Filmalter v Swenson [2025] QSC 32

• [1] The plaintiff, Mrs Filmalter, sues the defendant, Dr Margaret Swenson, for negligence, breach of contract and breach of ss 60 and 61 of the Australian Consumer Law (Competition and Consumer Act 2010 (Cth)). Mrs Filmalter alleges Dr Swenson inappropriately advised her and treated her with the prescription of the antibiotic Norfloxacin on 8 February 2014. Mrs Filmalter alleges the Norfloxacin has caused an allergic reaction which led to extreme photosensitivity which has persisted for over a decade. Mrs Filmalter further alleges that her allergic reaction to Norfloxacin was a cause or contributing factor to the development of cerebral vasculitis, leading to the stroke that she suffered in 2017, causing her to be further disabled.
• [2] The defendant, Dr Swenson's case is that she was not negligent in her treatment and advice of Mrs Filmalter, has not breached ss 60 and 61 of the Australian Consumer Law, and that Mrs Filmalter has not suffered from an allergic reaction nor been rendered photosensitive. Dr Swenson also argues that the stroke that Mrs Filmalter suffered in 2017 was not related to the ingestion of two tablets of Norfloxacin on 8 February 2014.
• [3] Exhibit 1, the so-called Trial Bundle, consists of 3,885 pages of information, some part of which is of great assistance as it provides reliable information on events which occurred many years ago. References to page numbers in these reasons are references to the page numbers in Exhibit 1. The credibility of Mrs Filmalter, Mr Filmalter and Dr Swenson is in issue.

• [4] Mrs Filmalter was born on 18 October 1973, in Durban, South Africa. Mrs Filmalter married Mr Neil Filmalter in 1996. Mr and Mrs Filmalter have three daughters: Crystal, currently aged 31; Harley, aged 25; and Aqua, aged 17.
• [5] Mrs Filmalter accepts that when she was a child she would have been prescribed penicillin, although she cannot recall when that was. Mrs Filmalter recalled that when she was aged 21 years in or about 1994, she was suffering from something like sinusitis and was prescribed and took a penicillin-based antibiotic. Mrs Filmalter recalls that she thereafter developed large blisters on the softer skin areas of her body, including her hands and elbow joints and under her feet. Mrs Filmalter said those blisters became larger then popped open. Mrs Filmalter recalls being treated by Dr Postma and Dr Meltzer at the Bluff Medical Centre in Durban, South Africa.
• [6] Mrs Filmalter's evidence was that Dr Meltzer diagnosed the blisters as being an allergic reaction to the penicillin, and that Dr Meltzer advised Mrs Filmalter not to take penicillin-based antibiotics. Mrs Filmalter contended that Dr Meltzer told her that she was suffering from Stevens-Johnson syndrome. Mrs Filmalter says she had the blisters and the condition for about two to three weeks even though she only ingested one or two penicillin tablets. Mrs Filmalter's evidence is that once her blisters healed, she had no further problems and thereafter did not take penicillin ever again. Despite Mrs Filmalter being familiar with the Bluff Medical Centre and being on good terms with Dr Meltzer, Dr Meltzer's records were not tendered.
• [7] According to Mrs Filmalter, in August 2007 she was suffering from "tonsillitis or something like that" and so her general practitioner Dr Meltzer prescribed her an antibiotic.[1] Until Mrs Filmalter received the records of the Entabeni Hospital on or about 24 March 2014, Mrs Filmalter did not know the name of the drug Avelon Dr Meltzer prescribed her. It was a fluoroquinolone which is in a different class of antibiotic from penicillin.
• [8] According to Mrs Filmalter, after she was prescribed the Avelon, she took one tablet before she went to work in the morning. While she was driving to work, she began to feel a severe burning on her back. She felt very flushed and hot and she was itchy and uncomfortable and also suffered from "quite a bit of shortness of breath".[2]
• [9] Mrs Filmalter then called her husband, Mr Neil Filmalter, on her car phone and had him meet her on the off-ramp and drive her to the Entabeni Hospital. Mrs Filmalter then described dramatic scenes at the Entabeni Hospital. Mrs Filmalter described that she was placed on "a whole load of machines". A drip was inserted, she was panicked and felt a lot of dread. Mrs Filmalter alleged that whilst she was in the hospital she was sitting down, that her body swelled and the buttons on her shirt all popped open. Mrs Filmalter remembers multiple doctors coming towards her with syringes "full of stuff", and nurses came and checked her and that "Multiple doctors, they were stabbing needles into my stomach with syringe stuff".

"She presented with problems of an acute anaphylactic reaction. This was associated with the use of Avelon at 7am on the morning of the 28th August. She developed acute facial flush 1 hour after ingesting the Avelon. She presented to hospital with more problems of breathing. She had extensive swelling of both her hands and feet and she had a preceding history of a flu-like illness for about four days duration and associated hoarse voice and rhinitis. The patient had just ingested Avelon earlier that morning prior to coming into the hospital. She previously used Avelon in the past but on this occasion developed an acute reaction... She is a known patient with penicillin, sulphur and niacin allergy."

• [20] Dr Khan then recorded on clinical examination at a time unknown and not recorded in any of the hospital notes that:

"She had puffy hands bilaterally and they were swollen. Her lips were not swollen. Her oral signs were easily visualised and mallompati 2. She had extensive facial flushing which apparently had decreased. Her blood pressure was 120/70 and this was stable...The assessment therefore was that of a patient with acute anaphylaxis reaction. Subsequent management was that she was given Phenergan intramuscularly. In addition she was started on IV Hydrocortisone and intermittent Ventolin nebs and IV fluids...She has been advised to stay away from antibiotics including penicillin and Avelon."

• [21] Dr Khan's report is curious. As stated above, in the Entabeni hospital records the final diagnosis as an allergic reaction and not an anaphylactic reaction. This has been confirmed by analysis of the records by both Professor Katelaris and Dr Davidson. As said above, I accept that analysis is correct. Therefore, I accept Dr Khan's analysis is not correct as the presenting problem was an allergic reaction, not acute anaphylaxis or an acute anaphylactic reaction.
• [22] Dr Khan's clinical examination results of a pulse rate of 100 beats per minute and a blood pressure of 120/70 does not accord with any of the recordings in the Entabeni hospital record. Although I observe that on page 1348, which is said to be the patient record, presumably the ward record of page one of four, and the subsequent page 1349 being page four of four, that two pages of the record have been misplaced. I accept Dr Khan's notes of examination may be in the missing two pages.
• [23] It is plain, however, from Dr Dorfling's involvement that it preceded Dr Khan's involvement as Dr Dorfling dealt with the acute emergency situation. Dr Khan's note of subsequent management as Phenergan being given intramuscularly is at odds with the hospital records of the Phenergan being administered intravenously. I do, however, accept, as Dr Khan records, that his advice was to stay away from antibiotics, including penicillin and Avelon.
• [24] The most important part of the record is on pages 1344 and 1345 where Mrs Filmalter's allergies are ascribed to penicillin, sulphur and Nicene only. I accept Mrs Filmalter's evidence at T1-29 line 12 that she was scared by what occurred at the Entabeni Hospital in terms of the allergic reaction and what had occurred. I do not accept Mrs Filmalter's evidence that she swelled so much that the buttons on her shirt popped off, as swelling is not noted in the Entabeni Hospital records at all and Dr Khan recorded swelling of Mrs Filmalter's hands and feet.
• [25] Further, I do not accept that she was stabbed in the stomach by several doctors, as the records recall that she was provided with a J-loop into her left arm and that the medications were infused through the cannula in the normal fashion. Further, I do not accept that she was in fact severely ill, as indicated by her high blood pressure results, but rather I accept that the elevated blood pressure was as a result of the consumption of the Phenergan.

"Within this period, I treated her for the following adverse allergic reactions to specified antibiotics - PENICILLIN, SULPHUR MEDICATION, NIACIN and MOXIFLOXACIN."

