generally be preferred on these points. First, the plaintiff underwent radiation treatment for prostate cancer to the prostate and lower pelvic regions in 2015 up to November 2015: DTB 2/151. He also was given androgen deprivation therapy: DTB 2/574. I am satisfied on the evidence that this treatment caused in the plaintiff radiation proctitis or inflammation of the rectum which is a common side-effect of the cancer treatment. Some rectal bleeding was noted on occasions in the reports although usually of a generally mild and varying nature. Dr Schmidt performed a colonoscopy in March 2017 which noted radiation cystitis and proctitis: T398.49; DTB 2/174; DTB 2/592. Radiation proctitis was also noted in the colonoscopy in September 2020: DTB 2/661. It was thus an apparent long standing complaint.
The latter can involve on the evidence intermittent bleeding and diarrhoea symptoms: T398.23-.33; DTB 2/178. That is consistent with Mr Curran's symptoms of diarrhoea in February 2016 and February 2017: T399.3.
Anaemia was referred to in the consultation notes on one occasion (DTB 2/201) and was being monitored by Dr Yaramati. It apparently returned to normal without treatment: Dr Pitt, joint report paragraph 3.13; DTB 2/201. A lower haemoglobin count was reported somewhat later, however. Anaemia reported in August 2020 (DTB 2/649 item 6; DTB 2/260) was in the context of the plaintiff's blocked uretic stent and normal villous morphology following a colonoscopy. Iron studies varied but deficiencies were treated: DTB 2/154; DTB 2/162; DTB 2/170; DTB 2/201; DTB 2/204; cf DTB 2/649.
In their joint oral evidence, Dr Mackey pointed to the blood results showing low haemoglobin (below normal) counts. See also paragraph 20 of the plaintiff's submissions. Dr Pitt accepted they were low or in the lower normal range but pointed to the results fluctuating or at some stages improving as being contraindicative of malabsorption problems (he said few symptoms were usually obvious if the count was not low such as 80 as opposed to 105 to 120 plus). He was of the view that in context the results were not clinically significant in the plaintiff having regard to his history. I found Dr Pitt's opinion to be more convincing having regard to the plaintiff's fluctuating haemoglobin results and his per rectal bleeding history. The anaemia recorded was also generally mild as noted in paragraph 20 of the plaintiff's written submissions.
The hospital admissions in 2019 and 2020 all involved infections or other problems including urosepsis. Electrolyte derangement was thus in the context of these infections: DTB 2/215; DTB 2/241.4; DTB 2/259; DTB 2/549. Treatment was given to the plaintiff during the hospital stays. Dr Yaramati followed up on the hospital's discharge plan and arranged further testing and supplements: DTB 2/215-7; DTB 2/237-242: DTB 2/252; DTB 2/259; DTB 2/261.
Osteoporosis is a recognised common side effect of radiation treatment for prostate cancer in males. See Dr Flecknoe-Brown's comment above. It was treated by Dr Yaramati with Prolia injections and supplements: DTB 2/212; DTB 2/232; DTB 2/237; DTB 2/241; DTB 2/250; DTB 2/258.
Dr Mackay gave oral evidence that he would have referred the plaintiff to Dr Ong for advice as to the plaintiff's osteoporosis in the light of the radiation therapy. There is no evidence from Dr Ong as to what his advice would have been if there had been such a referral by Dr Yaramati.
Overall, for the reasons given, I accept and prefer the opinions of Drs Pitt, Vickers and Yaramati that there were more likely differential diagnoses consistent with the plaintiff's osteoporosis, anaemia and electrolyte derangement than coeliac disease in 2015-August 2020 and that coeliac serology testing for these symptoms alone was not reasonably warranted. The plaintiff's known conditions and infections, including the radiation proctitis and androgen deprivation therapy could readily have caused the symptoms complained of. I am not persuaded on the evidence that these matters, including the mild anaemia, reasonably pointed to the need for coeliac serology testing in the period 2016-August 2020. In general terms, I accept the defendant's submissions on these matters.

