Dobler v Kenneth Halverson and Ors; Dobler v Kurt Halverson

The judge's decision 28 The issues for the judge came down to -

(a) breach of duty of care: whether in failing to refer Kurt for an ECG or to a cardiologist the appellant failed to exercise reasonable care and skill;

(b) causation: whether on the balance of probabilities if the appellant had referred Kurt for an ECG or to a cardiologist his LQTS would have been revealed, alternatively whether because the appellant did not refer Kurt for an ECG or to a cardiologist Kurt lost the chance that his LQTS would have been revealed. 29 It was accepted that if LQTS had been revealed measures could and would have then been taken which in all probability would have avoided the catastrophic brain damage. Referral to a cardiologist appears to have fallen away, perhaps because the cardiologist would have caused the carrying out of an ECG and so the alternative breaches coalesced. The judge's decision was on the basis of referral for an ECG. As the alternatives for causation indicate, there was a question whether causation on the balance of probabilities or causation through loss of a chance was in law the correct approach. 30 The judge had extensive evidence from medical practitioners and was referred to much medical literature. It is convenient to identify the medical practitioners at this point. 31 Apart from the appellant himself, five general practitioners were called. The respondents called Drs Chambers and Mackey. The appellant called Drs Bunker, Ford and Walsh. The judge described them as all highly qualified and experienced, and set out their qualifications and summaries of their experience. The general practitioners gave evidence before him concurrently, following consultation identifying the issues on which they agreed and disagreed. 32 The respondents also called Dr Raftos, a specialist in emergency medicine, on the particular subject of the appropriate response when Kurt presented at Cessnock Hospital in February 2001. 33 In addition the cardiologists earlier mentioned were called, Professor Harris and Associate Professor McGuire for the appellant and Professor Saul and Associate Professor Richards for the respondents. Another cardiologist, Dr Silberberg, was also called for the appellant in relation to obtaining an ECG following the syncopal event on 4 February 2001. The cardiologists other than Dr Silberberg gave evidence concurrently following consultation. The judge described their extensive qualifications and experience and spoke highly of their objectivity and the assistance provided to him, which a reading of the transcript well bears out.

(a) Breach of duty 34 The reasonable care and skill required of the appellant was governed by the common law as modified by s 5O of the Civil Liability Act 2002. 35 For the common law the judge directed himself by reference to Rogers v Whitaker (1992) 175 CLR 479. The appellant owed to Kurt a duty to exercise reasonable care and skill in the provision of professional advice and treatment. The standard of reasonable care and skill required of him was that of the ordinary skilled person exercising and professing to have his special skill. The standard was not determined by whether his conduct accorded with the practice of medical practitioners in his position or some body of the medical practitioners but by the standard of care demanded by the law, although the practice of responsible medical practitioners was relevant and perhaps decisive in establishing that standard of care. 36 Section 5O of the Civil Liability Act modified this in stating a standard of widely accepted peer professional opinion so long as it was rational opinion. It provided - " 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." 37 The judge noted the appellant's submission that s 5O set the standard of reasonable care and skill and the respondents had to prove that his provision of professional service was not widely accepted by peer professional opinion, and the respondents' submission that s 5O provided a defence whereby the appellant if found to have failed to exercise reasonable care and skill could avoid liability if he established that he acted according to widely accepted peer professional opinion. His Honour concluded that the latter was correct and (at [182]) that "the section is intended to operate as a defence". 38 The judge's dispositive reasoning on breach of duty, to be understood in the light of his preceding consideration of the evidence, was - "184 Dr Dobler did not adequately respond to the detection of what he himself believed was a mitral-type 2/6 pansystolic heart murmur radiating to the axilla. All of the general practitioners agreed that if Dr Dobler believed what he had recorded in his notes about the murmur, then the appropriate response was to obtain an echocardiogram. But most importantly, Dr Dobler fell short of the requisite standard of care in his response to the syncopal event on 4 February 2001. By that time Kurt was in the grip of an acute viral illness, with a recently detected heart murmur which had not been explained, and was admitted to hospital following his third syncopal event associated with other illnesses in 6 years.

185 While I am satisfied that the second syncopal event (i.e. the 1998 incident) was in fact vasovagal, Dr Dobler's contemporaneous records indicate that he did not reflect on other possibilities. He should have. While recurrence does not itself make a syncopal event more or less likely to be benign, it does make it necessary to investigate the cause of the event. This is because if the cause is not benign, a sinister and potentially catastrophic cause is repeatedly operating on the patient. An ECG is one of the quickest, most basic and most readily available cardiological investigations, and it is one of the cornerstones of diagnosing recurrent syncope. When Kurt suffered a third syncopal event in 2001, an ECG ought reasonably to have been performed.

186 Dr Raftos was of the view that an ECG should be performed whenever a person who has suffered a syncopal attack is brought to a doctor or to an emergency department. Each of Kurt's syncopes were brought to Dr Dobler's attention, and Dr Dobler treated Kurt in Cessnock Hospital after each occasion. Even if the view of Dr Raftos should be considered over-cautious at the time of Kurt's first syncopal event, this probably cannot be said of Kurt's second event. It certainly cannot be said of his third episode of syncope.

187 Even so, Dr Dobler will not be liable having regard to s 5O of the Civil Liability Act 2002 if it is established that when he failed to obtain an ECG he '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.' I am not satisfied, on the evidence before me, that this has been established. There is a clear division of opinion among the general practitioners in this case, but that would not prevent Dr Dobler from being able to rely upon the opinion of experts favourable to him, if that opinion is widely held (s 5O(3)).

188 I am satisfied that to the extent that the opinions of the general practitioners called by the defendant differed from those of the plaintiff, this has resulted from inappropriate assumptions about the facts (for instance, that Dr Dobler could not have believed that he had detected a 2/6 pansystolic murmur), considering the significant events in Kurt's medical history in isolation, and a reluctance to recognise that when Dr Dobler saw Kurt on 5, 8, 9 and 10 February it was in hospital where an ECG could have been obtained with ease. I do not think that it has been established that it is widely accepted as competent professional practice when a boy is hospitalised following a third episode of syncope, in the presence of a viral illness and recently detected heart murmur, to only treat the viral illness and not investigate the syncope or perform basic cardiological investigations. As Dr Raftos pointed out: '…this isn't complex specialist or sub-specialist medicine. This is very simple medicine. The patient presents with a syncopal episode, simple tests to exclude cardiac disease, including electrocardiogram. It's not complex medicine, it's very common medicine that primary care people, GPs and emergency departments, practice every day or every week and it doesn't require any specific technology or any specific specialist knowledge'.

189 In her evidence, Dr Chambers said that on 5 February 2001 it would have been 'irrational' not to perform further cardiological investigations. She said: 'It is irrational to not do this. We have had a history building up over time. We know that there is the possibility of these serious problems that are associated with syncopal attacks. The man is in hospital and we have had a cumulative history of funny turns that are not really properly explained. We have negative neurological investigations. We have a further funny turn, be it seizure, be it faint, be it drop attack - whatever it is. The man is in hospital, he has easy access to do all of the appropriate investigations.' 190 Although it is unnecessary to make a finding of irrationality, Dr Chambers' evidence is significant. In my opinion, s 5O cannot relieve Dr Dobler from liability." 39 The breach of duty found by the judge was failure to have an ECG performed when Kurt suffered the third syncopal event on 4 February 2001. The finding had been foreshadowed earlier in the reasons. The judge had stated at [86] in his review of the evidence of the general practitioners, "To my mind Dr Dobler should have requested an ECG", and at [95] after discussion of the evidence of Dr Raftos, "His evidence reinforces the view that Dr Dobler should have obtained an ECG following Kurt's collapse in February. By failing to obtain an ECG Dr Dobler breached the duty of care which he owed to Kurt."

(b) Causation 40 The cardiologists agreed that Kurt suffered from LQTS, but differed as to the likelihood that it would have been revealed by an ECG performed shortly after the syncopal event on 4 February 2001. Not all people with LQTS will produce a long QT interval on an ECG all of the time. Professor Saul gave evidence that "in this syndrome we know that 25-30 per cent of patients actually have a normal EKG [ECG] at various times", and the cardiologists agreed that - "Long QT syndrome is a complex range of conditions. It is not a single disease with a single outcome. It can be caused by genetic factors, environmental factors or a combination of the two. Environmental factors include drugs, electrolyte abnormalities, myocardial ischaemia, brain injury, bradycardia, hypothermia and stressors which activate the sympathetic nervous system. Regardless of the cause there is a risk of death due to abnormal heart rhythms. The prevalence of the genetic condition is probably in the order of 1 in 3000 of the population. A precise diagnosis of Long QT Syndrome can be difficult to make." 41 The differing opinions involved different conclusions from the results of ECGs performed after Kurt's cardiac arrest. Fourteen or fifteen ECGs were performed between 11 February 2001 and 7 September 2004. The first, performed on 11 February 2001, was agreed by the cardiologists to be abnormal, but Professor Saul and Associate Professor Richards thought that it revealed a long QT interval while Professor Harris and Associate Professor McGuire thought that it did not. A long QT interval was revealed on the next three ECGs performed on 12, 20 and 21 February 2001. An ECG on 25 February 2001 was normal. Of the subsequent ECGs, only one (performed on 2 July 2002) revealed a long QT interval. 42 This brought consideration of stressors which might bring an episode of long QT interval. In a detailed consideration, the judge explained differing positions to the following effect. · The long QT intervals revealed in the ECGs were induced by factors not operating as at 4 February 2001. The ECGs of 12, 20 and 21 February were induced by factors such as the recent cardiac arrest, hypoxic brain damage with sympathetic storms and a slow pulse, and the ECG of 2 July 2002 was induced by the drug Cisipride (although on at least one occasion, 1 August 2003, and possibly others Kurt was taking Cisipride but his ECG did not show a long QT interval). This left the syncopal event of 4 February 2001 as either non-cardiogenic or, if caused by a long QT interval, with an interval which returned to normal within a short time. · The long QT intervals in the ECGs immediately following the cardiac arrest were induced by the common stressor also operating as at 4 February 2001, Kurt's viral illness of glandular fever, and the syncopal event on 4 February 2001 was a manifestation of a long QT interval induced by that stressor which remained and also induced the cardiac arrest on 11 February 2001. 43 The judge's consideration included - "137 In summary, all the specialists agree that the most likely cause of Kurt's cardiac arrest was LQTS. They differ as to whether or not this was likely to be detected on an ECG if one had been performed between 4 and 10 February 2001. Professor Harris and Associate Professor McGuire contend that the stressor that precipitated Kurt's cardiac arrest was either random or unknown, and that in the ECGs following the arrest a long QT interval has only ever been detected in Kurt in the presence of environmental factors that were not present in the period preceding the arrest. Consequently, they believe that an ECG between 4 and 10 February was unlikely to reveal any abnormalities. They are of the opinion that prior to Kurt's cardiac arrest it was more likely than not that an ECG would not have revealed a prolonged QT interval. Associate Professor McGuire said: 'So I would say there was a greater than 80 per cent chance that the ECG would be normal at any specific time because 80 per cent of the ECGs I have examined are normal. The only ones that are abnormal are under extreme provocation.'