• [28] Dr Metzler has used a curious sentence structure in indicating that until 2008 he treated Mrs Filmalter for reactions to specified antibiotics, i.e. Not all antibiotics. Dr Metzler has included niacin in his list of specified antibiotics, and, at least in Australia, niacin is not an antibiotic. Dr Metzler includes in his report that Mrs Filmalter suffered a reaction to penicillin in 1997, with the diagnosis being Stevens-Johnson syndrome/allergic reaction and the action plan as "advised patient not to ingest penicillin or sulphur." [my underlining]
• [29] Dr Metzler then records in respect to the 2007 incident that the diagnosis was anaphylaxis, the result was full recovery, no pending issue, and the action plan was to "stay away from the mentioned antibiotics by Dr M S Khan." The report of Dr Metzler does not sit easily with the report of Dr Khan, as Dr Khan's advice was to stay away from antibiotics, it would seem all antibiotics, including penicillin and Avelon.
• [30] Whereas Dr Metzler's note is to stay away from the "mentioned antibiotics" and in Dr Khan's report, the "mentioned antibiotics" are penicillin and Avelon. Dr Metzler's report of 7 August 2022 also makes plain that after the 1997 reaction to the penicillin, Dr Metzler's advice to Mrs Filmalter was not to ingest penicillin or sulphur. And so, as discussed below, he administered the fluoroquinolone antibiotic Avelon, which is in a different class of antibiotics from penicillin which caused the 2007 allergic reaction.
• [31] The first sentence of Dr Metzler's report suggests that it is his view that Mrs Filmalter is allergic to specified antibiotics and not all antibiotics.
• [32] In 2008, the Filmalter family left South Africa and came to Australia, first settling in Adelaide. After three years in Adelaide and in or about 2011, the family relocated to Queensland. According to Mrs Filmalter, between 2007 and 2014 she did not take antibiotics.
• [33] In December 2013, Mrs Filmalter commenced working short day shifts as a trainee dump truck operator at the Burton Mine. According to paragraph 37 of Exhibit 2, Mrs Filmalter worked as a dump truck operator for 6.3 hours on 3 February 2014, 7.15 hours on 4 February 2014, and 7 hours on 5 February 2014.

• [34] After her work was completed on 5 February 2014, Mrs Filmalter attended the Moranbah Hospital where she was assessed by Nurse Tredgett. According to Mrs Filmalter, Nurse Tredgett performed a urine test which came back positive for blood in the urine. Mrs Filmalter said that the nurse wanted her to stay overnight at the Moranbah Hospital, which Mrs Filmalter refused as she had to go home to her children. Mrs Filmalter says that Nurse Tredgett then advised her to go and see one of the local town doctors in the morning.
• [35] The records of the Moranbah Hospital at pages 1377 to 1380 are more informative. The records show that Mrs Filmalter attended the Moranbah Hospital at 6:20pm on 5 February 2014 and was assessed by Nurse Tredgett. Importantly, Nurse Tredgett recorded Mrs Filmalter reported that she had an allergy to penicillin, but in addition, whilst not being an allergy, Nurofen would give Mrs Filmalter heartburn.
• [36] A full set of observations were taken and the urine test results contained at page 1378 revealed that there was blood in Mrs Filmalter's urine. The presenting complaints were haemorrhoids and abdominal pain. Kidney stones were recorded in the history. A full set of observations were taken, with the outstanding result being that Mrs Filmalter complained of pain at a level of 7 out of 10. The second urine test report at page 1379 is not particularly clear, but appears to indicate trace elements of leukocytes with, as far as legible, the report including "leu trace".
• [37] The detailed nursing note of Nurse Tredgett at 1380 includes Mrs Filmalter being in a great deal of pain, having pain in her back and on four quadrants of her abdomen. Nurse Tredgett consulted the on-call doctor, Dr Nieuwoudt, who prescribed 30mg of Ketorolac. However, Mrs Filmalter refused that drug as it contained codeine and Nurofen. Nurse Tredgett advised Mrs Filmalter to return to hospital if concerned, but to see her general practitioner the following day for treatment for haemorrhoids and her kidney stones.
• [38] According to her quantum statement, on Thursday 6 February 2014, Mrs Filmalter worked for 7.10 hours and then after work attended at the Moranbah Medical Centre.

• [39] An important controversy of fact between the parties relates to what Mrs Filmalter advised Dr Swenson concerning a history of allergy in the first consultation on the afternoon of Thursday 6 February 2014. The first area of controversy as to what occurred in the consultation of 6 February 2014 is who was present at the consultation.
• [40] That issue is surprising because in paragraph 3(g) of the second amended statement of claim filed 5 April 2024, Mrs Filmalter alleged that at the consultation on 6 February 2014, she advised Dr Swenson that "her husband was away, and she was scared to take any medication that may cause her to have a reaction". That allegation is admitted by paragraph 3A of the second amended defence of the defendant filed 1 July 2024. It is, of course, impossible to accept that admitted fact if, in truth, as deposed to by both Mr and Mrs Filmalter, that Mr Filmalter was sitting beside Mrs Filmalter in the consultation.
• [41] Counsel for Mrs Filmalter argues with reference to the passage at T5-98, lines 1 to 6, that Dr Swenson's note "Further stated that as her husband was away she was scared to take any medication that may cause her to have a reaction" was not in any way a reference to what was occurring at the time of the consultation, but rather was a recording that Mrs Filmalter had a concern about suffering an allergic reaction because her husband was working away.
• [42] The submission was that such an interpretation was not inconsistent with Mr Filmalter being present at the consultation. I do not accept this submission.
• [43] On 6 February 2014, Dr Swenson discussed the possibility of prescribing antibiotics after the receipt of the radiology and pathology tests. Given that Dr Swenson would be aware of the short half-life for the antibiotic (made plain by the fact that they need to be consumed sequentially to have an effect), it does not make any sense for Dr Swenson to make the recording she did, if in fact Mr Filmalter was sitting in the consultation room. Presumably if Mrs Filmalter said "my husband is away" when he was sitting beside her then Dr Swenson would have noted such an odd allegation.
• [44] Dr Swenson had an hour-long consultation with Mrs Filmalter, and it seems to me that it is clear that Dr Swenson only recorded the salient features of the consultation and not everything that was said. It is difficult to accept, and I do not accept that Dr Swenson would note as a salient feature that Mr Filmalter was away unless it was the case that Mr Filmalter was not present at the consultation. If Mr Filmalter was in fact present at the consultation, there would be no point in making the note.

"...So you have a patient who's been in pain. It meant that she had a low grade fever but that it could have been higher because she would have been taking medication for her pain..."

• [61] Although the Moranbah Hospital notes record Mrs Filmalter refusing to take codeine and Nurofen, it does record (page 1380) that she was given and had taken Panadol for pain relief. A third indication of infection relied on by Dr Swenson was the heart rate of 109, which Dr Swenson at T5-37 indicated was a mild tachycardia. Mrs Filmalter also had a higher than normal blood pressure of 125 over 90.[10]
• [62] I accept Dr Swenson's evidence that she undertook a careful abdominal examination of the four quadrants of the abdominal area with the result that she had pain in her kidney area, again consistent with renal colic or kidney stones. I accept Dr Swenson's evidence at T5-43, also based upon, page 1329, that Mrs Filmalter had given a history of feeling unwell since November last year and feeling particularly nauseous for the last two weeks.
• [63] I accept Dr Swenson's evidence at T5-45 that that history was consistent with infected kidney stones:

"...struvite stones, they can actually get an infection where the bacteria actually live inside the stone, and then they sort of break out and somebody feels unwell, and then it just carries on. It doesn't get worse than that, unlike a urinary tract infection in the respect of bacteria just sitting there and they're just breeding, breeding, and you're just getting sicker and sicker. But I didn't know whether potentially she had a pyelonephritis because it sounded more like it was upper urinary tract infection, not lower."

• [64] Infection of the struvite stones is also confirmed by the acknowledged error in the note at page 1330, where the pathology requested was meant to include struvite but erroneously referred to stelazine.
• [65] I accept Dr Swenson's evidence and as contained in notes, page 1330, that she requested pathology and radiology.
• [66] The consultation on 6 February 2014 was a long consultation, approximately an hour long. According to Mrs Filmalter, during the long consultation, Mrs Filmalter and Dr Swenson were chatting about Durban, South Africa, and the discussion included chatting about the Entabeni hospital.
• [67] Dr Swenson's recollection of the conversation is quite different. Dr Swenson was firm in her evidence that Mrs Filmalter did not identify the name of the hospital where she was admitted in South Africa in 2007.[11] Dr Swenson went on to say that she asked where the hospital was, and asked if it was the well-known Cape Town Hospital Groote Schuur. The identification of the hospital where Mrs Filmalter received treatment is an important issue, as Dr Swenson did advise Mrs Filmalter to obtain the notes from the hospital to confirm her recollection that the antibiotics to which Mrs Filmalter had previously had the allergic reaction was penicillin and sulphur.
• [68] I accept Dr Swenson's evidence that she did say to Mrs Filmalter it was a pity that her hospital admission did not occur in Durban because Dr Swenson could have identified the hospital as she had trained in radiography at Addington Hospital in Durban, and her mother had worked in administration at St Augustine's Hospital, also in Durban. In addition, Dr Swenson's close friend, Ms Horsley, was a radiographer at St Augustine's Hospital and Entabeni Hospital. Dr Swenson's evidence, which I accept, is that she used to go and visit her friend Ms Horsley at Entabeni Hospital.[12] It seems to me then highly likely that had Mrs Filmalter recalled the name of the hospital or mentioned that the hospital was in Durban, then it would have been identified by Dr Swenson.
• [69] As Dr Swenson recalled,[13] after Mrs Filmalter said she could not remember the name of the hospital, Mrs Filmalter said "maybe her husband could".
• [70] In my view, Dr Swenson's version of the consultation is a logical and consistent version of events, and that which I accept. Had Mr Filmalter been present, then, given the dramatic events of 28 August 2007, in my view, it would have been inevitable that Mr Filmalter would have named the hospital as the Entabeni Hospital. After all, he was a superintendent of police at that stage who assisted his wife by driving her to the hospital. Furthermore, it seems to me that if that had occurred, there is little doubt, given the importance of the records of the hospital, that Dr Swenson would have noted the identity of the hospital as the Entabeni hospital.