The August 2020 hospital admission and biopsies

On 8 August 2020, after referral from Dr Yaramati in Urana, the plaintiff presented to Wagga Base Hospital Emergency Department with a history of a fall. He indicated that he had three to four weeks of diarrhoea followed by intermittent perioral tingling and weakness and increased muscle cramping.
The plaintiff was admitted and had an abdominal CT scan performed. It was reported as showing no definite features of colitis or mass lesion. No infections in the gut were noted.
A gastroscopy and colonoscopy were performed on 13 August 2020. The possibility of coeliac disease was raised by the hospital gastroenterologist. The examination found that the plaintiff was macroscopically normal. Procalcitonin level testing suggested a high likelihood of severe sepsis or septic shock. Two biopsies were taken by the gastroenterologist partly to exclude colitis.
The plaintiff underwent an abdominal ultrasound and a cystoscopy. An improvement in diarrhoea was noted on 17 August 2020. The plaintiff was discharged at his request on that day.
The two biopsies taken from the small bowel during the hospital stay show duodenal mucosa with importantly normal villus morphology. The diagnosis was duodenal mucosa with normal villus morphology and mild chronic active inflammation. The colon was inflamed. No malignancy was seen. There was no diagnosis or suggestion of likely coeliac disease in the biopsy report.
Dr Vickers in the joint report with Dr Flecknoe-Brown said five biopsies were desired, spaced apart, for analysis. Only two were taken in the present case. He said the plaintiff's infection meant the two targeted samples for biopsy were permissible.
Dr Flecknoe-Brown said five or four samples for biopsy were desirable and he thought the number of samples taken was inadequate. However, he deferred to Dr Vicker's opinion that the two targeted samples were permissible with a patient with a severe infection as here.
Both experts agreed that the histopathology report dated 13 August 2020 was not consistent with coeliac disease - there was no blunting or atrophy of the villi reported. No raised lymphocyte count or the absence of neutrophils was reported. These matters were emphasised by counsel for the defendant in submissions.
The plaintiff did not recall the hospital admission from 8 August 2020 to 17 August 2020 and in his oral evidence denied it: T127.33. Having regard to the detailed hospital records in evidence, the plaintiff's recollection is clearly deficient and incorrect and I reject it.
Dr Yaramati said there was no complaint to him about abdominal pain or diarrhoea by the plaintiff when he saw him at the Urana facility on 8 August 2020. I accept that evidence. Dr Yaramati said that he received the discharge summary (DTB 2/648-9) which referred to a history of 18 months of diarrhoea with increased frequency. He said he was never told by the plaintiff that he had 18 months of continuous diarrhoea but only occasional intermittent diarrhoea in the context of radiation proctitis: T270-2. In relation to the small bowel biopsies undertaken at Wagga Base Hospital on 13 August 2020, he expressed the opinion that there was no coeliac disease pattern in the biopsies: T274.25-T275.9.
The gastroenterologist on review raised the query of coeliac disease and biopsies were taken. These were inconsistent with coeliac disease. In my view, there was nothing in these events particularly to raise concern with Dr Yaramati about the need to further investigate or consider coeliac disease. The plaintiff received treatment and care in hospital. Importantly, the biopsies were reported as showing normal villus morphology by the pathologist. Both Dr Vickers and Dr Flecknoe-Brown agreed with this.