138 Professor Harris reasoned that since an ECG performed within a matter of hours after Kurt's cardiac arrest did not reveal 'an extreme QT,' and given the presence of other factors that could explain the prolonged interval on later ECGs, 'I think most likely ECGs done prior to these are highly likely to be normal, of the order of 80 or 90 per cent.'

139 Mr Williams SC questioned both Professor Harris and Associate Professor McGuire about their ability to assess the likelihood of an ECG revealing a long QT interval on 5 February 2001 when they each held the view that the syncopal event of 4 February was vasovagal and not cardiogenic. Professor Harris conceded that 'it would be inconsistent to argue that there was a likelihood of long QT if the diagnosis was vasovagal,' but later argued that - assuming that the event was caused by an arrhythmia - an "ECG on the 5th would be back within the normal range of QT." This view was based on a comparison with the behaviour of Kurt's QT interval after his cardiac arrest. That is, the Professor thought that "if we assume that at the time of the arrest it [the QT interval] was very long, the QT is back within the grey zone a few hours later," and so the same thing is likely to have happened in the first few hours following a syncopal event caused by an arrhythmia. The Professor conceded that this view was based on 'fairly thin' scientific data.

140 Professor Saul and Associate Professor Richards approach the matter differently to Professor Harris and Associate Professor McGuire. They are of the view that a viral illness can precipitate an arrhythmia in people with LQTS, and that this in fact happened to Kurt. In their opinion there were no other stressors present that were significant enough to have provoked an arrhythmia in Kurt (although there were some, like mild electrolyte abnormalities, that may have made some contribution), and that the viral illness was the only stressor present during both the 4 February and the 11 February malignant events. Professor Saul noted that "25 to 30 per cent of the patients with congenital long QT Syndrome have a normal QT interval on at least some ECGs." He also noted that 'syncope is the primary symptom of the long QT Syndrome that precedes any sort of malignant events.' Since Professor Saul and Associate Professor Richards believed that the syncopal events on 4 September 1995 and 4 February 2001 (but not the event on 29 June 1998) were manifestations of Kurt's LQTS (i.e. they believed that the faints were due to cardiac arrhythmias rather than of a vasovagal origin), they were confident that ECGs taken around the time of these events would have revealed a long QT interval. Professor Saul said: 'It seemed to Professor Richards and I that around the time of the syncopal events he was most likely to have a long QT because he was manifesting a symptom of the disease.' 141 Associate Professor Richards rated the chance of finding a long QT interval after 4 February 2001 as "a very high probability, more [than] 50 per cent at least." Professor Saul rated the chance as "very likely." Dr Raftos, who also believed that the 4 February incident had a cardiological cause, stated in his report of 24 March 2006 that ECGs performed on 4 and 5 February would, on the balance of probabilities, have revealed a long QT interval.

142 During the course of the discussion during concurrent evidence Professor Saul gave an explanation for the difference of opinion between the cardiologists. He thought that the position of Professor Harris and Associate Professor McGuire was based on an overall assessment of the 14 ECGs that had been recorded for Kurt between 11 February 2001 and 7 September 2004. Taking that longer view would indicate that 4 of 14 ECGs showed a long QT interval. Working backwards from this figure, they felt that the chances of an ECG revealing a long QT interval between 4 and 10 February would accordingly be low. On the other hand, Professor Saul and Associate Professor Richards took a more narrow view of the incident, confining their assessment largely to the ECGs recorded in the period immediately following the cardiac arrest (the "peri-event period"). On this basis, 3 out of 4 (according to Professor Harris and Associate Professor McGuire) or 4 out of 4 (according to Professor Saul and Associate Professor Richards) of the ECGs recorded between the time of the arrest and 21 February revealed a long QT interval. Working backwards from this information, and having regard to the fact that Professor Saul and Associate Professor Richards believed the 4 February syncope to have been caused by an arrhythmia relating to Kurt's LQTS, they thought that the chances of an ECG revealing a long QT interval between 4 and 10 February was accordingly very high. Professor Saul summarised the differences of opinion in this manner: 'We pretty much decided [during the joint conference] that it is [long QT syndrome that caused Kurt's cardiac arrest], but on the case of Professors McGuire and Harris that it was an unusual case with certainly [sic] unclear precipitators and for the case of Professor Richards and myself that it is not as unusual a case with probable stressors of the viral illness aspect.'" 44 The judge noted the different nature of proof on the balance of probabilities and proof to a scientific standard, referring to State of New South Wales v Allen [2000] NSWCA 141 at [3], Faferrière v Lawson (1991) 1 SCR 541 at [159] and Ramsay v Watson (1961) 108 CLR 642 at 645, including saying - "176 This is a case where the issue of causation simply cannot be answered with scientific certainty. However, proof in a legal context is governed by considerations of legal responsibility rather than by the establishment of scientific absolutes. Legal causation is established by the application of common sense to the evidence as a whole ( March v E & M H Stramare Pty Ltd (1990) 171 CLR 506 at 509). This may not yield the same results as the application of the scientific method, but it provides an appropriate resolution of problems where the inherent uncertainty of human affairs may compel the scientific mind to suspend judgment." 45 The judge resolved causation on the balance of probabilities - "168 I am satisfied on the balance of probabilities that Kurt has long QT syndrome and it was this which caused the cardiac arrest which struck him on the early morning of 11 February. Although he suffers from the syndrome it is not a condition which is always present and, even if present, may not lead to a cardiac arrest. Most probably, some physical or environmental stressor will cause the QT interval to deviate from the norm. Although the stressor in Kurt could have been random I am satisfied that in Kurt's case it was related to his physical condition at the time. He was suffering from Epstein-Barr virus (of a sufficient degree to require hospitalisation), with an imbalance in his electrolytes caused, in Associate Professor McGuire's words, by "vomiting and dehydration and onset of illness." There may also have been a contribution from his ingestion of potentially detrimental drugs.

169 As I have related, following Kurt's cardiac arrest 14 ECGs were taken between 11 February 2001 and 7 September 2004. It is correct, as Professor Harris and Assoc Professor McGuire point out, that only 4 or maybe 5 out of the 14 showed a long QT interval. It was fundamentally for this reason that they were of the view that an ECG prior to 11 February would not have been likely to reveal a cardiac problem and rated the possibility as no greater than 20%. Associate Professor McGuire made this plain when he said that "there was a greater than 80 per cent chance that the ECG would be normal at any specific time because 80 per cent of the ECGs I have examined are normal " (emphasis added). I note that even if this reasoning is sound, the arithmetic is wrong. On the view least favourable to the plaintiff, 4 of 14 ECGs revealed a long QT. This would equate to roughly a 28.57% chance that Kurt's ECG would be abnormal at the relevant time. On the most favourable view, 5 of 14 ECGs revealed a long QT interval. This equates to about a 35.71% chance that an ECG would be abnormal at the relevant time. Professor Saul points out that although there is doubt as to whether the ECG on 11 February shows long QT it is agreed that those taken on 12, 20 and 21 February reveal a prolonged QT interval. Kurt had by this time, of course, experienced a cardiac arrest and hypoxic brain injury but it is reasonable to assume that he remained, as Professor Saul concluded, infected with glandular fever.

170 I am satisfied that the syncopal episode of 4 February 2001 and the cardiac arrest of 11 February 2001 were related. The very fact of the cardiac arrest gives the 4 February event a more sinister aspect. The fact that this was a repeated syncopal event strengthens this conclusion, particularly in light of Professor Saul's uncontradicted evidence that recurrent syncope is 'the primary symptom of the long QT Syndrome that precedes any sort of malignant events.' Although I accept the view of all the cardiologists that the 1998 syncopal event was probably of vasovagal origin, I am satisfied that the other two syncopal events were not benign. This is especially so in relation to the event of 4 September 1995, where there had been no change in posture and no clear premonitory sign. Kurt's complaint that his food tasted unusual is consistent with his having been ill throughout the day. The fact that he fell face first into his food indicates that the syncope was sudden and unexpected. The event of 4 February 2001 is not so clear, but I accept the view of Professor Saul and Associate Professor Richards that it was the result of an arrhythmia. Accordingly, as I am satisfied that the events of 4 September 1995, 4 February 2001 and 11 February 2001 all had a cardiogenic cause. Given that Kurt had LQTS, in my opinion it is probable that the common factor which was present on each occasion - namely, a viral illness - precipitated each event. As Kurt was suffering from a viral illness continuously between 4 and 10 February, I am satisfied that it is probable that an ECG performed between 4 and 10 February 2001 would have revealed his long QT.