• [75] On the morning of Friday, 7 February 2014, Mrs Filmalter attended on Dr Swenson at Moranbah Medical for a further lengthy, approximately one-hour-long consultation. According to Mrs Filmalter, Dr Swenson arranged for both blood and urine tests, and Dr Swenson repeated her advice to go to Nebo Road in Mackay to obtain the radiology. Mrs Filmalter's evidence, which I accept in this regard, was that Dr Swenson told Mrs Filmalter that she may need to be placed upon antibiotics, to which Mrs Filmalter replied that "I've already told you, I can't take antibiotics."[14]
• [76] Mrs Filmalter then said that Dr Swenson again explained there were different classes of antibiotics and just because a person is allergic to one class does not mean they are allergic to other classes of antibiotics. Mrs Filmalter also said that she discussed her general health, her weight, and her career aspirations with Dr Swenson. For any person with a self-admittedly poor memory due to the effects of strokes, to recall the detail of a conversation from over a decade ago is, in the absence of notes, an extraordinary feat. Although I accept Mrs Filmalter's evidence that in fact her general health, her weight, and her career aspirations were discussed in the consultation of 7 February 2014, it seems to me this flows from the fact that they are recorded in Dr Swenson's notes of the consultation of 7 February 2014.
• [77] It is also plain to me that Mrs Filmalter has closely studied Dr Swenson's notes. Mrs Filmalter took great umbrage at the entry "?BPD?" contained in Dr Swenson's note of 26 February 2014. Mrs Filmalter was outraged that Dr Swenson could have considered that Mrs Filmalter had a borderline personality disorder, and Mrs Filmalter contrasted that with Dr Swenson's note on 7 February 2014 of "Mentla [sic] health - happy with family and career - lookign [sic] to progress in next two years - no pending issues" as proof not only of the fact that her mental health was fine, that Dr Swenson was inconsistent in recording a good mental health on 7 February 2014 with the suggestion of a borderline personality disorder on 26 February 2014.
• [78] It seems to me plain that Mrs Filmalter has read and studied all of the medical notes relating to her case, and there is therefore the added difficulty of attempting to discern what actually is in Mrs Filmalter's memory concerning what occurred on a particular date, what Mrs Filmalter believes to be in her memory as a result of repeatedly reading the medical notes relating to her case, and what, if any, level of reconstruction of memory has occurred through these processes.

"...that's based on the fact that struvites can do little things or it can be a big one and burst open and it's, like, woof, you're gone. You know, like, in a few hours, you can be really, really, really ill."

• [83] It was notable that this part of Dr Swenson's reasoning was not challenged in cross-examination, nor by any of the experts called in the plaintiff's case. Dr Swenson in fact explained that it was because she considered that Mrs Filmalter might have become very ill in a very short period of time that she wanted her to go straight to Mackay. However, Mrs Filmalter resisted that advice, and so she booked a follow-up consultation on the morning of Friday, 7 February 2014.
• [84] I accept, Dr Swenson wanted the CT scan undertaken immediately and had to call up the senior doctor ("Fritz") to get the CT scan immediately and she would do this only in urgent or emergency cases.[20] Dr Swenson referred to her notes at page 1329, and explained that she took the observations from Mrs Filmalter, with a blood pressure of 107 over 76, a heart rate of 93, BMI of 30, but she did not record Mrs Filmalter's temperature. Dr Swenson conceded that it is likely that she did not record Mrs Filmalter's temperature because she was afebrile.
• [85] This is an important issue in the context of the submission from the plaintiff's case that Dr Swenson had altered the medical records. I reject that submission. I think it highly likely that if a medical practitioner, was to alter the records, the first thing they would do in respect of the consultation of 7 February 2014 is to record a very high temperature, which would be confirmative of a severe infection. In fact, the temperature is not recorded at all.
• [86] Dr Swenson fairly conceded that this was likely because there was no abnormality in the temperature strongly suggests that the medical notes had not been altered or inappropriately changed by Dr Swenson. If Dr Swenson was wishing to alter her notes to support her case, then one would expect a high temperature recording on 7 February 2014 and a recording of severe symptoms being suffered by Mrs Filmalter on 8 February 2014.
• [87] As that is absent, is another confirmation of the accuracy of the notes. I find that Dr Swenson has not altered medical notes at Moranbah Medical Centre. I do accept Dr Swenson's evidence that she did on 15 January 2015 not only make the entry recorded at pages 1326-1327, but also make the same notation to page 1321, by inclusion of the words "Norfloxacin - urticaria, hives, Severity: Caution" and adding the handwritten note "(Added 15 January 2015 in case she sees someone here again) ..."

• [90] As a mature age student, and after several years of training, Dr Swenson commenced her practice as a general practitioner on Monday, 3 February 2014. In her first week, Dr Swenson was rostered on from 8:00 am to 8:00 pm from Monday to Friday. Dr Swenson does not recall if she was rostered on to work on Saturday, 8 February.
• [91] In any event, she attended Moranbah Medical Practice on the morning of Saturday, 8 February 2014, specifically regarding Mrs Filmalter, as she was "looking for those results, because I was really concerned about her and I didn't know if she was---where she was in that pattern of---of infection. You know, it could have been resolving. It could have been getting worse..."[22] I accept this evidence.
• [92] Dr Swenson's notes of the telephone consultation of 8 February 2014 would appear to be uncharacteristically short. They record in total the following:

Results report received. PT in Mackay - needs to start oin[sic] ABs immediately for UTI - spoke to her

Phoned and faxed through script to Rural View Chemmart in Mackay.

Script written-GENRx Norfloxacin (Tablets) 400mg-Rpts:1"

• [93] These notes, as Dr Swenson said, indicate the time that Dr Swenson opened the note was at 8:55 am. Dr Swenson explained that she did not have remote access at that stage to the medical files. That is why she came to the clinic, as she was concerned about Mrs Filmalter's health. The CT scan results had been reported the previous day. It was on the morning of 8 February 2014 that Dr Swenson became aware of the positive finding of multiple renal calculi in the left lower pole of Mrs Filmalter's kidney and a solitary renal calculus in her right kidney.
• [94] As shown on pages 1333-1336, the blood and urine results were not reported until 10:26 am on 8 February 2014. On page 1339, it shows that at 11:43 am on 8 February 2014, Dr Swenson prescribed norfloxacin tablets for "acute bacterial enterocolitis: Complicated urinary tract infection." It is important to record that I accept Dr Swenson's evidence as verified by page 1332, that whilst Dr Swenson had access to most of the blood and urine test results, she did not have access to the culture results. The culture result was in fact not reported until 12 February 2014 at 12:54 p.m.
• [95] In respect of the results of the urine pathology, at page 1336, Dr Swenson explained that the absence of erythrocytes, being the red blood cells, informed her that the stones in Mrs Filmalter's kidneys were not causing bleeding from the kidneys or tubes, or anywhere in the renal passage. The leukocyte result of 30 was more than three times the normal level of less than 10 and was reported by the pathologist with the indication of a plus sign beside leukocytes. As Dr Swenson said, which appears to be accepted by all experts, the positive finding of leukocytes is an indicator of infection, but by itself was not definitive of an infection.
• [96] Dr Swenson commented that the result of trace protein in the urine indicated that there was damage up in the kidney. Again, no expert disputed that conclusion. The urine result showed a PH of 8, which is evaluated and slightly alkaline, being an indicator of an infection being present, but that was not relied upon by Dr Swenson.[23]
• [97] In respect of the blood pathology recorded at 1335, Dr Swenson referred to the MCV result at 76, just below the normal range of 80 to 100, which indicated to Dr Swenson that the haemoglobin was down, but that could be normal for Mrs Filmalter. Dr Swenson noted, the white cell count at 7.9 was in the mid-range of normal at 3.5 to 12.0. Dr Swenson's comment was that she could not take a lot from the blood results other than an iron deficiency, it may have indicated "an acute phase reactant, which means when there is inflammation, they get used up".