The September 2020 hospital stay and biopsies

The evidence establishes that the plaintiff was brought to the Urana multipurpose service by ambulance with chest pain on 29 August 2020 with a history of chronic diarrhoea which "had improved when compared with earlier". He also had low blood pressure which improved with hydration. He was admitted to Wagga Base Hospital (DTB 2/653). The plaintiff remained in hospital from 29 August to 7 September 2020.
A repeat gastroscopy and colonoscopy was performed on 4 September 2020 at the hospital and revealed mild gastrointestinal bleeding from oesophageal ulceration, angiodysplasia and/or radiation proctitis. Five biopsies were taken. The histology result was awaited to see if there was any evidence of coeliac disease and/or small bowel lymphoma: DTB 2/657. Dr Yaramati seemed to receive this operation report on 17 September 2020.
The biopsies (five specimens) were reviewed and showed chronic inflammation on the oesophageal biopsy and gastric biopsy and importantly villus atrophy and inflammatory changes on the duodenal biopsy compatible "inter alia with partially managed coeliac disease". Of course, the plaintiff had not had "partially managed coeliac disease" as it had not been diagnosed nor partly managed by any medical practitioner at that time.
There is no evidence Dr Yaramati's surgery received the biopsy results before 24 November 2021, the next year: DTB 2/867. Dr Yaramati said his surgery staff followed up the results without success. I accept that evidence. Dr Yaramati gave evidence that he would not institute a gluten-free diet without the advice and consultation of a gastroenterologist: T277.26.
As stated above, the plaintiff does not recall his August/September 2020 hospital admissions: T127.33; T128.21-T129.19.
Dr Vickers gave evidence that the September 2020 biopsy results were consistent with coeliac disease but also an acute toxic event with the latter being the most likely reason: T329-30. He criticised the biopsies being taken so soon after the August 2020 biopsies which showed inflammation. He said one could not go from two negative biopsies to positive biopsies with chronic coeliac disease in three weeks. Dr Flecknoe-Brown referred to concerning features in the September 2020 results but accepted it was not a diagnosis of coeliac disease: T328.
Dr Pitt accepted that the September 2020 results were different to the August 2020 results because of the reported villus atrophy.
In my view, the September 2020 biopsy results were relevant and concerning and required further enquiry. There was a real difference between the August and September 2020 biopsy results. Having regard to the difference in the results, even assuming infection, I prefer the views of Dr Flecknoe-Brown to Dr Vickers that the September 2020 results required further enquiry.
However, Dr Yaramati's evidence that he would not put a person on a gluten-free diet without advice from a gastroenterologist was not shown on the evidence to be an error or an unreasonable view. There was no evidence as to the availability of a gastroenterologist to see the plaintiff if there had been a September 2020 referral by Dr Yaramati.
As there is no evidence to the contrary, I find that Dr Yaramati did not obtain the September 2020 biopsy results until a year later, well after Dr Chan had diagnosed coeliac disease in the plaintiff.