171 As I have already stated, Professor Harris and Associate Professor McGuire assess the likelihood of an abnormality being revealed on an ECG at the relevant time as being very low. Their premise is that on the occasions when a long QT interval has actually been detected in Kurt, it has been in the presence of environmental factors (recent cardiac arrest, hypoxic brain injury with sympathetic storms, bradycardia and, in 2002, the drug Cisipride) that were not present in the days leading up to Kurt's cardiac arrest. This premise falls away once it is accepted that Kurt's viral illness was a precipitating environmental factor, because it was a factor that was present before the syncope of 4 February and which was still present in the period immediately after his cardiac arrest when all but one of Kurt's abnormal ECGs were recorded. To repeat again the view of Professor Saul: '…my opinion is that it is the stress of the viral illness that both caused the long QT interval and the arrhythmic event and it was much less the effect of the brain damage and cardiac arrest because, as I've mentioned, I see that a lot in children without QT prolongation I would say the vast majority of the time. For me the whole period from February 1 to February 21 is a period of viral illness which has exacerbated this boy's long QT Syndrome and that's where the likelihood comes from.' 172 Even if I am wrong to accept this view, the combination of bradycardia, electrolyte abnormalities and long QT provoking drugs that were each present in Kurt at one time or another from 4 February to 10 February may have had the effect that an ECG performed at this time would have revealed an abnormality. … 174. The tension between legal and scientific proof is apparent in this case, where Professor Harris and Associate Professor McGuire were not prepared to recognise a viral illness as an environmental factor capable of precipitating a long QT interval because it had not been recognised as such in the scientific literature. I, on the other hand, have found on the balance of probabilities that Kurt's viral illness was a precipitating factor. My decision (although it is certainly consistent with the opinions of Professor Saul and Associate Professor Richards) is based on the evidence in the case - both lay and expert - taken as a whole." 46 Going to loss of a chance, the judge described the parties' positions - "191 The plaintiff advanced his case on alternative bases. It was submitted that if he could demonstrate, on the balance of probabilities, that Dr Dobler had breached his duty of care and caused his injuries he should recover the full amount of the sum agreed between the parties. However, as an alternative he submitted that if he persuaded the court that Dr Dobler breached his duty of care but failed to persuade the court that, on the balance of probabilities, that breach was the cause of his damage he was nevertheless entitled to recover damages, being the value of the chance lost that he would have had a successful outcome if an ECG had been performed. Although the defendant rejected this alternative submission, the response was that if the matter was appropriately resolved by determining the value of the chance lost and if the chance was greater than 50% but less than 100%, the plaintiff should be awarded damages according to that percentage of the total sum agreed." 47 His Honour noted that Professor Saul and Associate Professor Richards had not put a percentage figure on the chance of finding an abnormality on an ECG, but that Professor Saul had used the terms "very likely" and "extremely high" likelihood and Associate Professor Richards had described it as "a very high probability". After a lengthy discussion of the cases, including the decision of this Court in Rufo v Hosking [2004] NSWCA 391, (2004) 61 NSWLR 678, in which recovery of damages in a medical negligence case for loss of a less than even chance of a better outcome was upheld and Santow JA suggested that loss of a chance could apply where the chance was greater than an even chance, his Honour concluded that - " … insofar as 'loss of a chance' presently has a place in personal injury cases on the current state of the law in New South Wales it is in cases where the plaintiff cannot prove causation on the balance of probabilities, and accordingly the lost chance is less than 50%." 48 Causation through loss of a chance therefore did not arise, and the judge expressed his overall conclusion - "249 I have already determined that on the balance of probabilities an ECG administered after 4 February would have revealed Kurt's long QT. In my view the chances of that occurring were at least 65% and may have been greater. If his condition had been identified the chance that he would not have been effectively managed and a cardiac arrest avoided was negligible. Accordingly, the various plaintiffs have each made out their case and are entitled to verdicts in the sums agreed."

The appellate approach 49 The appeal is by way of rehearing (Supreme Court Act 1970, s 75A(5)), but there are well-established constraints on the Court's approach. 50 In findings of fact resting on credibility considerations the trial judge is generally in an advantageous position, although the findings can be found to be erroneous if contrary to incontrovertible facts or compelling inferences or "glaringly improbable": Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; CSR Ltd v Della Maddallena [2006] HCA 1; (2006) 80 ALJR 458; (2006) 224 ALR 1. The trial judge's advantageous position includes "considering all of the evidence, perceiving its parts in relation to the whole and reflecting upon it all, as it is adduced": NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 80 ALJR 367; (2005) 223 ALR 171 at [86] per Kirby J; see also Jones v R (1997) 191 CLR 439 at 467. These principles generally apply to the evidence of experts: Ahmedi v Ahmedi (1991) 23 NSWLR 288; Forbes v Selleys Pty Ltd [2004] NSWCA 149; Wiki v Atlantis Relocation (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127. Rational examination and analysis are called for, but "[a] judge may be persuaded by a combination of the material force of an expert's views together with the way in which the evidence was given" (Wiki v Atlantis Relocation (NSW) Pty Ltd at [60] per Ipp JA, Bryson JA and Stein AJA agreeing; see also Flinders Medical Centre v Waller [2005] SASC 155; (2005) SASR 378 at [166]-[167]). 51 The judge was in a far better position than this Court, restricted to the cold print of the transcript, to assess the weight to be given to the opinions of the general practitioners and the cardiologists as they gave concurrent evidence before him; an exercise in which the judge participated by inquiry and clarification. 52 Further, it is necessary that the appellant show factual error, and it is not enough to show that an alternative finding was available. Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 46 ASCR 504 (Giles JA, Mason P and Beazley JA agreeing) cited at [17] the judgment of Santow JA, with whom Meagher JA and Beazley JA agreed, in Jones v Bradley [2003] NSWCA 81 at [113]-116] - "113 … In Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW (supra), Heydon JA delivering judgment for the court gave a detailed exposition of the law in this area. Many of his comments have particular application here, as the Appellant is seeking the Court to undertake a detailed review of all of the evidence in the case. Heydon JA held at [60] that the Appellant " bore the burden in the appeal not merely of showing that on the facts her contentions might be available or even correct, but of showing that the Trial Judge's conclusions ought to be reversed ". Heydon JA then favourably referred to the Full Federal Court decision of Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369 where it was held: '... the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the Trial Judge and do not support the judgment. The court must be satisfied that the judgment of the Trial Judge is erroneous and it may be so satisfied if it reaches the conclusion that the Trial Judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the Trial Judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made.' 114 In dismissing the appeal in Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW , Heydon JA highlighted that the Appellant's approach was inadequate to warrant appellate court interference with the judgment at first instance. The impugned approach was characterised by His Honour as [61]: 'The Plaintiff's approach sometimes invited the court to survey for itself, afresh, all the evidence on particular points and arrive for itself at particular conclusions about them, without essaying the necessary task of positively demonstrating that the Trial Judge was wrong. The Plaintiff's approach also paid insufficient regard to the difference between, on the one hand, pointing to difficulties in the Defendants' path of establishing matters which they wished to contend for and, on the other, pointing to sufficient evidence to permit an inference to the contrary of the Defendants' contention'. 115 Heydon JA then favourably quoted from Biogen Inc v Medeva plc [1997] RPC1 at 45 per Lord Hoffman: "The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la [vérité] est dans une nuance ), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation. It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved.' 116 Thus it is clear that for the Appellant to succeed it is necessary that the Appellant demonstrate more than that there were alternate findings (which this Court may or may not prefer) available. The appellant must demonstrate, positively, that the Trial Judge in making the findings that he did was wrong." 53 It should be noted that the judgment of Beaumont and Lee JJ in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, relied on in the passage in Jones v Bradley set out at [52] above, was delivered at a time when the Full Court of the Federal Court treated an appeal as something more constrained than a rehearing: see Duralla Pty Ltd v Plant (1984) 2 FCR 342, expressly referred to in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher at 369. By 2001, there were divergent opinions as to the correctness of that approach, as noted by Allsop J (Drummond and Mansfield JJ agreeing) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [16]-[20]. Allsop J doubted the correctness of Duralla Pty Ltd v Plant, a view later upheld by the High Court in Western Australia v Ward (2002) 213 CLR 1 at [71] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). Nevertheless, the extract relied upon from Minister for Immigration, Local Government and Ethnic Affairs v Hamshe was not affected by that error.