"...because she'd mentioned that she had this allergy to these two antibiotics, and she was really quite anxious. Um --- actually, not just about antibiotics, you know, about this thing going on for so long, and what it is, and so on. Right? She just wanted to know, you know, what it was and get to the bottom of it. It was affecting her life ... I wanted to make sure that if I was going to put her on antibiotic --- remember, I was going to talk to her first --- um --- that is was going to be another class, far removed, not often used in this um --- country, and not often used actually as much in South Africa either. Um --- they use ciprofloxacin more. But ... I took my time ... and looked up some things, and I looked up --- when I --- the therapeutic guidelines, ETG, they are called."

• [101] Dr Swenson explained she looked up the therapeutic guidelines for a class of antibiotics which were not related to penicillin or sulphur. The ETG suggested that the best choice in those circumstances was the fluoroquinolone class. So either ciprofloxacin or norfloxacin. Dr Swenson explained that she made the choice of norfloxacin because ciprofloxacin is more widely used. Because norfloxacin was not widely used, Dr Swenson looked at the product information and considered the potential side effects. After determining that norfloxacin was the best drug to use, Dr Swenson then needed an authority approval because the drug was not often used and kept for serious cases. Dr Swenson got authority from a pharmacist out of the Pharmaceutical Benefits Scheme only after she had first discussed the prescription of that medication with Mrs Filmalter. I accept her evidence in this regard.
• [102] Dr Swenson's evidence,[28] which I accept, is that when she telephoned Mrs Filmalter on the morning of 8 February 2014, the first thing that she asked was how she was feeling, and that Mrs Filmalter said that her pain was better being on the medication, but she was still feeling really unwell. Dr Swenson said, and I accept, that she explained to Mrs Filmalter her urine and blood results which were suggestive of a mild upper urinary tract infection and that she was worried that it could turn into something more without the intervention of antibiotics.
• [103] Dr Swenson explained:[29]

"So my concern was we had a patient that had been unwell since November, and had not sought any treatment until February, had long-term known renal calculi, that had expressed that she'd been having nausea, she had been having intermittent fevers, she had been feeling unwell. She --- it was affecting her life, and then in the last two weeks and the pain, and the pain - but it - the pain got worse. These symptoms got worse. And then it got worse again. That's why she went to the ED, and I was concerned that, you know, that was Thursday, that there was something definitely, it could really go - um, she could get really ill and get uri --- um --- sepsis --- urosepsis, and because of her reluctance to want to go, she expressed it to me, "to go to a hospital or to go and seek medical help", that was a concern too, so to intervene then would've stopped the progress."

• [104] I accept that Dr Swenson explained all of her concerns to Mrs Filmalter. Dr Swenson explained that it was a good plan for her to get the antibiotics and to be with her husband when she first took the first one and to note if there was any reaction. Dr Swenson explained it was unlikely that there would be a reaction as there was a whole different class of drug. But in the unlikely circumstance there was a reaction, she should cease immediately and go to the base hospital in case of a further reaction.
• [105] Dr Swenson said, and I accept that she advised Mrs Filmalter that with allergic reactions, you can have an allergic reaction straight away, or you can have a delayed one like eight hours later or so, and therefore it would be a mistake not to go to the hospital if she had a reaction from the first medication. Dr Swenson did indicate, because her patient was anxious, that it would be appropriate if she go with her husband and sat with her husband in the car with a bottle of water and had the first medication outside the Mackay Base Emergency Department, so if anything happened, she was right there, and her husband could run in and get assistance.
• [106] Dr Swenson said, and I accept, that she prescribed the drug after having referred to the expert guidelines, and she explained the side effects of the drug, which included the side effect of photosensitivity.
• [107] I accept Dr Swenson's evidence of the content of the discussion of 8 February 2014 in most respects. I accept Dr Swenson's evidence[30] that she told Mrs Filmalter that she still had a choice not to take the antibiotics. I accept Dr Swenson said this as it is consistent with Mr Filmalter's evidence at T3-40. As Mrs Filmalter, was extremely reluctant to take antibiotics and needed some convincing that it would be safe for her to take those antibiotics, I find Dr Swenson did provide strong advice to take the antibiotic otherwise Mrs Filmalter was "going to be violently ill".[31]
• [108] The only aspect of Dr Swenson's evidence I do not accept, in relation to the consultation of 8 February 2014, is that Dr Swenson's evidence was that she spoke only to her patient, Mrs Filmalter, on the morning of 8 February 2014. Mr And Mrs Filmalter's sworn evidence was that they were both part of the conversation on speakerphone and that Dr Swenson did speak directly to Mr Filmalter. I am conscious that page 1328 records Dr Swenson's note of "speak to her," indicating speaking to only Mrs Filmalter, however, it is a short note and did not go anywhere near recording all that occurred.

• [121] On the morning of Sunday, 09 February 2014, Mr and Mrs Filmalter had another argument about Mrs Filmalter not taking the antibiotics. Mr Filmalter argued that Mrs Filmalter had to take the antibiotics, otherwise she'd get quite sick, and then, according to her evidence, Mrs Filmalter snatched the antibiotics off the counter and put a tablet in her mouth and said to Mr Filmalter, "Are you happy now?"
• [122] According to Mrs Filmalter, after taking the first tablet, Mrs Filmalter felt a bit tingly, but brushed it aside and did not think any more of it, although that is perplexing, particularly in view of her own history of severe reactions to antibiotics and her arguments with her husband and discussions with Dr Swenson. Logically, Mrs Filmalter ought to have known that any minor sign ought to alert her to seek medical attention. She did not do so as, I infer, she was angry.
• [123] According to Mr Filmalter, there was another big argument before she took the second tablet in the afternoon. According to Mrs Filmalter, whose evidence on this I accept, it was after she took the second tablet that she felt her ear canal was burning, she felt flushed, very hot, and a burning sensation over her back and arms. She also felt flushed, had shortness of breath, and considered herself suffering from an allergic reaction. Upon feeling these sensations, Mr Filmalter drove Mrs Filmalter to the Mackay Base Hospital.
• [124] Mr Filmalter arrived at the Mackay Base Hospital at 10:28 pm. A history of having a reaction to two doses of norfloxacin is recorded. Mrs Filmalter described skin itching and burning but denied any respiratory distress. Mrs Filmalter was offered Phenergan but declined it, but instead consumed loratadine. The doctor's notes in the emergency clinic record that Mrs Filmalter did not have a rash and denied any dizziness, nausea, or shortness of breath. The note also records "anxious+++ about taking medications."
• [125] The Mackay Base Hospital records record, and I accept, that Mrs Filmalter had a mild allergic reaction to the two tablets of norfloxacin that she had consumed.
• [126] Mrs Filmalter recalled[36] that she was given a certificate for a day off work by Dr Marden. The Mackay Base Hospital Emergency Department clinical record[37] records the attending doctor as Dr Marden. Given the passage of time, I think it unlikely Mrs Filmalter would have recalled Dr Marden's name from her own memory. I think it more likely that Mrs Filmalter recalled Dr Marden's name by studying the records from the Mackay Base Hospital. Page 1777 records the triage nurse Daniel recording an allergy to penicillin, however Dr Marden recorded a history of "severe allergic reactions to multiple drugs..."

• [129] Mrs Filmalter had a medical certificate to remain off work on Monday, 10 February 2014, and did not attend work on that day. Mrs Filmalter then returned to work on Tuesday, 11 February 2014, and worked seven hours. Mrs Filmalter returned to work on Wednesday, 12 February 2014, and worked 6.4 hours.
• [130] At 5:13 pm on Wednesday, 12 February 2014, Mrs Filmalter attended upon Dr Scholtz at Moranbah Medical Clinic. Dr Scholtz's record of the consultation in its entirety is at page 1328 and records:

"Present today concerned about pain - mostly left flank radiating to groin and thigh, but at times also pain in the right side radiating to front. CT confirm stones L and R. Urine show blood+. DX Renal calculi and pain. Plan refer to Dr Bandi to consider further management. Counsel explain at length. Script Written - Arthraxen (Capsules) 25mg."