September-December 2020

As stated above, there is no evidence that the biopsy results of the specimens taken during the colonoscopy performed during the plaintiff's admission to Wagga Base Hospital on 4 September 2020 were received by the defendant prior to 24 November 2021, more than 12 months after the plaintiff's last consultation with Dr Yaramati. The colonoscopy comments indicated that the histology result was awaited to see "if there was any evidence of coeliac disease and/or small bowel lymphoma".
Dr Vickers expressed the opinion that the colonoscopy occurred too soon after the August 2020 colonoscopy and one could not assume the plaintiff's duodenitis had had sufficient time to resolve itself in the period between the two procedures. Dr Flecknoe-Brown takes a different view as referred to above.
An examination of the consultation notes of Dr Yaramati is instructive in this period. The plaintiff had little recollection of this period. The plaintiff argues that the August and September admissions and Dr Yaramati's receipt of the colonoscopy comments on 17 September 2020, clearly indicated the necessity for coeliac disease testing to be ordered by Dr Yaramati. The defendant submits it was reasonable to await the results, to have consultations with Mr Curran and, if thought desirable, to refer Mr Curran to Dr Schmidt for further opinion.
The August 2020 admission to Wagga Base Hospital occurred following a reported fall. While the gastroenterologist was concerned in relation to the possibility of coeliac disease, the two biopsies taken reported no abnormality in the small bowel.
Dr Yaramati was informed by the hospital that Mr Curran had discharged himself against medical advice and had been managed for various conditions including urinary retention and electrolyte abnormality. In the absence of any recollection of the plaintiff and in the light of Dr Yaramati's notes, there does not appear to be any reason to doubt Dr Yaramati's oral evidence that he had not been told by Mr Curran that he was having chronic diarrhoea for 12 months. Dr Yaramati's note for 17 August 2020 included "needs another trial and follow-up with urologist" (DTB 2/259). Dr Yaramati did not see the plaintiff again until 15 September 2020, after Mr Curran's discharge from Wagga Base Hospital for the second time. Dr Yaramati noted various issues, including treatment received in hospital. Blood samples were collected for electrolytes and iron level checks (DTB 2/260). Further notes for that day indicate that there was an examination and Mr Curran's medications were updated in the light of the discharge summary. An ultrasound of the abdomen was recommended (DTB 2/261) which returned a normal result (DTB 2/558).
In October 2020, consultation notes record Mr Curran seeing Dr Yaramati five times. The consultation on 21 October 2020 records Mr Curran being told by Dr Yaramati that the blood test results showed that his "electrolytes [were] improving". Medication was partially altered. At the second last consultation on 22 October 2020 there appears to have been a general examination with the plaintiff's weight noted as 51.1kg, slightly under his base weight. (See also the history of weights at DTB 2/274-5 and 278.)
Hospital notes from the August and September 2020 admissions include a review by a dietician who noted weight loss during the August admission (DTB 2/548) with the plaintiff "disliking" the hospital food and mostly only having a piece of fruit to eat (DTB 2/549). This is relevant to potentially explaining the plaintiff's weight loss at this time. The dietician believed there was malnutrition involved (DTB 2/550).
Dr Yaramati prepared a chronic disease management plan (DTB 2/267). The plaintiff's serum folate levels had been increasing from 2018-19 from their low levels in 2015 but had reduced in the tests on 25 May 2020 but with strong red blood cell folate levels (DTB 2/272). The last consultation on 27 October 2020 did not indicate any issues (DTB 2/277).
Having considered the relevant material referred to above and the expert evidence, in my view Dr Yaramati was reasonably entitled to await any results from the biopsy tests and then refer Mr Curran to Dr Schmidt or a specialist gastroenterologist for review. There was no expert evidence suggesting Dr Yaramati seeking gastroenterological opinion before placing a person on a gluten-free diet was unreasonable or contrary to reasonable general practitioner practice at the time. There was also no evidence of when a specialist gastroenterologist consultation was available for the plaintiff.

Overall conclusions from the above findings

It is necessary to take into account all of the findings which I have set out above as well as the remaining evidence to determine my overall findings in relation to the management and treatment by Dr Yaramati of the plaintiff and his recommendations and advice to the plaintiff in the 2015-October 2020 period.
In doing so, I take into account the plaintiff's submissions about the "evolving nature of the plaintiff's complaints": written submissions paragraph 25. See also paragraph 32.
As set out above, I do not consider the January and December 2015 test results required different and further steps to be taken by Dr Yaramati. The plaintiff's weight did not involve unexplained and significant variation. The plaintiff's diarrhoea symptoms were varied and intermittent and episodic until 2018-9. Then, Dr Yaramati referred the plaintiff to specialists for review. The intermittent and episodic diarrhoea symptoms were in my view reasonably explained by radiation proctitis and generally responded to basic treatment from time to time. The osteoporosis and anaemia similarly had a reasonably open explanation. No specialist raised the possibility of coeliac disease until during the 2020 hospital admissions. The plaintiff is frequently recorded as appearing well in Dr Yaramati's notes and in specialist reports. The notes generally reveal careful review by Dr Yaramati of the plaintiff. My opinion is not changed by considering the factors noted as a whole and considered cumulatively, including in the light of the plaintiff's entire history as known to Dr Yaramati. The physician Professor Mackenzie did not recommend coeliac testing in any of her reports. On the whole of the evidence and in light of my findings set out above, Dr Yaramati did not act unreasonably in not ordering coeliac serology testing, including following the August 2020 colonoscopy biopsy report, in the period 2015-October 2020. He acted generally in accordance with the specialist opinions provided to him. Generally, I prefer the opinions of the defendant's medico-legal experts on the central issues in dispute for the reasons which I have given.