The operation of s 5O of the Civil Liability Act 54 As I have indicated, the judge held that s 5O operated as a defence. The appellant submitted that the judge was in error in holding that s 5O operated as a defence, and that "the plaintiff bears the onus of proving that the provision of the professional services by a defendant was not widely accepted in Australia by peer professional opinion as competent professional practice"; he submitted that it "define[d] the content of the duty of care owed by [the appellant] to Kurt". 55 The judge's decision did not turn upon onus of proof. The parties were at issue on, amongst other things, whether the opinions expressed by Drs Walsh, Ford and Bunker represented widely accepted peer professional opinion, and the judge's conclusion adverse to the appellant was not because lack of evidence or inability to find one way or the other, so that an onus dictated the result. I think it became common ground at the hearing of the appeal that there was no question of onus of proof. However, in order to deal later in these reasons with the judge's conclusion at [187]-[188] that what s 5O required had not been established, it is appropriate to say more of the operation of s 5O. 56 In Bolam v Friern Hospital Management Committee (1957) 2 WLR 582 at 587-8 McNair J directed a jury that a medical practitioner who acts in conformity with accepted approved and current practice is not negligent "merely because there is a body of opinion which would take a contrary view". The corollary that a medical practitioner is not negligent if there is a body of opinion in accordance with which he acted became established in England. In Sidaway v Governors of Bethlem Royal Hospital (1985) AC 871 Lord Scarman said at 881 - "The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment." 57 The Bolam principle governed who determined the standard of care. If the medical practitioner acted in accordance with the practice accepted as proper by a responsible body of medical opinion, that practice set the standard of care; other than by finding or not finding that the practice was accepted by a responsible body of medical opinion, the court did not. (It has been made clear that the court must be satisfied that the body of opinion is reasonable or responsible: Bolitho v City of Hackney Health Authority (1998) AC 232 at 241-2.) The practical result, in the words of the learned editors of Clerk & Lindsell on Torts, 19th ed (2006) at 10-63, was that "proving fault in a doctor on the basis of his choice of a particular technique or method can be very difficult: the claimant effectively has to show that no body of respectable medical opinion would have supported what the doctor did". 58 The Bolam principle was rejected in Rogers v Whitaker in relation to disclosure of risk and provision of advice and information, and it was said more generally that the standard of care to be observed by a person with some special skill and competence is "not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade" (at 487 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ; see also per Gaudron J at 493 that even in the area of diagnosis and treatment there is no legal basis for limiting liability in terms of "the Bolam test"). The court determined the standard of care, although evidence of acceptable medical practice was "a useful guide" (at 487) and responsible professional opinion could "have an influential, often a decisive, role to play" (at 489). 59 Section 5O was amongst the tort law reforms consequent on the Review of Law of Negligence Final Report, September 2002 ("the Review"). It was intended to introduce a modified Bolam principle. Its importance does not lie so much in questions of onus of proof as in who determines the standard of care. Commonly, as in the present case, there will be expert evidence called by the plaintiff to the effect that the defendant's conduct fell short of acceptable professional practice and expert evidence called by the defendant that it did not; the expert evidence may or may not recognise that the opposing professional practice is one which has some currency. Apart from s 5O the Court would determine the standard of care, guided by the evidence of acceptable professional practice. It would not be obliged to hold against the plaintiff if the defendant's conduct accorded with professional practice regarded as acceptable by some although not by others. Section 5O has the effect that, if the defendant's conduct accorded with professional practice regarded as acceptable by some (more fully, if he "acted in a manner that … was widely accepted … by peer professional opinion as competent professional practice"), then subject to rationality that professional practice sets the standard of care. 60 In this sense, s 5O provides a defence. The plaintiff will usually call his expert evidence to the effect that the defendant's conduct fell short of acceptable professional practice, and will invite the court to determine the standard of care in accordance with that evidence. He will not be concerned to identify and negate a different professional practice favourable to the defendant, and s 5O does not require that he do so. The defendant has the interest in calling expert evidence to establish that he acted according to professional practice widely accepted by peer professional opinion, which if accepted will (subject to rationality) mean that he escapes liability. 61 It follows that I do not accept the appellant's submission that s 5O did not provide a defence but defined the content of the duty of care owed by the appellant to Kurt, with the onus on the respondents to prove that the manner in which he acted was not widely accepted by peer professional opinion as competent professional practice. 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. To require the plaintiff to establish the negative would significantly distort the language of s 5O(1), and would not be consistent with the reference in s 5O(2) to reliance on peer professional opinion for the purposes of the section - the plaintiff does not rely on it in order to negate a liability in negligence. 62 The appellant's arguments in support of his submission should be noted. He submitted that the definition of "negligence" in s 5 of the Civil Liability Act to mean "failure to exercise reasonable care and skill" informed the reference to liability in negligence in s 5O(1), and that regard to the explanatory notes to the Civil Liability Amendment (Personal Responsibility) Bill 2002 (which inserted Div 6 of the Civil Liability Act which included s 5O), to the second reading speech for the Bill, and to the Review all supported this construction. 63 The appellant's arguments had the difficulty that para 3.22 of the Review states that the recommended rule which (at least conceptually) became s 5O "provides a defence for any medical practitioner whose treatment is supported by any such opinion, … ". The second reading speech also refers to a defence; the Premier, Minister for the Arts and Minister for Citizenship relevantly said (Hansard, 23 October 2002, p 5765), "The bill also creates an additional defence to alleged professional negligence if the professional acted in a manner that was widely accepted in Australia by pure [sic] professional opinion as competent professional practice". The explanatory notes say that Div 6 "deals with the standard of care for professionals", which it did, and that "[a] professional will not be liable in negligence if the professional acts in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice", which does not illuminate the present question. Reading the definition of negligence into s 5O(1) does not assist. It is difficult to see how the appellant thought that there was support in these materials for the construction for which he contended. 64 The judge approached breach of duty in accordance with the operation of s 50 which I have described. He held that the appellant "fell short of the requisite standard of care" (at [184]). He then considered whether the appellant nonetheless was not liable because it was established that when he failed to obtain an ECG he acted in a manner widely accepted by peer professional opinion as competent professional practice, and found that it was not (at [187]-[188]). 65 I turn then, to the challenges to each of these steps to the judge's decision.