• [131] Dr Scholtz was called and cross-examined and frankly conceded he has no independent recollection of the consultation. Dr Scholtz could do little but rely upon his notes, explain his methodology of recording all relevant information and all important examination findings. Critically, what is absent from Dr Scholtz's note is any suggestion of a complaint of or any finding of an allergic reaction or a burning or tingling or altered sensation in the skin.
• [132] Given Mrs Filmalter's history, I find it highly likely that had Mrs Filmalter been suffering from any problems with her skin on 11 or 12 February 2014, then she would have told Dr Scholtz of that symptom and Dr Scholtz would have recorded it in his notes. The fact that such recordings are absent leads me to conclude that Mrs Filmalter did not make a complaint of any problems with her skin or burning of her skin on 11 and 12 February 2014 as she was not having those symptoms. Whilst Mrs Filmalter did return to work on 11 and 12 February 2014 and felt unwell, I do not accept that she was having difficulties with her skin or any symptoms of allergic reaction on 11 and 12 February 2014.
• [133] In paragraph 52 of Exhibit 2, the quantum statement, Mrs Filmalter asserts that she did tell Dr Scholtz that her skin was burning, and it was like hot water being poured upon her, and that she told Dr Scholtz about her attendance at Mackay Base Hospital on 10 February 2014, and she showed him her visible symptoms, which included swelling around her eye, blisters and lumps on her hands and arms. I do not accept Mrs Filmalter's evidence in this regard. I prefer the evidence of Dr Scholtz.
• [134] I do not accept Mrs Filmalter's evidence that she showed Dr Scholtz her swelling, blisters and lumps and redness. According to Mrs Filmalter, the blisters were the size of the tip of her pinkie finger. In my view, this could not have been missed by any medical practitioner if that had been reported. Mrs Filmalter complained of swelling to her eye and the side of her neck, which again could not have been missed. It would have been obvious to an assessing general practitioner if there was swelling to the right side of the right eye and right side of the face.
• [135] According to Mr Filmalter, he stayed with his wife on Monday 10 and Tuesday 11 February 2014 before returning to the mines for work on Wednesday 12 February 2014. Given his seven-day roster, it is apparent that Mr Filmalter remained at his workplace between 12 February 2014 and 19 or 20 February 2014. According to the quantum statement, Mrs Filmalter worked 7.15 hours on Thursday 13 February 2014, 7.15 hours on Friday 14 February 2014. Mrs Filmalter did not work Saturday, 15 February 2014.

"My practice - the fact that there is no mention made of a specific rash says there was no such rash present on that day, that description that the patient gave was not related to a rash on that day."

• [140] Dr Scholtz's note of 17 February 2014 records that Mrs Filmalter was:

"[D]eveloping a urticaria since taking norfloxacin 10 days ago, had what sounds like angio-edema in RSA 10 years ago, did not take antibiotics since that episode. Unsure which antibiotic. Now fluctuating hives in face and neck. Plan - Explain condition and management and reassure. Use Phenergan and review in 2D. Script written Phenergan tablets 25mg and a medical certificate was provided."

• [141] I accept Dr Scholtz's note of 17 February 2014 is a summary of the salient features of the consultation, and I accept Dr Scholtz's evidence that if he had observed a rash or red blotches or anything specific, he would have expressly noted that, which he did not. I therefore do not accept that Mrs Filmalter showed Dr Scholtz any rash or blotches or any other physical signs in the consultation of 17 February 2014, but did, as the note describes, report that she had been developing hives since taking norfloxacin 10 days ago, and that the hives were now fluctuating on her face and neck.
• [142] As Dr Scholtz had provided a medical certificate for Mrs Filmalter not to work, Mrs Filmalter did not work on 18, 19, 20 or 21 February 2014. In short, Mrs Filmalter had that week off. During that week, on 19 February 2014, Dr Scholtz had a follow-up consultation with Mrs Filmalter. Dr Scholtz has noted on 19 February 2014:

"Her hives is settling. Uses Zyrtec half PRN. Listening to history she has muscle cramps back and abdomen probably SALFT, calcium or magnesium deficiency. Does not fit with renal colic. Advice -supplement. Reassure. Mention TC of six. Lose weight/diet. Review in 10D if not settle."

Dr Scholtz's evidence[42] was that Ms Filmalter's hives did not concern him as an issue. This is consistent with Dr Scholtz's notes of the hives settling, with the major part of the entry relating to back and abdominal pain.

• [143] In paragraph 59 of Exhibit 2, Mrs Filmalter deposed to attending on Dr Scholtz on 19 February 2014 as she was swollen, had blisters and her body felt like she was burning. I do not accept Mrs Filmalter's evidence in this regard, as it is inconsistent with Dr Scholtz's note of 19 February 2014 that Mrs Filmalter's hives were settling.
• [144] In the following week from Monday 24 February 2014 until Friday 28 February 2014, Mrs Filmalter worked a minimum of seven hours per day driving large mine dump trucks and, according to her own evidence, being highly exposed to the sun. On Wednesday 26 February 2014, Mrs Filmalter attended upon Dr Swenson at 5:27 pm. Dr Swenson's note records:

"Drug reaction, photosensitive reactive - if gets too hot or in sun, skin tingles, pain to her face when in sun, swelling to face getting better. Atopy - prev asthma, eczema and hay fever. Plan ?BPD. To use - Claratyne one a day. Sunscreen 50+ to face. Ventolin as required."

• [145] It's important to record that Dr Swenson's note of 26 February 2014 is the first recorded complaint to a medical practitioner by Mrs Filmalter of suffering from any type of photosensitive reaction. That complaint is recorded 15 days after the ingestion of the two tablets of Norfloxacin on Sunday, 9 February 2014. Although the entry of 26 February 2014 is the first record by a medical practitioner of Mrs Filmalter suffering from a photosensitive reaction, I consider it likely that the photosensitive symptoms commenced some time after the consultation on 19 February 2014 and before the consultation on 26 February 2014. Given that Mrs Filmalter was off work on Thursday 20 and Friday 21 February 2014, I consider that it is highly likely and find that the photosensitive symptoms commenced on Sunday 23 February 2014.
• [146] It is to be recalled that according to Mr Filmalter, he returned to his work at the mines between Wednesday 12 February 2014 and either 19 or 20 February 2014. As discussed above, I do not accept the contents of paragraph 54 of Mrs Filmalter's quantum statement that she suffered quite extreme symptoms whilst gardening with her husband on Sunday 16 February 2014 as Mr Filmalter was then away at his place of work. I do consider it more likely than not that Mr and Mrs Filmalter were gardening on the following Sunday 23 February 2014, when Mrs Filmalter was exposed to sun and did develop some swelling or hives consistent with Mr Filmalter's evidence.[43]
• [147] What, of course, is most perplexing is that if the symptoms were as extreme as described by both Mr and Mrs Filmalter, that it would have been viewed as a severe allergic reaction requiring immediate medical care. That did not occur, but rather there was the consultation with Dr Swenson some three days later on Wednesday, 26 February 2014. I find that Mrs Filmalter suffered from a mild form of allergic reaction in the nature of hives from exposure to sun whilst gardening on or about Sunday, 23 February 2014, and that was the first time that Mrs Filmalter had suffered from any arguable type of photophobic symptom. I find that the symptoms were quite minimal.
• [148] Mrs Filmalter did return to work and worked for seven hours or more on Monday 24, Tuesday 25, and Wednesday 26 February 2014. In my view, this is consistent with Dr Swenson's note of 26 February 2014 with the report of symptoms getting better with no observations of any photosensitive or other symptoms or any rash or any other sign of any allergic or photosensitive symptoms or any rash or other sign of any allergic or photosensitive reaction. I find as a fact that it was on Sunday, 23 February 2014, that is, 14 days after the ingestion of the two tablets of Norfloxacin, that Mrs Filmalter first believed that she suffered from any type of photosensitive symptom.

"Seen with kidney stones in Maroonbah [sic], blood in urine, treated with norfloxacin 3 weeks ago. Sunsequently [sic] has developed swelling of face, hand and feet last several days. General rash if she goes into the sun. Condition has persisted for 3 weeks. Photophobic. She says she gets lesions under her eyelids..."

• [155] Given Dr Scholtz's observations on 12 February 2014, the history provided by Ms Filmalter of a rash occurring if Mrs Filmalter goes into the sun, it cannot be accepted nor was it accepted to say that the condition has persisted for three weeks. As recorded by Dr Botha, the swelling of the face, hands and feet in the last several days is consistent with an increase of symptoms on either Saturday 22 February 2014 or Sunday 23 February 2014.
• [156] The notes of Dr Botha on 4 March 2014 are most revealing. Relevantly, it records:

"Seen by GP in Moranbah for anal lump and constipation abdominal pains three weeks ago. Tests showed picked up haematuria. CT scan showed multiple renal calculi. Took painkillers - Panadeine forte one tablet with a laxative. Two days later developed fevers and nausea. Was given norfloxacin. She says she had a mild skin reaction after the first dose, 'prickling feeling in her skin'. After second dose she developed small lumps on her skin 'goosebumps'. Nil urticaria. Nil angioedema. She stopped the norfloxacin."

She felt fine for four days until mowing the lawn, when she developed a red face and swelling of her feet and hands. Developed urticaria over her arms on different areas. Also developed facial swelling that lasted days. Left eye closed up. Then developed light sensitivity ... Developed small nodules on the palms when she showers. They resolve after 15 minutes. Rest of her body was not affected this morning. Experienced some throat swelling with difficulty swallowing. It resolved by itself. No wheezing or shortness of breath."