The Defence under section 5O of the CLA

As set out above, the defendant has pleaded in his Defence s 5O of the CLA. The defendant pleads that in the provision of professional services to the plaintiff as a general practitioner, he acted in a manner that, at the time the services were provided, was widely accepted in Australia by peer professional opinion as competent professional practice. Reference is made to the reports of Dr Pitt and Dr Vickers. I place particular reliance on the report and opinions of Dr Pitt as he is a general practitioner medicolegal expert. The defendant submits that the Court should accept the opinion of Dr Pitt in relation to the s 5O issue.
I have set out above a summary of Dr Pitt's reports. There was a challenge made to this aspect of Dr Pitt's report by the plaintiff which was the subject of a voir dire.
I have set out above in some detail a consideration of Dr Pitt's primary report. I summarise the points made as follows: 1. In an executive summary, Dr Pitt expresses the opinion that Dr Yaramati's performance was consistent with reasonable and competent professional practice widely accepted by peer professional opinion; 2. Dr Pitt provides a description of modern Australian general practice including the role and process undertaken by general practitioners in consultations and in providing care to patients; 3. Dr Pitt was asked questions in relation to Dr Yaramati's care and management of the plaintiff, including whether it was consistent with competent professional practice on the one hand and whether the care and treatment of the plaintiff was reasonable in the circumstances on the other hand; 4. Despite there being a distinction made between competent professional practice on the one hand and reasonable care and treatment on the other hand, the format of Dr Pitt's opinions was set out in a fashion which did not on its face clearly appear to make the distinction. See paragraph 62 of his April 2022 report; 5. In answering questions on the voir dire, Dr Pitt stated that he did not see the difference as an expert medical witness between competent professional practice and reasonable care: T479.20-.28.
The consultations, treatment and advice given by Dr Yaramati to the plaintiff extended over nearly six years. There were dozens of consultations in this period. It is unclear, to say the least, how s 5O of the CLA can apply in these circumstances. Neither party was able to direct the Court to any authority in relation to s5O in a similar context. Dr Pitt sought to arrive at a general conclusion in relation to services extending over that nearly six year period. I accept that s 5O does not require proof of a specific pre-existing practice and that it is enough if, in the same circumstances, a substantial body of peer professional opinion would have considered the manner in which the medical practitioner acted to be competent professional practice, consistently with the appellate authorities I have set out. However, as noted by Basten JA at paragraph 28 of Sparks v Hobson, above, a general declaration may be of limited value in many circumstances. That comment appears, with respect, to have some force.
In my view, in the light of Dr Pitt's evidence, the defence under s 5O has not been established by the defendant. First, the summary conclusion set out by Dr Pitt was sought to be applied over a wide range of treatment and advice given by the defendant. It was, in my opinion, too general a conclusion to be persuasive: see the comments of Basten JA in Sparks v Hobson, above at [28]. It is difficult to see how an opinion could be given that the manner of acting was "widely accepted." Secondly, consultations and advice occurred over nearly a six-year period. It is difficult to see how a summary conclusion can usefully be applied to such a lengthy series of consultations as opposed to a more modest and directed (and specifically considered) number of professional consultations or provisions of treatment. Thirdly, I was not satisfied that Dr Pitt in the end understood the difference between the provision of reasonable care and the standard under s 5O. Fourthly, there is a question in my mind of the applicability of s 5O over such a wide range and lengthy period of professional provision of advice and treatment. Further, although Dr Pitt's report was lengthy, not all relevant consultations were considered in detail in his report, and it seems difficult how such a wide conclusion could be drawn in those circumstances. In the end, I am not satisfied that the defendant has satisfied the onus of establishing the elements of s 5O in relation to the manner of acting of Dr Yaramati. I reject the defendant's submissions on this issue.
If I am wrong in this conclusion, then in my view the defence would be made out by the defendant. I do not consider that the expert opinions set out by Dr Pitt were irrational. Although that matter was put in cross-examination to Dr Pitt, a detailed basis for the suggestion was not put or set out. In my view, there was nothing in the report or responses of Dr Pitt that would appear to be irrational thus attracting the application of s 5O(2) of the CLA. No submission was made by the plaintiff in final submissions that Dr Pitt's view was irrational under s 5O.
For these reasons, in my view s 5O has not been established by the defendant.