Breach of duty - apart from s 5O of the Civil Liability Act 66 The appellant sought to take from the judge's reasons the matters which led his Honour to conclude that the appellant was in breach of duty in not ordering an ECG after the syncopal event on 4 February 2001, and to challenge each of those matters. The matters he identified, from the judge's [184] and following, were failure adequately to respond to the detection of the heart murmur; failure to reflect on other possibilities; the ease with which an ECG could have been performed; and the judge's preference for the evidence of the general practitioners called for the respondents. The challenge that the judge should not have preferred the evidence of the general practitioners called for the respondents to an extent incorporated the other challenges. 67 The appellant submitted that the detection of the heart murmur on 1 February 2001 was irrelevant, because the appropriate action was an echocardiogram not an ECG and an echocardiogram would not have identified LQTS. He said that even if (as the judge had earlier noted) Drs Chambers and Mackey were of the view that an ECG should also have been performed, it would have been a single lead ECG which would not have picked up a long QT interval rather than a twelve lead ECG which may have done so; and further, that the preponderance of the evidence was that on a number of occasions on and after 5 February 2001 Kurt's chest had been auscultated and the murmur had not been detected, so it had been but a transient condition. 68 I do not think that this properly recognises the significance of the detection of the heart murmur in the judge's reasoning. In his discussion of their evidence the judge noted that the general practitioners were of the view that an echocardiogram should have been performed, and that Drs Chambers and Mackey were of the view that an ECG should also have been carried out. He also noted that the cardiologists agreed that they would have obtained an ECG following the detection of the heart murmur. But the judge did not rest his conclusion on this, nor did he find it necessary to resolve whether the appellant had checked Kurt's chest with a stethoscope on the morning of 10 February 2001. 69 When the judge said at [184] that the appellant did not adequately respond to the detection of the heart murmur, his point was that at the time of the syncopal event on 4 February 2001 there was "a recently detected heart murmur which had not been explained". It was that the heart murmur, even if transient, was unexplained, and that its contribution to the possibility of cardiac abnormality reinforced that an ECG should have been performed following the syncopal event of 4 February 2001. It must be remembered that at this time LQTS was not known and was not the only condition open to investigation; possible cardiac abnormality, rather than LQTS in particular, called for an ECG. As Dr Chambers said - "The fact that this patient's 'syncopal attacks' occurred on a background of previously heard murmur would suggest that this patient's transient loss of consciousness may not be benign, (such as transient arrhythmias), conduction defects, and valvular disease which reduce the cranial flow such as aortic stenosis." 70 The judge had set out at [93] a lengthy extract from the report of Dr Raftos, which included not only that an ECG should have been performed following detection of the new heart murmur, but also that the combination of that detection and the collapse on 4 February 2001 "strongly suggested that a cardiac abnormality had caused Kurt's syncope" and that an ECG should then have been performed. The judge said at [94] that he accepted Dr Raftos, and that Dr Raftos' evidence reinforced the view that the appellant should have obtained an ECG following Kurt's collapse in February and by failing to do so breached the duty of care he owed to Kurt. 71 The judge's reasons must be read as a whole, and this makes plain that in the summation expressing his conclusion on breach of duty, particularly with acceptance of Dr Raftos' evidence, he paid regard to the unexplained heart murmur in combination with the syncopal event on 4 February 2001 as the third such event and Kurt's viral illness. As will be seen, the general practitioners called for the respondents also paid regard to the combination of circumstances. In his submission in relation to the heart murmur (as also in his submissions as to other matters), the appellant impermissibly took the matter in isolation. I do not think that there was error in the judge's regard to the heart murmur. 72 The failure to reflect on other possibilities referred to in [185] was at the time of the second syncopal event on 29 June 1998; plainly enough, however, the judge considered that the third syncopal event should have caused the appellant to consider the possibility of cardiac abnormality and investigate for a malign cause. The appellant submitted to the effect that each of the syncopal events was, or at least could reasonably have been seen as, a benign occurrence, and that Kurt's viral illness was itself a reasonable explanation for his syncope on 4 February 2001; so that consideration of the possibility of cardiac abnormality and investigation for a malign cause of the latest syncope was not called for. 73 The second syncope on 29 June 1998 was found to have been vasovagal, on the basis of "the broad consensus between the cardiologists" (at [115]). The appellant submitted that the syncopal event on 4 September 1995 was vasovagal or hypotensive, as Professor Harris and Associate Professor McGuire had concluded, rather than due to cardiac arrhythmia, as Professor Saul and Associate Professor Richards had opined. Dr Silberberg and Dr Raftos did not regard the event as vasovagal. The essential reasons for the different views were the significance given to Kurt feeling unwell throughout the day and in particular whether his collapse was preceded by a prodrome: Ken's description of Kurt falling face first into his food was regarded by Professor Saul and Associate Professor Richards as negating any clear prodrome. Again, in relation to the syncopal event on 4 February 2001 Professor Harris and Associate Professor McGuire believed that it was more likely to have been vasovagal or hypotensive whereas Professor Saul and Associate Professor Richards regarded it as most likely a cardiac arrhythmia. The essential difference once more was whether saying "Dad" and putting the glass of milk down indicated a prodrome. Dr Silberberg considered that the history was not prodromal, Dr Raftos was of the contrary view. 74 So far as the appellant submitted that the syncopal events on 4 September 1995 and 4 February 2001 had benign causes, findings in retrospect are not what matters. Nor indeed are the views of the cardiologists what governs. Rather, what matters is the response of a general practitioner in the position of the appellant to the third of the events, particularly in the light of the preceding events and the recently detected heart murmur. Similarly, that Kurt's glandular fever could have explained his collapse on 4 February 2001 was but part of the circumstances. 75 On each of the 1995 and 2001 occasions there was not an undoubted prodrome - the opinions of highly qualified cardiologists so indicated, even if there were contrary opinions. The judge correctly did not rest his conclusion on finding with hindsight that the events were cardiac rather than vasovagal or otherwise benign, or vice versa, but rather on the appropriate response of a general practitioner in the whole circumstances. He said at [185] that, while recurrence of a syncopal event did not make it more or less likely to be benign, it did "make it necessary to investigate the cause of the event". The appellant's submission did not meet this reasoning. 76 The most important matter was the judge's preference for the evidence of the general practitioners called for the respondents. The general practitioners all agreed that referral for an EEG after the syncopal event of 4 September 1995 was appropriate, and that an appropriate provisional diagnosis was that it was a vasovagal faint. With Kurt's loss of consciousness outside the surgery on 4 June 1998, Dr Mackey considered that the appellant should have ordered further investigations, including of a possible cardiological cause, and was supported by Dr Chambers. Drs Walsh, Ford and Bunker, however, considered that it was a typical vasovagal faint and did not suggest a cardiological cause. When there came the syncopal event on 4 February 2001, Dr Chambers was emphatic that the appropriate response should have included an ECG, and Dr Mackey was of the same opinion. Drs Walsh and Ford considered that the most recent event was broadly similar to the earlier events, that Kurt's viral illness was likely to aggravate any predisposition to vasovagal syncope and that, there being nothing to alert the appellant to the possibility of cardiac syncope in Kurt's history, an ECG was not required; Dr Bunker was a little less direct, saying that he believed that "many of my peers would not have performed an ECG in this clinical setting". Dr Raftos was firmly of the view that an ECG should have been performed on 4 February 2001 as "an essential part of appropriate investigation, given that cardiac arrhythmia is an important cause of syncope … ". (The cardiologists all considered that an ECG should have been performed.) 77 The judge said at [76] that he preferred the opinion of Dr Mackey as supported by Dr Chambers in relation to the response which the appellant should have made to the syncopal event on 4 February 2001. This was not expressly repeated in his conclusions at [184] and following, but underlay his statement that the appellant "fell short of the requisite standard of care in his response to the syncopal event on 4 February 2001" and his view that, when that event was suffered, "an ECG ought reasonably to have been performed", and at [188] the judge gave reasons for rejecting the contrary opinions of the general practitioners called for the appellant. 78 In explaining his preference the judge described the opinion of Dr Mackey that Kurt's presentation on 4 February 2001 should have resulted in further investigation, with an ECG "relevant and easily accessible", and set out Dr Chambers' basis of "a history building up over time" and knowledge of "negative neurological investigations" and "a cumulative history of funny turns that are not really properly explained"; she said that Kurt was in hospital with easy access to cardiological investigation by an ECG. The judge described the contrary opinions, in summary, that - " … all of Kurt's syncopal events, as well as his other symptoms, were explicable in terms of vasovagal faints, intercurrent illness and migraines, and that on this basis there was no cause for pursing cardiological investigations following the 4 February syncope. In his report of 5 July 2006, Dr Walsh stated: 'There was no indication for Dr Dobler to perform an ECG as the circumstances of the plaintiff's syncopal episode on 4 February 2001 were broadly similar to previously investigated episodes. In addition, he was suffering from an acute viral illness which would be likely to reduce blood pressure and aggravate any predisposition to vasovagal syncope'." 79 The judge said - "86 The divergence of opinion about whether Dr Dobler should have obtained an ECG may be due to the fact that some of the opinions, notably those of Dr Walsh and Dr Ford, expressed a view as to the response of a general practitioner when seeing a patient in his or her practice, whereas Dr Mackey and Dr Chambers emphasised that at this point Kurt had returned to hospital. Although an echocardiogram was not available at that hospital an ECG was and the test could have been readily initiated. The fact that Dr Wakatama did not ask for an ECG is not of moment - she did not know of Kurt's previous history of collapse. But, of course, Dr Dobler did and he also knew that two neurological investigations had returned negative results. With the repetition of syncopal events Kurt either had repeated benign events or had a cardiac problem. Although Dr Bunker said that many of his peers would not have performed an ECG in this clinical setting the diagnostic material available to Dr Dobler was not confined to the events on or near to 4 February 2001. To my mind Dr Dobler should have requested an ECG. Kurt was in hospital and the ECG facility was immediately available and takes very little time to arrange." 80 The appellant submitted that repeated syncopal events did not strengthen the conclusion that a third syncope was cardiogenic, and that patients who suffered benign syncopes often had repeated episodes; he said that on each occasion it was "reasonable to conclude" that there were premonitory indications and that on 4 February 2001 in particular the glandular fever was a typical trigger of benign rather than cardiac syncope. He cautioned against hindsight and, as earlier mentioned, submitted that the heart murmur was irrelevant. He submitted in particular that the availability of an ECG at Cessnock Hospital was not a reason for concluding that an ECG should have been performed. 81 Dealing first with the availability of an ECG, which was a matter separately identified by the appellant as one leading to the judge's conclusion of breach of duty, I do not think that the general practitioners meant, or the judge reasoned, that ready availability of an ECG made it an investigation which should have been carried out. The judge had in mind Dr Mackey's and Dr Chambers' references to the availability of an ECG, which on consideration of their evidence as a whole was by way of excluding as a consideration, so far as it might otherwise have been one, any difficulty in having an ECG performed. 82 The reasons given by Drs Mackey and Chambers for proper practice requiring the performance of an ECG following the syncopal event on 4 February 2001 carried great weight. The judge recorded at [58] that the appellant accepted (in cross-examination) "as a fundamental principle of diagnosis that where a patient presents with symptoms that are susceptible to more than one diagnosis, any diagnosis with a lethal potential or a serious morbidity risk should be established and treated or an attempt made to rule it out by establishing a valid alternative diagnosis". The appellant agreed that in retrospect Kurt "has suffered an event for which I've not considered the possibility". The opinion of Drs Mackey and Chambers rested upon proper practice calling for considering the possibility. They were supported by Dr Raftos, who was not a general practitioner, but the appellant as a Visiting Medical Officer at Cessnock Hospital was more than a practitioner in private practice at his own surgery and the judge was entitled to have regard to Dr Raftos' opinion. While the judge did not detail the dealing with it, he noted at [156] that a widely accepted text, Murtagh's General Practice, was "dealt with extensively in the oral evidence of the GPs", and that it "stressed that cardiac causes of syncope are often overlooked and should not be missed". 83 The opinions accepted by the judge involved that the history of three syncopal events, with a neurological cause effectively excluded, plus the unexplained heart murmur, required investigation to rule out a cardiac cause, such a cause being at the least a possibility and carrying a serious risk. I do not think error has been shown in the judge's preference for the evidence of the general practitioners called for the respondents.

Breach of duty - s 5O of the Civil Liability Act 84 The appellant submitted that the judge erred in two respects in finding that his provision of professional advice and treatment was not widely accepted in Australia by peer professional opinion as competent professional practice. The first was in taking an unduly narrow view of the relevant professional practice. The second was in declining to act upon the evidence of the general practitioners called for the appellant. 85 For the first respect the appellant referred to the judge's statement at [188] that it had not been established that it was - " … widely accepted as competent professional practice when a boy is hospitalised following a third episode of syncope, in the presence of a viral illness and recently detected heart murmur, to only treat the viral illness and not investigate the syncope or perform basic cardiological investigations."