• [157] In my view, the history taken by Dr Botha is extremely important as it records that even after taking Panadeine forte as prescribed by Dr Swenson on 6 February 2014 "two days later developed fevers and nausea". The phrase "two days later fevers and nausea" shows that despite the paracetamol and codeine, as Dr Swenson suggested, Mrs Filmalter's condition worsened with fevers and nausea, again highly suggestive of an infection. This is also confirmatory of Dr Swenson's evidence of the telephone conversation of Saturday, 8 February 2014, where Dr Swenson recorded that Mrs Filmalter was still quite nauseous despite the Panadeine forte.
• [158] The history "She felt fine for four days until mowing the lawn when she developed red face and swelling" is also important. I do not consider the four days is accurate, but it is consistent with the history as described above, of mowing or gardening being performed by Mrs Filmalter with Mr Filmalter on or about Sunday 23 February 2014. With the initial development of red face and swelling, face swelling and hives and then most importantly, the subsequent development of light sensitivity. It seems to me from the history that the complaint of light sensitivity first occurs on or after 23 February 2014.
• [159] As discussed above, after the consultations with Dr Botha on 3 and 4 March 2014, Mrs Filmalter returned to work for 5, 6 and 7 March 2014, working between 7 and 7.5 hours, then worked 12.5 hour shifts on 11 and 12 March 2014. On 13 March 2014, Mrs Filmalter only worked five hours and finished early as she was unwell.
• [160] The only other relevant entry in Dr Botha's records is the entry of 16 July 2014, where Dr Botha records that he had organised a Skype session with the specialist Dr Kennedy, however, Mrs Filmalter walked out halfway through the session stating the light from the computer was too bright.
• [161] Mrs Filmalter's evidence is that it is not only sunlight and light from computers which causes her to suffer from some type of allergic reaction, but light or radiation from mobile phones, iPads, televisions and even microwave ovens have the same effect on her. A medical note at page 1791 records Mrs Filmalter using her mobile phone at a hospital. Mrs Filmalter's attendance, on occasion, at a restaurant and playing poker machines is also difficult to reconcile with an extreme adverse reaction to light.

• [171] Dr Brona O'Dowd, clinical neuropsychologist, administered a series of detailed neuropsychological tests to Mrs Filmalter on 24 and 25 February 2020. Mrs Filmalter was recorded as having multiple cognitive deficits, but in particular the report records that Mrs Filmalter was angry towards past professionals and "presented as a determined woman who had perfectionistic tendencies and was intolerant of errors".[44]
• [172] An outstanding feature of the multiple psychometric tests is that Mrs Filmalter had declining cognitive functioning, likely associated with her cerebrovascular accidents, (page 408) and very significant problems with her memory. At page 409, Dr O'Dowd records in respect of memory:

"Mrs Filmalter reported experiencing significant everyday memory problems (such as forgetting details in conversations and what she reads) such that she now writes everything down. Under the present structured testing conditions, there was objective evidence of moderate to severe impairments in both her verbal and visuospatial memory."

• [173] On page 413 it is recorded the test results showed in respect of Mrs Filmalter's auditory attention and working memory that she had varying scores from as low as borderline moderate deficit up to above average on a digit span test.
• [174] With respect to new learning and memory, the various psychometric tests showed Mrs Filmalter had scores between borderline moderate deficit and up to average from extremely low and severe deficit, particularly on delayed free recall. On the WMS-IV Mrs Filmalter scored an extremely low severe deficit on delayed memory.
• [175] I conclude that Mr Fillmore has a poor memory generally and therefore where her evidence conflicts with Dr Swenson's (apart from the issue of Mr Filmalter having been present during part of the conversation on Saturday 8 February 2014), I accept Dr Swenson's evidence in preference to Mrs Filmalter's evidence.

• [176] Two experienced general practitioners were called to give expert evidence as to the appropriate standard of medical care required of a general practitioner in Dr Swenson's position. Dr James Lynch was called by the plaintiff and has provided reports dated 20 May 2016, 15 June 2016, and 12 March 2021. Dr Ian Dickinson was called by the defendant. Dr Dickinson has provided reports dated 13 July 2020 and 24 April 2021. In addition, there is the conclave report of Dr Lynch and Dr Ian Dickinson dated 15 September 2023 and a memorandum of a conversation with Dr Lynch dated 29 August 2024.
• [177] On 31 July 2023, a conclave between Dr Lynch and Dr Dickinson occurred, which was facilitated by the Honourable Margaret White AO. As set out in the preliminary observation, and like most of the other experts discussed below, the expert general practitioner experts remained committed to the views as set out in their respective reports:

"...[B]ecause they disagreed as to what the preliminary pathology tests, and clinical and reported symptoms suggested. Dr Lynch opined there was no evidence, compelling or otherwise, to indicate the plaintiff was suffering from a urinary tract infection (UTI). While, Dr Dickinson took the view that both the preliminary pathology and the clinical and reported symptoms supported a tentative diagnosis of UTI."

• [178] As the Honourable Margaret White AO set out in her preliminary observation in respect of Doctors Lynch and Dickinson, "their responses to the question posed by the parties flowed from this fundamental disagreement."
• [179] The resolution of the identified fundamental disagreement is, in my view, critical to the determination of which expert's opinion ought to be accepted. As both Dr Lynch and Dr Dickinson are extremely experienced, I do not prefer the evidence of one expert over the other on the basis of experience.
• [180] Dr Lynch, on page three of his first report, commented that "if an infection was proven then antibiotics may or may not be required". On page four of his first report, Dr Dickinson opined:

"If infection in the MSU was not proven, she was therefore a patient who did not need antibiotic therapy urgently. This gave Dr Swenson the opportunity to find out the details of the previous antibiotic anaphylaxis from South Africa, and then treat accordingly."

• [181] In his Supplementary Report of 15 June 2016, on page two, Dr Lynch commented:

"I note that I have now been provided with a copy of the MSU report of a test ordered by Dr Margaret Swenson on 6 February 2014. I note the MSU report that you have provided does not reveal any evidence of red blood cells (RBC) in excess of the normal range. And I further note that the result did not reveal any urinary tract infection."

• [182] In his report of 12 March 2021, on page two, Dr Lynch repeated that "an MSU forwarded to Dr Swenson revealed neither haematuria nor urinary tract infection". On page three of the report, Dr Lynch commented that "there is nothing in the documentation that you provided that in fact, the urine sample provided by Ms Filmalter was a proper MSU." (midstream sample of urine). Dr Lynch opined that the proper MSU technique ensures that false and abnormal results were not provided by poor technique.
• [183] The critical difference between the general practitioner experts, as set out on page five of Dr Lynch's report of 12 March 2021 "...Dr Dickinson said that a preliminary report showed elevated urine, small pH (of no significance), a trace of protein and elevated numbers of leukocytes (plus cells). This was suggestive of a UTI."
• [184] Dr Lynch's comment upon that was that the urine sample was not a proper MSU but was contaminated, and "that confirms my evaluation that the urine sample (not an MSU) as being virtually worthless."
• [185] In his oral evidence, Dr Lynch strongly advocated the position that Dr Swenson ought to have known this because the pathology results with the positive finding of squamous epidermis or skin cells shows that the sample was not an MSU and therefore could not be relied upon at all. Dr Lynch did not explain why that was so. Dr Dickinson provided a contrary reasoned opinion,[45] and I accept Dr Dickinson's reasoned opinion on the issue.
• [186] Dr Lynch made it plain in his evidence given in cross-examination, that a critical part of his reasoning, was the assumption that the positive finding on the pathology of squamous epithelial cells showed that the urine sample was not an MSU, and therefore any findings of the urine sample were completely unreliable. In Dr Lynch's thesis, this conclusion was fundamental, and rendered that Dr Dickinson's opinion, that the pathology report indicated a UTI was incorrect. Dr Lynch was adamant that Dr Swenson ought to have been aware of the positive findings of squamous epidermis cells prior to prescribing antibiotics on Saturday 8 February 2014 and so should have not prescribed the norfloxacin.
• [187] The error in Dr Lynch's train of logic was pointed out to him in cross-examination, namely that he had assumed that Dr Swenson had a pathology report with positive findings on squamous epithelial cells, when in fact Dr Swenson did not, as the report with that finding was not made until 12 February 2014, i.e. It was absent on the original pathology as seen on page 1336.

"It is my opinion that Dr Swenson has no obstacle to prevent her from either telephoning, faxing, or emailing the medical institution to which Mrs Filmalter had previously been admitted to obtain the information urgently prior to initiating any antibiotic therapy..."