Duty and breach of duty

Dr Yaramati acted on many occasions as the general practitioner to the plaintiff in consultations. In doing so, he provided advice and treatment to the plaintiff. It is clear that a duty was owed by Dr Yaramati as a medical practitioner in these circumstances to exercise reasonable care and skill in the provision of professional advice and treatment to the plaintiff as his patient: Rogers v Whitaker (1992) 175 CLR 479 at 483.
The question arises whether Dr Yaramati breached that duty of care owed by him to the plaintiff. The question to be considered, with the onus being on the plaintiff, is whether the defendant failed to provide the professional service or services in question in accordance with the standard of the ordinary skilled person practising the relevant profession being in this case a medical general practitioner. As was made clear by the High Court in Rogers v Whitaker (at 489), in making the assessment as to whether the duty of care owed by a medical practitioner was complied with, responsible professional opinion will have an influential and often a decisive role to play.
I take into account in considering this issue also ss 5B and 5C of the CLA. I also note the comments of Justice Leeming in Venues New South Wales v Kane [2023] NSWCA 192 in relation to the proper approach to be taken to ss 5B and 5C of the CLA. In my view, the risk of harm in the present case was the risk that the plaintiff would suffer from the effects of untreated coeliac disease and undertake unnecessary treatment or procedures if advice was not given to undertake appropriate testing for coeliac disease. This is similar to the written submissions of the plaintiff.
In relation to s 5B(2) of the CLA, in my view it was unlikely on the evidence that harm would occur if Dr Yaramati did not recommend coeliac disease serology testing. For the reasons which I have set out above, I do not consider that Dr Yaramati acted unreasonably in taking the approach which he did. I accept that there was a degree of seriousness in the condition if it was untreated and the burden of taking precautions (in recommending appropriate testing) was minor. However, in my view the risk to the plaintiff in the circumstances and on the history he gave in the context of his age, was not reasonably foreseeable and amounted to an insignificant risk. I reject the plaintiff's submission to the contrary.
Having regard to my factual findings set out above, in my view a reasonable general practitioner in the position of Dr Yaramati and having regard to the history of the plaintiff, would not have recommended coeliac serology testing in the period from 2015 to October 2020 whilst the plaintiff was under Dr Yaramati's care. Similarly, I do not consider Dr Yaramati should reasonably have referred the plaintiff to a gastroenterologist for the purposes of considering possible coeliac disease. I rely on my detailed analysis and factual findings above.
In my view, Dr Yaramati provided professional services to the plaintiff in accordance with the standard of the ordinary skilled person practising the profession of a general medical practitioner at the relevant time. In my view, reasonable care and skill in the provision of professional advice and treatment was given, and taken by, Dr Yaramati at all relevant times. In arriving at those conclusions, I take into account my factual findings set out above in the light of the opinions of Drs Pitt and Vickers which in general terms I have preferred on the liability issue and in the light of the oral evidence of Dr Yaramati and the documentary evidence to which I have referred.
For the above reasons, in my view there was no breach of duty of care by Dr Yaramati in the present case.