The appellant submitted that in this "definition" of professional practice the judge wrongly confined it to the three syncopes and the heart murmur, failing to take account of Kurt's wider medical history (such as what the appellant submitted were the prodromes in relation to each syncope, the description of the neurologist of the 4 September 1995 event as a faint and the irrelevance of the heart murmur) and failing to take account of what the appellant submitted were other relevant matters (such as the cardiologists' conclusion that the second syncope was benign and the fact that viral illness was a recognised cause of benign syncope). 86 In my opinion, this misapprehends the judge's reasons. He was not defining professional practice. Section 5O(1) addresses the manner in which the professional acted, and it must be asked whether that manner was widely accepted by peer professional opinion as competent professional practice. The manner the appellant acted was aptly described as treating the viral illness and not investigating the syncope or performing basic cardiological investigations, with the description understood in the light of the judge's reasons as a whole (for example, there was auscultation, but in context the judge meant not having an ECG performed). The third episode of syncope, the viral illness and the recently detected heart murmur were in the light of his Honour's full reasons significant features of the circumstances in which the appellant acted, but it should not be thought that he failed to pay regard to the full consideration in the reasons. His Honour plainly took account of, for example, the fact that viral illness was a recognised cause of benign syncope. I do not think there is substance in this submission. 87 For the second respect the appellant submitted to the effect that, even if the judge preferred the evidence of Dr Mackey supported by Dr Chambers to the evidence of Drs Walsh, Ford and Bunker, the evidence of the latter three general practitioners remained as evidence of competent professional practice widely accepted by peer professional opinion; and that the matters stated by the judge did not displace their evidence in that respect. 88 In support of the opinion of Drs Walsh, Ford and Bunker the appellant repeated that the cardiologists all considered that the heart murmur was in fact innocent. For the reasons I have given, I do not think that this answers its relevance as an unexplained murmur. He repeated that the ready availability of an ECG did not dictate whether or not it should have been performed, which turned on appropriate investigation to assist diagnosis or management, and said that if the widely accepted competent professional practice was to treat the 4 February 2001 syncopal event as a benign syncope caused by glandular fever, an ECG would not assist in diagnosis or management but would rather be gratuitous screening for an occasional rare condition. This begged the question, and I have explained why I do not think the general practitioners meant or the judge reasoned that readily availability of an ECG made it an investigation which should have been carried out. It remains, however, to ask whether error has been shown in declining to act upon the evidence of the general practitioners called for the appellant. 89 I have described the operation of s 5O of the Civil Liability Act, and have said that the judge approached breach of duty in accordance with it. He recognised at [187] that, despite the division of opinion amongst the general practitioners, the appellant could "rely upon the opinion of experts favourable to him, if that opinion is widely held (s 5O(3))." He declined to find that the evidence of the general practitioners called for the appellant established that the appellant acted in a manner widely accepted by peer professional opinion because - "188 I am satisfied that to the extent that the opinions of the general practitioners called by the defendant differed from those of the plaintiff, this has resulted from inappropriate assumptions about the facts (for instance, that Dr Dobler could not have believed that he had detected a 2/6 pansystolic murmur), considering the significant events in Kurt's medical history in isolation, and a reluctance to recognise that when Dr Dobler saw Kurt on 5, 8, 9 and 10 February it was in hospital where an ECG could have been obtained with ease. I do not think that it has been established that it is widely accepted as competent professional practice when a boy is hospitalised following a third episode of syncope, in the presence of a viral illness and recently detected heart murmur, to only treat the viral illness and not investigate the syncope or perform basic cardiological investigations. As Dr Raftos pointed out: '…this isn't complex specialist or sub-specialist medicine. This is very simple medicine. The patient presents with a syncopal episode, simple tests to exclude cardiac disease, including electrocardiogram. It's not complex medicine, it's very common medicine that primary care people, GPs and emergency departments, practice every day or every week and it doesn't require any specific technology or any specific specialist knowledge'." 90 Before exploring the judge's reasons in this respect, some of these matters should be amplified. 91 The inappropriate assumptions about the facts were illustrated by one example. Earlier in his reasons the judge had said that Drs Walsh, Ford and Bunker had doubted whether a general practitioner could confidently identify a heart murmur as pansystolic (the appellant had identified the heart murmur detected on 1 February 2001 as a 2/6 pansystolic murmur), and had observed that for that reason their initial views that no cardiac investigation was required were "not of particular assistance" (at [76]). The judge had noted that, when asked to accept that the appellant believed that he had identified a pansystolic murmur, the doctors considered that an echocardiogram should have been performed. Thus correction of the "assumption" that the appellant could not have believed that he had detected a 2/6 pansystolic murmur did not bring them to the view that an ECG should have been performed. The "assumption" could nonetheless properly influence the judge, in his acceptance of their evidence, in that they had initially provided their views on a basis which in effect took out of the circumstances in which the appellant acted the detection of a heart murmur, and that (as a reading of the transcript shows) they had some difficulty in putting aside their doubt that the heart murmur had been identified as pansystolic. 92 The respondents submitted that other matters which the judge must have had in mind as inappropriate assumptions about the facts could be seen in the reasons and the evidence. 93 First, at [68] the judge said - "68 I was also impressed by Dr Bunker, who was prepared to make reasonable and appropriate concessions which tended to qualify his primary position. This was not always the case with Drs Ford and Walsh. The position is clearly demonstrated by the evidence they gave as to whether the clinical note made by Dr Dobler on 29 June 1998 of the single word "migraine" was adequate. Drs Ford and Walsh said that it was, but Dr Bunker conceded that a more detailed note was required. I have no doubt that the note which Dr Dobler made was insufficient." 94 Secondly, at [72] the judge said - "72 As I have related, Kurt later underwent a second EEG following sleep deprivation. Again, no neurological irregularity was indicated. Although it was agreed by all of the general practitioners that such a result would not have suggested a cardiological disorder, Dr Mackey and Dr Chambers noted that the results increased the probability of a non-neurological cause, including a cardiogenic cause. Because there are only three major causes of syncope, vasovagal/hypotension, neurological and cardiological, the position taken by those doctors is logical. As the possibility of a neurological cause recedes the other two must both require greater consideration. However, Drs Bunker, Walsh and Ford thought that an increased probability of a non-neurological cause made a provisional diagnosis of vasovagal syncope more likely. The three of them indicated that a cardiological cause would still not have entered their thinking at this point. I did not find that conclusion convincing and to my mind good medical practice should have kept the possibility of a cardiological cause in mind until eliminated." 95 It may be that neither of these is correctly described as an inappropriate assumption about the facts. They are, however, material to whether the opinion of Drs Walsh, Ford and Bunker should be accepted as widely accepted peer professional opinion. 96 Going to the judge's reference to considering the significant events in Kurt's medical history in isolation, I have already discussed the differing opinions of the general practitioners. The judge said at [82] that the general practitioners called for the appellant "were of the view that all of Kurt's syncopal events, as well as his other symptoms, were explicable in terms of vasovagal faints, intercurrent illness and migraines, and that on this basis there was no cause for pursing cardiological investigations following the 4 February syncope". From his preference for the evidence of the general practitioners called for the respondents, he did not accept that finding the syncopal events individually explicable obviated the need to investigate a cardiogenic cause. 97 In the course of the evidence counsel for the respondents put to Dr Bunker that his approach had - " … been to isolate every item that occurs in the chronology and look for any justification or a general justification for what has been done or not done, as opposed to looking at this patient and his entire history as a continuum through which, as Dr Mackey and Dr Chambers say, you should be on a continuum yourself searching for a diagnosis." 98 Dr Bunker answered no, and Dr Ford said that his answer would also be no. In the ensuing explanations, Dr Bunker said that he had not approached each incident on its own but had "looked at the cumulative record", and rejected "your proposition that I am only looking at this incident by incident". Dr Walsh referred to looking at "this evolving case", and Dr Ford said that - " …the most important thing during these proceedings and looking through the notes has been for me to create a longitudinal story of what's been going on with this patient, rather than looking at it segmentally, so I reject the suggestion that we are segmenting it.

So my view is obviously to reject the proposition that I am segmenting looking at the care. In fact, what I have tried to do is look at the continual picture and that is the picture I have had looking at it now." 99 The thrust of this was against considering the significant events in Kurt's history in isolation. The judge must have considered that the three doctors nonetheless did so; not that they were telling untruths, but that the manner in which they said they were taking the incidents together was flawed because, they thought that, having come to the view that all Kurt's syncopal events and other symptoms were explicable for other reasons, there was no need to undertake a cardiological investigation following the syncope on 4 February 2001. 100 Going then to reluctance to recognise the ready availability of an ECG, the respondents drew attention to discussion in the general practitioners' concurrent evidence of the availability and use of ECG machines in hospitals. In the course of the discussion Dr Walsh said that he did not have an ECG machine in his surgery. (The respondents submitted that Dr Bunker said the same, but that is incorrect; he was referring to an ECG measuring aid.) The respondents said that there was "a clear flavour to the evidence of the general practitioners for the defendant that they were not acknowledging that this patient was in hospital". It seems to me that the judge was referring to what he had said at [86], that Drs Walsh and Ford "expressed a view as to the response of a general practitioner when seeing a patient in his or her practice". The judge meant, in my understanding of the reasons in the light of the evidence, that the views of Drs Walsh and Ford were of less weight because they spoke from the standpoint of a general practitioner consulting in his surgery which was not necessarily equipped with an ECG machine, rather than a general practitioner seeing a patient at a hospital with ready access to an ECG. 101 The judge went on in [188] to refer to Dr Raftos' observations that it was simple medicine; he referred at [189] to Dr Chambers' evidence that it "is irrational not to do this" as significant, and while not finding irrationality was clearly enough of the view that the reasons for performance of an ECG were obvious and strong. 102 There is, with respect, some obscurity in the judge's reasons in relation to declining to find that the evidence of the general practitioners called for the appellant established that the appellant acted in a manner widely accepted by peer professional opinion. 103 For s 5O, the question is not necessarily one of preferring A's evidence of acceptable professional practice to the evidence of B. If B's evidence supports the manner in which the defendant acted, the question is whether there is established a professional practice widely accepted by (rational) peer professional opinion. If A and B both gave their evidence as evidence of whether the manner in which the defendant acted accorded with professional practice widely accepted by (rational) peer professional opinion, the question will be one of preferring A's evidence to that of B, but otherwise it will be one of acceptance of B's evidence, its weight and what it establishes. The conceptual distinction must be made, although in the acceptance of B's evidence and its weight regard to the evidence of A is likely to remain relevant. 104 If Dr A states that in the doctor's view the defendant's conduct demonstrated lack of reasonable care, skill or judgment, it may be inferred (if not expressly stated, as it should be) that the doctor is applying a standard which the doctor believes to be widely if not generally accepted by professional peers. If that view is supported by the relevant medical literature, wide acceptance may be established, although it may be necessary to allow some degree of latitude for errors of judgment not amounting to breach of the standard of care. If, as in the present case, the standard required that for the purposes of differential diagnosis an available and appropriate test be undertaken, the reasonableness of the standard and the likelihood of wide acceptance may readily be found. On the other hand, if Dr B states that the defendant acted in a manner the doctor regards as within competent professional practice the doctor may need to go further in order to establish that the lower standard is widely accepted in Australia. It may not be self-evident that many doctors would not think it reasonably necessary to undertake, for the purposes of an established procedure of differential diagnosis, a reasonably available and otherwise appropriate test. In these circumstances, for the court to "prefer" the evidence of Dr A to that of Dr B may mean no more than that the former has established an appropriate standard and that the latter, while demonstrating the doctor's own belief that the departure from the proposed standard is acceptable, has not satisfied the court that the approach is widely accepted. 105 It is not entirely clear whether, in what he said of the opinion of the general practitioners called for the appellant, the judge was expressing a preference for the opinions of the other general practitioners as to whether the appellant acted in accordance with professional practice widely accepted by (rational) peer professional opinion, or whether he meant that the evidence of the general practitioners called for the appellant should not be accepted as establishing widely accepted professional practice supporting the manner in which the appellant acted. Inappropriate assumptions about the facts would go to acceptance of the evidence as establishing a relevant professional practice, and the other matters to which I have referred in the preceding paragraphs also go rather to acceptance in its own right of the evidence of the general practitioners called for the appellant. 106 It may be that the explanation lies in the basis on which the general practitioners were giving their evidence. They consulted in conclave and produced answers to questions. The document recording the questions and answers began - "For the purposes of all of the questions set out below, the standard of care required by law of a medical practitioner providing a service to a patient, is that the medical practitioner act in a manner that (at the time the service is provided) is widely (but not necessarily universally) accepted in Australia by peer professional opinion as competent professional practice, unless the peer professional opinion being relied upon is irrational." 107 The key question and its answer was - " F. The Total Picture 16. Having regard to all of the following elements: (a) Kurt's syncopal episode of September 1995;

(c) the Defendant's referral of Kurt to Dr Wilkinson;

(d) Dr Wilkinson's having attributed the syncopal episode of Septhe apparently pre-syncopal events leading up to the Defendant's referral of Kurt for a sleep-deprived EEG [sic];

(e) the negative result of the sleep-deprived EEG (illustrating no epileptiform activity);