• [195] I reject this opinion as it is again based upon incorrect assumptions. Dr Swenson was not told the name of the hospital, nor the name of the practice, and therefore had insurmountable obstacles to obtaining the accurate information from South Africa. Even if Dr Swenson had been provided with the accurate names of the Entabeni Hospital and the Bluff Medical Centre, then I reject the opinion that the records could have been obtained instantaneously. Despite Dr Swenson recommending to Mrs Filmalter to obtain her medical records urgently from South Africa on 6 February 2014, that did not occur.
• [196] On Mrs Filmalter's second attendance on Dr Botha as recorded at page 1397, Dr Botha also advised Mrs Filmalter to get her information from her former general practitioner in South Africa and her discharge summary from her ICU admission. It would appear that advice was acted upon and somewhere between 4 March 2014 and 7 March 2014, Mrs Filmalter did seek her records from the Entabeni Hospital. Exhibit 3 suggests that on 7 March at 4:24pm, Mr or Mrs Filmalter requested the records from Entabeni Hospital, and as Exhibit 3 shows, it would appear that the request for Mrs Filmalter's file was met promptly by a request from the Entabeni Hospital for identification so that Mrs Filmalter's request for records could be considered. Exhibit 4 shows despite the request for the records being made on 7 March 2014, the records of the Entabeni Hospital were not sent until 17 days later, on 23 March 2014. I conclude therefore that whilst Dr Lynch may have on some unknown occasion received records from overseas hospital instantly, the likely timeframe for request for records from the Entabeni Hospital was in the vicinity of 17 days.
• [197] Part of the thesis of the reasoning of Dr Lynch at page 92 is that Dr Swenson "ought to not solely rely upon the patient's memory of the antibiotic" which again, it seems to me, can only be interpreted as Dr Lynch's opinion being that practitioners ought themselves obtain the records from overseas, and the ability to access that information instantaneously, prior to prescribing medication. In the circumstances of this case, as discussed above, concerning the delay in obtaining the records from the Entabeni hospital, I reject that premise or opinion.
• [198] Additionally, on page 92, Dr Lynch has assumed that Mrs Filmalter was not all that ill as she was able to continue working. That is another incorrect assumption. It is to be recalled after working seven hours on 5 February 2014, Mrs Filmalter attended the Moranbah Hospital at 7:15 pm in obvious pain and an inability to sleep beyond four or five hours because of the pain and with blood in her urine. Although Mrs Filmalter did work 7.15 hours on 6 February 2014, she was, as recorded by Dr Swenson, quite unwell such that she was certified unfit to work on 7 February 2014.

"It is my opinion based on my reading, knowledge and experience, that the damage that occurred as a result of the deficiency of Dr Swenson caused Mrs Filmalter to suffer all the symptoms and signs of which she has complained and presently suffers".

• [201] At page 97 of Dr Lynch's further supplementary report of 15 June 2016, Dr Lynch opined:

"In other words this MSU result ordered by Margaret Swenson on 6 February 2014 did not reveal either haematoma or urinary tract infections. A simple dipstick analysis of urine performed using an in-date stick would, more likely than not, on the balance of probabilities, not have revealed any indication of urinary tract infection. (Nitrate positive or haematuria)"

• [202] As discussed above I reject Dr Lynch's opinion that the urine results of 6 February 2014 did not indicate that Mrs Filmalter was suffering from a urinary tract infection. Furthermore, as is shown on page 1378 and 1379, dipstick tests were undertaken at the Moranbah Hospital, which did show positive results for blood in the urine and leukocytes. The two dipstick tests were taken at 7:01 pm and 9:09 pm at Moranbah Hospital, and although the results are somewhat faded and difficult to read, there are positive results on the second dipstick test.
• [203] In my view, it is an accurate observation that the essential difference between Doctors Lynch and Dickinson is that Dr Lynch's opinion is fundamentally reliant upon a finding there was no suggestion, compelling or otherwise, that Mrs Filmalter was suffering from a urinary tract infection. As discussed above, this is, in my view, incorrect.
• [204] The conclave report of 31 July 2023 emphasises this and the strong disagreement between doctors Dickinson and Lynch on every issue.
• [205] In the General Practitioners Conclave report, the general practitioners stated their opinions concerning appropriate decision-making in treatment in paragraphs 2.1 and 2.2 as follows:

"2.1 Dr Dickinson was firmly of the opinion that the CT scan results confirming renal stones and the preliminary urine pathology report being suggestive of a urinary tract infection, the risk was that the plaintiff was suffering from a complicated urinary tract infection, with further risk of progression to urosepsis, septic shock with possibly fatal consequences unless treated immediately, certainly before the full pathology report would be available.

2.2 Dr Lynch was firmly of the view that there was zero risk to the plaintiff if not commenced on any treatment on 8 February. The clinical symptoms did not support an infection in the uro/renal area; she had no fever and was unlikely to proceed to sepsis. In the plaintiff's special circumstances of a known allergic reaction to certain drugs - the defendant had noted a history of "won't take ABs since bad reaction = husband away and scared of reaction" - it was reasonable to wait for complete pathology results"

• [206] As discussed above, Dr Lynch's assumption that Mrs Filmalter did not have a fever is, in my view, incorrect. Mrs Filmalter's temperature was 37.2 on 6 February 2014. This was consistent with a low-grade fever and, as explained by Dr Swenson, the consumption of paracetamol and Panadeine forte made it likely that any fever was being masked by the medication. Although on 7 February 2014 Dr Swenson conceded that Mrs Filmalter was afebrile, she was still reported as being nauseous on 7 and 8 February 2014. Furthermore, as set out above, Dr Botha obtained a history of both fever and nausea continuing.
• [207] I accept Dr Dickinson's opinion expressed in 3.6 of the conclave note (page 792) that Dr Swenson was entitled to rely on the drugs specifically mentioned by Mrs Filmalter as those to which Mrs Filmalter was allergic, in circumstances when the South African records could not be obtained in a timely fashion, and Mrs Filmalter did have signs suggestive of a urinary tract infection, such that it was reasonable to prescribe the different class of antibiotic.
• [208] I accept Dr Dickinson's opinion expressed in 5.2 of the conclave report. The information from South Africa was not readily accessible in the short term, and the risk of serious consequences flowing from an untreated, complicated urinary tract infection was too great not to commence antibiotic treatment promptly.
• [209] At T4-33 lines 40 to 41, Dr Lynch confirmed that he based his opinion on the basis that the results of the CT scan were not available until after the prescription of the norfloxacin. That assumption is wrong. Dr Lynch did make the concession[51] that on the assumption that the pathology results was a positive MSU result (and not a contaminated sample as Dr Lynch had presumed) then the patient would be at risk of developing urosepsis. Whilst accepting that, Dr Lynch described that as a rare complication if that did occur.
• [210] After confirming again that he had provided his opinion on the basis that Dr Swenson was positively aware that she had a contaminated result[52] Dr Lynch was asked to assume the true position that Dr Swenson did not have any pathology suggesting that the result was contaminated, but rather had a MSU pathology result showing elevated leukocytes. Dr Lynch stated his opinion that there was zero risk of an infection. When asked to explain why Dr Lynch reasoned:

"She had no symptoms, no examination, and a urine en passant which revealed contamination.

Question: Sorry - and a urine result that revealed contamination?

Answer: Yeah. Uh or - include or exclude that. I do not care.

Okay. So the pathology result that would - that shows positive indications of there being an infection results in a conclusion by you that was zero risk of that progressing to a urinary tract?

Answer: That's not correct. There wasn't evidence of infection. There were no symptoms of infection either, and no signs of infection on either examination either. None of that recorded."

• [211] The above passage is important, as it shows that Dr Lynch first attempts to justify his reasoning on the basis of the false premise that Dr Swenson knew that the urine test was contaminated when she did not. Then Dr Lynch changed his tack and said that the principal reason underlying all of his reasoning that Dr Swenson ought to have known there was a contaminated sample be included or excluded, and that he did not care. The cross-examination drove Dr Lynch to the absurd proposition that although there were pathology results showing positive indications of infection and symptoms consistent with an infection, there was zero risk of an infection. Dr Lynch also based his conclusion on the factually incorrect premise that Mrs Filmalter had no symptoms of infection.
• [212] In my view, Dr Lynch's opinions are based upon the wrong assumptions and are not logical. When asked to explain the logical inconsistency, Dr Lynch[54] argued that the absence of bacteria on the microscopy proved his assessment was correct. As discussed above, however, the microscopy was not available until 12 February 2014, which in my view is clearly hindsight bias.
• [213] Question 7(c) of the Conclave report sought the general practitioners' opinions as to the efficacy of Dr Swenson's advice in taking the norfloxacin to do so in the presence of Mrs Filmalter's husband and outside the Mackay Base Hospital in case Mrs Filmalter had a reaction. Dr Dickinson's answer 7.3.1 was "Dr Lynch was incredulous that the presence of the plaintiff's husband could be an ameliorating or reassuring factor to a competent general practitioner exercising care and skill..."
• [214] When Dr Lynch was referred to his answer 7.3.1, Dr Lynch burst out laughing and could not contain his laughter, such that court was adjourned to enable Dr Lynch to compose himself. The laughing was most inappropriate. It was, in my view, a very personal attack upon Dr Swenson which was most unwarranted. That is not the hallmark of an independent witness. Dr Lynch's response of uncontrollable laughter was also most unusual, but may have stemmed, as senior counsel for the plaintiff said, from an embarrassment as to the terms of the answer and the attack upon Dr Swenson. Although that was an inappropriate incident during the trial, it is not a matter, in my view, that is in any way of assistance in determining the preference of Dr Dickinson over Dr Lynch.