Causation

I have held that there was no breach of the duty of care owed to the plaintiff by Dr Yaramati. If I am wrong in that conclusion, the question arises whether the plaintiff has established causation. The relevant principles are set out above and, in general terms, a "but for" test of causation must be applied.
I have found that there was no unreasonable conduct of Dr Yaramati in relation to the 2015 blood tests. For further clarification, I find that there was no breach of any duty of care by Dr Yaramati in relation to those tests. In particular, after the January 2015 test alone, there could not have been a serum folate level which was "persistently low" within the pathologists' comments in the January 2015 report (DTB 2/295).
If I am wrong in the above conclusions, I have found that it is likely that coeliac serology testing would have revealed relevant coeliac antibodies to be present, and Dr Yaramati would have referred the plaintiff for specialist gastroenterological opinion consistently with his oral evidence. I have also found that if that occurred, it is likely that advice would have been obtained by Dr Yaramati to undertake treatment for potential coeliac disease by mid-2016. This would have probably included at least following a gluten free diet to test the plaintiff's reaction. That would likely have resulted in a real improvement in the coeliac antibodies and the plaintiff's condition: see T347. I accept the plaintiff's causation submissions in paragraphs 37-43 of his written submissions in this scenario.
If there was no breach of duty in relation to the 2015 blood tests, then I have found that there is no other breach of duty of care by the defendant in relation to subsequent advice and treatment in 2016-October 2020 of the plaintiff. If I am wrong in relation to that conclusion, and an appellate court finds that there was a later breach, for example in relation to the plaintiff's diarrhoea symptoms or following his January 2019 hospital admissions, then it is not entirely clear what would have occurred. It must be recalled that no specialist or hospital recommended coeliac testing until August 2020.
It is unclear to me that if earlier coeliac serology testing had occurred in 2018 (following the diarrhoea symptoms referred to by the plaintiff) or in 2019 (following receipt of the Wagga hospital discharge report), when advice would have been given to alter the approach of the plaintiff through the imposition of a recommended gluten-free diet as occurred in 2020. Having regard to Dr Yaramati's evidence that he would await advice from a gastroenterologist, it is likely in my view that some three to four months would have elapsed allowing for a referral to be provided, an appointment to be made with the specialist and for advice to be given. It would have been following the advice, the taking up of a gluten-free diet (which I consider likely following the plaintiff doing this at the end of 2020), and some lapse of time, that the plaintiff's diarrhoea symptoms would have reduced to some degree.
Some symptoms would probably still have occurred because of the plaintiff's radiation proctitis (which was still noted in the September 2020 colonoscopy report). I cannot see how most of the osteoporosis, the anaemia or many of the electrolyte issues would have been avoided. I prefer Dr Vickers view that some only of the bone disease would have been avoided but not most of it, due to the cancer drugs the plaintiff had been taking: Exhibit C, joint report, paragraph 10.7. Similarly, I cannot see how the further colonoscopies would have been avoided. The plaintiff had suffered prostate cancer and colonoscopies to check on possible cancer following any symptoms were in my opinion appropriate and reasonable. The more dramatic weight loss in September-October 2020 would likely have been avoided with the feelings of unwellness and weakness partly due to that (but also the September 2020 hospital admission).
Clearly, in my view, the plaintiff would still have had urinary symptoms and infection in 2015, prostate cancer in 2015, testing, radiation therapy in 2015, radiation proctitis and inflammation/at least mild rectal bleeding (including up to 2020), the androgen deprivation therapy, the cancer drug injections, the prolia injections, some diarrhoea, the kidney stones and blockages in 2019 and possibly the infections in 2020.
In the end, causation as a result of breach of duty depends on any finding as to a specific breach.