(f) on the Plaintiff's case only - Kurt's further syncopal event of 29 June 1998, whilst approaching the Defendant's surgery;

(g) the finding by the Defendant on 1 February 2001 of a 2/6 pan-systolic murmur radiating to the axilla;

(h) a negative chest x-ray result on 2 February 2001;

(i) a further syncopal episode in Kurt's home on 4 February 2001;

(j) the heart rate recorded for Kurt in the hospital records of 4-5 February 2001; and

(k) the morbidity (sudden death) rate for undiagnosed repeated cardiogenic syncope, was it consistent with the standard of care to be expected from a general practitioner in the position of the Defendant that at no time in the period in excess of five years between September 1995 and February 2001 was Kurt investigated for, or referred for specialist investigation of, a possible cardiogenic cause for his episodes of syncope? Having regard to the elements above Dr Mackey and Dr Chambers feel that the standard of care has been deficient and he should have been investigated to exclude serious diagnoses. Dr Walsh, Dr Ford and Dr Bunker: Dr Dobler's care was consistent with the standard of care to be expected from a general practitioner." 108 The conclave had been preceded by individual reports, but the document used the language of s 5O and set the scene for different answers to what was widely accepted by peer professional opinion as competent professional practice. The concurrent evidence was given against the background of the document. It was a situation of A and B both giving their evidence as evidence of whether the manner in which the defendant acted accorded with professional practice widely accepted by (rational) peer professional opinion. 109 In any event, in my opinion, the judge considered that the evidence of the general practitioners called for the appellant should not be accepted as establishing widely accepted professional practice supporting the manner in which the appellant acted. That is evident, it seems to me, from the reasons given for the difference of their opinions from those of the general practitioners called for the respondents and the subsequent references to what Dr Raftos and Dr Chambers had said, all pointing to the opinions being unacceptable in their own right as establishing such a professional practice. 110 On either understanding of the judge's reasons, I do not think error has been shown. Whether as preference for the evidence of the general practitioners called for the respondents or as acceptability of the opinions as establishing a professional practice widely accepted by (rational) peer professional opinion, it was well open to the judge to come to the view he did, and within the appellate constraints earlier mentioned there is no occasion to overturn his decision.

Causation 111 The appellant submitted that an ECG carried out shortly after 4 February 2001 and prior to the cardiac arrest on 11 February 2001 in all likelihood would not have revealed LQTS, because -

(a) it was not open to the judge to conclude that a viral illness was the trigger to Kurt's long QT interval;

(b) contrary to the judge's finding, the syncopal event on 4 February 2001 was benign and unrelated to the cardiac arrest on 11 February 2001; and

(c) even if the syncopal event on 4 February 2001 had a cardiogenic cause, in all likelihood the ECG would not have revealed a long QT interval. 112 In the event that this Court concluded that there was a chance, although less than a fifty per cent chance, that the ECG would have revealed LQTS, the appellant submitted that Rufo v Hosking was incorrect so far as it was held that a plaintiff could recover for the loss of a chance of a better outcome in a medical negligence case. 113 The appellant put the general submission that the judge was in error in his [176] so far as he considered that proof in a legal context was governed by considerations of legal responsibility and legal causation was established by the application of common sense to the evidence as a whole. As to the first, he said that legal responsibility had to be proved, in the present case by proof that an ECG carried out on or shortly after 5 February 2001 would have revealed a long QT interval. As to the second, he said that common sense did not govern when expert scientific opinion was taken into account and given weight, because the expert opinion enabled the judge to come to a conclusion by the application of the scientific criteria to the facts: he referred to Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [59] per Heydon JA. 114 I do not think that the judge misdirected himself. 115 The judge contrasted considerations of legal responsibility with the establishment of scientific absolutes. Proof sufficient for legal responsibility is on the balance of probabilities, and may be established by circumstantial evidence or by inference and, as "balance of probabilities" indicates, short of scientific certainty. In Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, in which the use of epidemiological studies to establish causation was considered, Spigelman CJ said at [93] - "In some cases medical science cannot determine the existence of a causal relationship. Such a state of affairs is not necessarily determinative of the existence or non-existence of a causal relationship for purposes of attributing legal responsibility. Epidemiological evidence may be able to fill the gap." 116 The judge cited from State of New South Wales v Allen; in a slightly more full citation, Priestley JA said - "2 The decision at first instance is a paradigm example of a feature of fact finding often found in cases involving medical issues. That feature is the major cleavage between proof of a fact in non criminal court cases to the satisfaction of the fact finding tribunal on the balance of probabilities and proof of a fact for scientific purposes to the satisfaction of those expert in the particular field of science. The latter kind of proof is much more rigorous and demanding than the former. 3 The two kinds of proof are quite different in their objects and methods, but are frequently the cause of confusion when medical issues are concerned. In many such cases, experts in the field of the relevant medical science give evidence of their expert opinion concerning the medical issue. Trained in the scientific method of proof, some such experts find difficulty in adjusting themselves, when giving evidence in court, to the lesser requirements of legal proof, which, looked at from their scientific standpoint, they regard as inferior and unreliable. An expert who gave evidence for a party in litigation where there has been an adverse result reached by application of the legal standard of proof is quite likely to advise the party that the result is an unscientific and unsound one. Hence, many appeals by the indignant losing party: the various trials and appeals in Hocking v Bell , (see the decision in the Privy Council (1947) 75 CLR 125)), provide a classic example." 117 Assistance from expert scientific opinion does not negate the use of common sense in coming to a conclusion as to causation in law, including in the application of the scientific criteria to the facts. It should of course be borne in mind that common sense may not accord with what science can establish, and a layman must guard against substituting an untrained opinion for expert guidance, but that does not mean that common sense has no part to play in judge's fact finding. In the passage from Makita (Australia) Pty Ltd v Sprowles on which the appellant relied it is made clear that the scientific evidence is to be considered together with the other evidence in the case, and that the decision is for the judge. 118 The judge's point was, as he stated expressly, that the issue of causation could not be answered with scientific certainty. It nonetheless had to be answered according to the requirements of legal proof.

(a) A viral illness as the trigger 119 The cardiologists agreed that LQTS could be caused by genetic or environmental factors or a combination of the two, and that the environmental factors included stressors which activated the sympathetic nervous system. A viral illness such as glandular fever could activate the sympathetic nervous system. 120 The judge's reasons included - "161 It is apparent from the literature that in LQTS malignant events are usually precipitated by specific triggers. The most common triggers are exertion or emotional stress. As Vincent notes in "Heterogeneity in the Inherited Long QT Syndrome" (1995) 6(2) Journal of Cardiovascular Electrophysiology 137 at 143, "The classic symptom of the syndrome is syncope/sudden death occurring during exercise, fear, sudden noises, or other emotional stress." What these triggers have in common is that they activate the sympathetic nervous system, which led Schwartz to conclude in 1985 that "The strong association between the syncopal episodes and physical or emotional stress has constantly pointed to a critical role of the sympathetic nervous system in the genesis of the malignant arrhythmias typical of LQTS" ("Idiopathic Long QT Syndrome: Progress and Questions" (1985) 109 Am Heart J 399 at 404). This is consistent with the views expressed by the cardiologists in this case, whose difference of opinion largely comes down to whether Kurt's viral illness (which could have activated his sympathetic nervous system) precipitated the two syncopal events that occurred in February 2001." 121 Dr Silberberg, called for the appellant, agreed that the physical stress to which Schwartz referred in 1985 included someone debilitated with glandular fever, and Professor Saul and Associate Professor Richards included a viral illness amongst the stressors which activate the sympathetic nervous system. 122 The appellant's submission essentially rested on the proposition that viral illness had not been identified in the medical literature as a trigger for arrhythmia caused by LQTS. As the judge observed at [174], for that reason Professor Harris and Associate Professor McGuire were not prepared to recognise a viral illness as a precipitating factor; hence their opinions that an unknown or random trigger caused the 11 February 2001 arrhythmia. In the appellant's submission, if the cause for that arrhythmia was random or unknown, no conclusion could be reached as to whether it would have been revealed by an ECG performed on or shortly after 4 February 2001. 123 However, there was expert evidence amply supporting the judge's conclusion that the probable trigger to Kurt's long QT interval was a viral illness, in February 2001 his glandular fever. 124 All the cardiologists were impressively qualified, but Professor Saul was a paediatric cardiologist and saw five to ten children a month in connection with syncope; his experience and his publications were particularly extensive. Professor Saul explained the absence of specific reference to viral illness in the medical literature in the course of the concurrent evidence of the cardiologists - "PROF McGUIRE: Your Honour, I see a lot of patients with abnormal heart rhythms and quite a few patients with long QT Syndrome. I have never seen a single example of a case where the arrhythmias were reliably precipitated by viral illnesses. I don't believe there is any evidence that viral illnesses cause arrhythmias in long QT syndrome, and perhaps the other experts could discuss whether they have ever seen another example. PROF SAUL: I can comment, your Honour. I think that what we tried to do was come up with a statement that we all agreed to that would help preface some of the differences in the answers, so that your Honour would be a little bit aware of where the background was. With regard to those stressors, I think we all agree that in this case the viral syndrome seemed to precipitate the arrhythmias, certainly on February 11 and possibly at the times of syncopal events beforehand. So Professor Richards and I thought that one of the stressors in this case was viral illness. There was some disagreement and so what we said was activate the sympathetic nervous symptom, which is the adrenalin response. Even though Professor McGuire might not have heard of a specific case where a viral illness was responsible for the arrhythmia, I think we would all agree that in long QT syndrome anything that activates the sympathetic nervous system can indeed precipitate arrhythmias and certainly a viral illness is one of the things that does activate the sympathetic nervous system. … PROFESSOR McGUIRE: As we have both agreed previously, patients with long QT Syndrome can have arrhythmias without any of these factors being present. You are postulating a new factor that hasn't been documented in the literature previously: would you agree with that? PROF SAUL: No, I wouldn't agree because in the literature sympathetic stressors are what is talked about and I believe if you looked at any of the databases you would see that sometimes there were viral illnesses, but to me it doesn't matter because we only have the viral illness in him. We don't have electrolyte abnormalities. We don't have any significant drug effects. We don't have myocardial ischaemia. We don't have brain injury prior to the arrest. We don't have significant bradycardia. We don't have hypothermia. The only thing we have is the stress of his current viral illness and his history is such that all of his events occurred during viral illness. Regardless of the stressor and precipitated events that, as you said, we disagree. Professor Richards and I would say that the prior syncopal events, just like the malignant syncopal event, was precipitated by the viral illness, but nonetheless, that was all that was going at the time and it was going on." 125 While Professor McGuire thought that LQTS was the most likely explanation for the cardiac arrest on 11 February 2001, he did not feel able to identify a precipitating event other than viral illness, hence the random or unknown precipitator. Professor Richards said that it was "conceivable that the viral illness was simply incidental and probably is of no consequence", but that "sympathetic stressors are important." Professor Saul's report included that, for reasons he gave, it was "virtually certain" that a 12 lead ECG and/or continuous cardiac monitoring on and after February 5th would have revealed evidence of the long QT syndrome", and his evidence included that "[w]e almost know for sure in him it was a viral illness". He summarised the position - " … on the case of Professors McGuire and Harris that it was an unusual case with certainly unclear precipitators and for the case of Professor Richards and myself that it is not as unusual a case with probable stressors of the viral illness aspect." 126 The appellant submitted that when arrhythmia arising from LQTS could occur randomly, and viral illness although a common condition had not been identified as trigger for arrhythmia caused by LQTS, it was speculative to conclude that viral illness triggered Kurt's syncope events. He said that Professor Saul's opinion lacked a scientific basis for acceptance by the judge. I do not agree. In my opinion, no error has been shown in that acceptance.