Damages

The plaintiff claims damages for non-economic loss and past and future out of pocket medical expenses. No economic loss or loss of future earning capacity is claimed.
In relation to non-economic loss, the threshold in s 16 of the CLA must be satisfied. No damages may be awarded by a court for non-economic loss unless its severity is at least 15 percent of a most extreme case: s 16(1). Any damages are to be assessed in accordance with s 16. The plaintiff claims $238,500 (33% of a most extreme case) under this head of damages. The defendant submits that no damages should be awarded.
It is very difficult to assess any loss under s 16 if I am in error on the breach issue. It really depends on the breach found. The uncertainties on this issue make any assessment by me on a provisional basis of limited help.
I turn to the definition of non-economic loss in the CLA and the matters referred to in Lloyd v Thornbury [2019] NSWCA 154 at [161]-[162], [168] and [173]. The plaintiff suffered no disfigurement as a result of any alleged breach. His pain and suffering and loss of amenities of life would be assessed depending on the timing of any breach and the circumstances of the breach. It would also depend on what symptoms would be relieved or reduced by earlier treatment. In my view, as stated above, the plaintiff would still have had urinary symptoms and infection in 2015, prostate cancer in 2015, testing, radiation therapy in 2015, radiation proctitis and inflammation/at least mild rectal bleeding (including up to 2020), the androgen deprivation therapy, the cancer drug injections, the prolia injections, some diarrhoea, the kidney stones and blockages in 2019 and possibly the infections in 2020. The colonoscopies would still likely have occurred having regard to the plaintiff's cancer history. The plaintiff's diarrhoea symptoms in 2018/2019-2020 would likely have been less severe. His overall health would likely have been somewhat better, particularly if there was a breach in 2015 resulting in treatment by mid- 2016.
Accordingly, if the breach of duty was from say the end of 2018 or early to mid 2019, the plaintiff would have: 1. Reduced diarrhoea symptoms; 2. Less metabolic bone disease; 3. Less fragility in the plaintiff's bones and a lower risk of fractures; 4. Less weight loss in late 2020; 5. Significantly less feelings of unwellness in 2019-2020 as he would likely be placed on a gluten-free diet; 6. Possibly an avoidance of the September 2020 hospital admission and some testing (although Dr Vickers' evidence at T348 on causation appears to be inconsistent with other evidence given by him); and 7. A small decreased risk of lymphoma - I prefer Professor Flecknoe-Browne's opinion and reasoning on this issue: see Exhibit C, joint report, paragraph 11.10.
Making an evaluative judgment of non-economic loss if the last paragraph were applicable, I would assess the loss at 24% of a most extreme case. This equates to $39,710 ($722,000 x 5.5%). If the breach was from an earlier time the loss would clearly be assessed at a greater percentage.
Past treatment expenses depend on the breach found and its timing. The plaintiff claims just over $14,000. Many medical consultations and procedures would still have been required. I am not satisfied that any loss has been established by the plaintiff under this head of damages. If I am in error, I would only allow a buffer of $1,000 under this head of damages.
Future treatment expenses are considered in the light of Exhibit C, joint report, paragraphs 12.1, 12.2-12.3 and 12.6. The expenses referred to in paragraphs 12.7-.8 would probably have been incurred anyway.
I also take into account the matters in paragraphs 2 (page 2), 4 (page 3), (b) (pages 4-5) of Professor Flecknoe-Browne's report dated 6 January 2022 and the opinions in Dr Vickers' in his two 2022 reports. I was not persuaded on the evidence in relation to the claim for damages concerning orthostatic hypotension. Dr Vickers doubted such a diagnosis could be made and gave reasons for its lack of connection to coeliac disease which were convincing: DTB 1/101. Further, Dr Flecknoe-Brown's costing in his 2022 report was not pressed at the hearing and thus there was no evidence as to costing: PTB 1/157-8.
Heavily discounting the projected cancer treatment costs because of the low risk of this occurring and the risk of falls and fractures, I would have allowed a buffer of $12,000 under this head for future treatment expenses. This also allows an amount for regular review and appropriate testing by the plaintiff's general practitioner. I note there was no evidence that the plaintiff has been diagnosed in the 2020-23 period as suffering from the cancer referred to by Professor Flecknoe-Brown. Similarly, there was no clear evidence of further falls.

Determination

For the above reasons, the following orders are made by the Court: 1. Verdict and judgment for the defendant; 2. The Statement of Claim proceedings are dismissed; 3. The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed; 4. Liberty to either party to apply for a different costs order to that set out in (3) above within 14 days of today.

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: 06 December 2023

Civil Liability Act 2002(NSW)ss 5O, 5B, 5C

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