(b) Cause of the syncopal event on 4 February 2001 127 The appellant submitted that it was not open to the judge to find, relying on Kurt's known viral illness, that the syncopal event had a cardiogenic cause. He repeated the submission that viral illness had not been identified as a trigger for arrhythmias caused by LQTS and that it was speculative so to hold, and as well submitted that -

(i) viral illness was a known cause of benign syncope, and had probably caused the syncope of 29 June 1998;

(ii) the syncope on 4 February 2001 had been preceded by premonitory signs ("Dad" and putting the glass down);

(iii) it could not be reasoned from viral illness on both 4 February 2001 and 11 February 2001 that the viral illness was the common factor, since medications had been given to Kurt prior to 11 February 2001 which could have triggered the cardiac arrest; and

(iv) so far as ECGs performed after 11 February 2001 showed long QT intervals, there were other known stressors which could explain them. 128 The judge was alive to other possible precipitating factors for the long QT interval after 11 February 2001, but accepted the view of Professor Saul that the stress of the viral illness was the dominant factor. Professor Saul and Associate Professor Richards were of the opinion that the syncopal event on 4 February 2001 was a manifestation of Kurt's LQTS. Whether there had been a prodrome to the syncopal event on 4 February 2001 was itself viewed differently by the cardiologists, and was a matter of degree to be taken into account with all other considerations. Although viral illness could cause benign syncope, the finding that the syncopal event on 4 February 2001 had a cardiogenic cause was made with regard to much more than that fact, and it was open to reason from the common viral illness and the malign syncope of 11 February 2001 to that finding with the viral illness as the precipitating factor. Two highly qualified cardiologists had done so. 129 The appellant's submissions came down to the contention that, of the differing opinions expressed by the cardiologists, the judge should not have preferred the one he did. The opinions of Professor Saul and Associate Professor Richards had the force of their reasoning and their expertise, and in my opinion it has not been shown that the judge was in error in accepting and acting upon them.

(c) Revelation of a long QT interval 130 The appellant submitted that even if the syncopal event on 4 February 2001 had a cardiogenic cause, since the QT interval was dynamic and could quickly change (as Professor McGuire stated and Professor Saul agreed) it was necessary to ask how quickly Kurt's QT interval would have returned to normal. He submitted that after the cardiac arrest the long QT interval had either wholly or substantially corrected itself within a short time, and that that was a sound indicator that the QT interval was likely to have soon corrected itself after 4 February 2001 so that an ECG on 5 February 2001 or the subsequent days would not have revealed a long QT interval. 131 The ECGs of 12, 20 and 21 February 2001 revealed a long QT interval, although as has been seen the appellant submitted that it was to be attributed to precipitating factors such as medication and the cardiac arrest itself. As has been noted, the ECG performed on 11 February 2001 was abnormal but as to QT interval Professor Harris and Associate Professor McGuire thought that it did not reveal a long QT interval but Professor Saul and Associate Professor Richards thought that it did. The self-interpreting ECG machine itself categorised the interval as normal, but human interpretation is a better guide. There was some debate over further evidence concerning or possibly concerning interpretation of the ECG of 11 February 2001. Dr Bastian of John Hunter Hospital referred in a report to normal ECGs, but it is not clear that the ECG of 11 February 2001 was amongst them. Dr Leitch made a notation in the hospital records, which was unclear in both the writing and the meaning and the appellant said but the respondents disputed meant no long QT interval. The better evidence is that Dr Leitch, a cardiologist, reviewed the ECGs and in a later report wrote that the QT interval in that of 11 February 2001 was "moderately prolonged". 132 In accordance with the opinion of Professor Saul and Associate Professor Richards, the viral illness explained the ECGs showing a long QT interval in the period after the cardiac arrest; in their opinion, including the ECG of 11 February 2001. All agreed that it was abnormal, but its quality made it difficult to interpret. Professor Saul said - "I think Professor Richards and I would say that the event on the 11th and the event on the 5th, the syncope on the 5th or on the 4th were both manifestations of the long QT Syndrome. He had the other manifestation in 1995 around the time of a viral illness as well, so to me, it seems like his long QT Syndrome is provocated [sic] by viral illnesses. We have already argued that. So we know there is a difference of opinion there, but nonetheless he had two symptoms, on February 4 and February 11. So, to me, since he is having symptoms, any ECG in that range would be likely to be abnormal, particularly between the 5th and 10th. As you get closer to the 11th we know he had severe abnormality on the 11th. He had an arrest, and that is as clear an indication of the long QT Syndrome as there is. As you build up to the 11th it becomes more and more illogical to think that there would be no arrhythmias and no presence of the long QT. I understand there is a difference of opinion, so I am giving my opinion that, as you get closer to the event on the 11th, the likelihood of finding abnormalities goes up exponentially." 133 Professor Saul's evidence included - "So if you look at the peri-event period, somewhere between 3 out of 4 and 4 out of 4 ECGs are abnormal. That is really the basis for me saying that in the peri event [sic: ? pre-event] period we would have the same likelihood. … For me the whole period from February 1 to February 21 is a period of viral illness which has exacerbated this boy's long QT Syndrome and that's where the likelihood comes from." 134 As the respondents pointed out, the position of Professor Saul and Associate Professor Richards was supported by medical literature which the judge summarised, the judge saying - "159 The literature also deals with the question of what an ECG is likely to reveal following an episode of syncope. It is widely accepted that due to the transient nature of arrhythmias, an ECG following an arrhythmic syncope may be normal. Hence, a longer period of Holter monitoring may be necessary. Arrhythmias found on Holter monitoring will not be etiologically significant unless they occur while the patient is simultaneously displaying symptoms (e.g. by losing consciousness), but they may reveal arrhythmias that will warrant investigation in and of themselves. Again, it should be stressed that the likelihood of finding an arrhythmia is not the same as the likelihood of finding a prolonged QT interval. As Boudoulas et al note in the 2001 edition of Hurst's The Heart , "because of the transient nature of most arrhythmias, the routine ECG is generally of limited value. It is, however, very useful in identifying patients with abnormalities that may predispose individuals to syncope" (p 1005). A long QT interval is an abnormality that may predispose individuals to syncope.

160 A 1993 study by Garson et al, titled "The Long QT Syndrome in Children," is of especial relevance to this case. It involved 287 children (under 21) who presented with unexplained syncope, seizures or cardiac arrests, or with a family history of LQTS. Seventeen children had a normal QT interval (i.e. a QTc of less than 0.44) at presentation. It was found that "Among all 17 patients with normal QTc at presentation, in three, the QTc was found to be more than 0.44 at follow-up; each of these was 0.46 or more. All three of these patients had serious symptoms [serious symptoms were defined as cardiac arrest, syncope, or seizure] or sudden death at follow-up, whereas none of the patients in whom the QT remained at less than 0.44 had either symptoms or sudden death at follow up" (p 1869). To my mind this is very significant, given that Kurt does not consistently have a long QT interval on an ECG. This study indicates that in patients who do not always manifest signs of LQTS, an ECG subsequent to LQTS associated symptoms such as syncope is likely to record a long QT interval. This is significant if the syncopal event of 4 February was caused by an arrhythmia that was a manifestation of Kurt's LQTS, particularly in light of the fact that a long QT interval was arguably recorded in the first ECG taken after Kurt's cardiac arrest (in any event, it was agreed that this ECG was "abnorma l "), and a long QT interval was definitely recorded in his next three ECGs." 135 The premise in the appellant's submission, namely that the long QT interval corrected itself within a short time after the cardiac arrest, was not necessarily correct. Professor Saul, Associate Professor Richards and the interpretation of Dr Leitch were against it. The opinion of Professor Saul and Associate Professor Richards was sound in reasoning and supported by their expertise. The appellant's submission once more came down to the contention that of the differing opinions the judge should not have preferred the one he did, but it has not been shown that he was in error. 136 In my opinion, the appeal in relation to causation on the balance of probabilities fails. As to loss of a chance, the appellant did not submit that, if the chance that an ECG administered after 4 February 2001 would have revealed Kurt's LQTS were 65 per cent or greater, the respondents should have only 65 per cent or some greater percentage of the damages they were awarded. Accordingly, it is not necessary to consider Rufo v Hosking. No other submission in relation to discounting the respondents' damages was made.

The result 137 I propose that the appeal be dismissed with costs. 138 IPP JA: I agree with Giles JA. 139 BASTEN JA: I agree with Giles JA. **********

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