Breach of Duty of Care and s 22 Standard of Care of Professionals

• [216] Section 22 of the Civil Liability Act 2003 (Qld) ('CLA') provides:

(1) A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.

(2) However, peer professional opinion can not be relied on for the purposes of this section if the court considers that the opinion is irrational or contrary to a written law.

(3) The fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent any 1 or more (or all) of the 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.

(5) This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by a professional of a professional service."

• [217] The parties have made differing submissions upon the effect of s 22 of the CLA with the plaintiff submitting that s 22 either modifies the relevant standard of care or provides a defence to a breach of duty.[55] The defence position is that the current state of law in Queensland is for s 22 of the CLA to be considered as a defence to a finding of breach of duty.[56]
• [218] This is obiter dicta and comment which refers to s 22 (or in NSW analogue, s 5O Civil Liability Act 2002 (NSW)) as providing a defence or an excuse.[57] However as the Victorian[58] and New South Wales authorities show,[59] s 22 alters the standard of care in cases of professional negligence. Section 22 alters the standard of care when s 22(5) is not engaged and when the elements of s 22(1) are satisfied.
• [219] In Brereton JA with whom Meagher and White JJA agreed, said:

"[273] The facts summarised above are more fully recounted in the judgment of Ward P, which I have had the benefit of reading in draft. As her Honour demonstrates, this appeal can be decided without determining the questions pertaining to the "defence" under Civil Liability Act, s 5O, for the consideration of which an enlarged bench was constituted. However, as Basten JA explained in Sparks v Hobson, s 5O once invoked effectively provides the applicable standard of care:

[17] Despite the common acceptance of the provision as a "defence", that characterisation gives rise to difficulty. To be a defence carries the implication that the plaintiff must establish breach according to the general requirements of s 5B of the Civil Liability Act, following which the practitioner bears the burden of establishing that his or her conduct amounted to "competent professional practice" in the terms of s 5O(1). The heading of the section ("Standard of care for professionals") indicates its purpose. Although the heading is not part of the Act, it may be taken into account as extrinsic material in construing the provision, in accordance with s 34(1) of the Interpretation Act. In any event, it is tolerably clear that the provision sets a standard. However, if the standard is met, it follows that the conduct was not negligent.

[18] Accordingly, once s 5O is invoked, arguably the general exercise required by s 5B becomes otiose. There can only be one standard against which to judge the conduct of a professional defendant, although that standard may depend upon the resolution of conflicting evidence called by the plaintiff and the defendant. It is only if one takes the plaintiff's evidence in isolation that a two-stage process, involving the assessment of the plaintiff's claim followed by assessment of an affirmative defence, will arise. However, in a practical sense, that is not how the dispute should be determined. Rather, a judgment will be given based on all of the evidence. Nor is the exercise helpfully clarified by speaking of shifting burdens of proof. The question for the trial judge is ultimately whether the plaintiff has established that the conduct of the defendant failed to comply with the relevant standard of care. ...

[274] In my view, therefore, it is preferable to consider the challenge to the s 5O defence first. Such an approach is reinforced by the circumstance that the s 5O defence was dispositive of the case at trial."

• [220] In my respectful view, the approach of Basten JA as set out above in Sparks v Hobson is correct. The first issue is to determine if s 22(5) is engaged.
• [221] In order to determine if s 22(5) is engaged, it is helpful to have in mind breaches of duty of care which give rise to the liability alleged by Mrs Filmalter against Dr Swenson. That is set out in paragraph 17 of the second amended statement of claim ('SASOC') as follows:

"17. On 8 February 2014, a competent and skilled General Practitioner, exercising reasonable care and skill to avoid a foreseeable risk of injury to the plaintiff that was not insignificant and exercising due care and skill, would have:

(a) Investigated the history of the plaintiff's allergic reaction in 2007 in South Africa and identified the drug that was prescribed to her;

(b) Contacted the relevant hospital in South Africa and asked to be forwarded a copy of the medical record so that the precise drug that caused the allergic reaction in South Africa could be identified;

(c) Advised the plaintiff that it would be inappropriate to prescribe an antibiotic until the identity of the drug that had caused the allergic reaction in South Africa was established and delayed the prescription of antibiotics until the identity of that drug had been established or the UTI had been confirmed or established;

(d) Requested that the plaintiff undertake further investigations by contacting the hospital to precisely identify the drug to which the plaintiff had suffered the allergic reaction."

• [222] The s 22(5) issue is complicated by the conjunctive way in which paragraph 17(c) of the SASOC is drafted. Mrs Filmalter's case is set out in paragraph 17(c) is that Dr Swenson failed to advise her that it would be inappropriate to prescribe any antibiotic until the identity of the drug which caused her reaction in South Africa was established. This arguably engages s 22(5), however with the further use of the conjunctive "and" requiring of a reasonable professional in Dr Swenson's shoes to in fact delay the prescription of any antibiotic until the identity of that drug had been established, or the UTI had been confirmed or established, directs paragraph 17(c) to an action of medical professional and not "advice" as to a "risk of harm".
• [223] In respect of paragraph 17(c) of the SASOC it seems to me that s 22(5) CLA is not engaged as the failure to advise as set out in paragraph 17(c) does not relate to provision of advice of a risk of a harm to Mrs Filmalter per se. In the present case, Mrs Filmalter was acutely aware, and very scared of the prospect of having a further allergic reaction to the prescription of any antibiotic. As Mrs Filmalter was acutely aware of the risk of harm to her person, it seems to me that s 22(5) is not engaged in respect of paragraph 17(c) of the SASOC.
• [224] I would similarly conclude in respect of paragraph 17(d) that the breach of duty of care alleged against Dr Swenson, being the failure to request Mrs Filmalter to undertake further investigations by contacting the hospital to precisely identify the drug which had previously caused her allergic reaction was not a failure to give advice or a warning or information in relation to a risk of harm to the person as again, Mrs Filmalter was acutely aware of that risk. Section 22(5) is designed to protect a patients autonomy to make their own decisions about their own life, described by the majority in Rogers v Whitaker at [487] as "the paramount consideration".[61]
• [225] There are often significant problems with the implementation of s 22(1) as set out by J Forrest J in Grinham v Tabro Meats at [186] to [188].[62] After referring to the reasons of J Forrest J in Ginham, Brereton JA in Dean v Pope said at [316] and [317]:

"[316] More recently, in Boxell v Peninsula Health Keogh J adopted the construction which, unconstrained by authority, Simpson JA would have favoured in Sparks:

"[30] Section 59 of the Act was intended to introduce a modification of the Bolam principle, which was stated by Lord Scarman in Sidaway v Governors of Bethlehem Royal Hospital as follows:

''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.

[31] There are three elements which a defendant must establish to rely on s 59(1). First, that the defendant is a professional. Usually this will not be contentious.

[32] Second, a standard of care, namely competent professional practice in the circumstances. Usually a defendant will call one or more professionals who practice in the field to establish a standard of competent professional practice. It is unlikely to be sufficient that the experts who give evidence themselves subscribe to the standard. The evidence must establish peer professional opinion, that a standard of care is widely accepted by a significant number of respected professionals in the field in Australia as competent professional practice in the circumstances. If established, peer professional opinion determines the standard of care which applies for the purposes of s 59(1) of the Act.

[33] Third, that the defendant acted in a manner which satisfied the standard of competent professional practice. This is a question of fact determined on all of the evidence.

[34] The text of s 59(1) does not speak of 'a practice'. A standard of competent professional practice in the circumstances is not limited to a specific practice, and may cover professional practice in a more general sense. However, it remains necessary for a defendant to establish a standard of care which was widely accepted in Australia at the time as competent professional practice responding to the particular circumstances in which the service was provided. In Grinham, J Forrest J referred to the problems of proof inherent in the application of s 59(1). Where a defendant has responded to circumstances which involve a variety of factual considerations, or call for a series of subjective judgments, it may be difficult to prove a standard of response which was widely accepted at the time as competent professional practice by a significant number of respected professionals across Australia who do not themselves give evidence.

[317] For the above reasons, and those given by Basten JA and Simpson JA in Sparks, s 5O does not in my opinion require proof of a specific pre-existing practice. It is engaged by evidence that, in the same circumstances, a substantial body of peer professional opinion would have considered the manner in which the defendant acted to be competent professional practice. Evidence that a substantial body of competent professional peers would in the same circumstances have acted in the same way will, at least generally speaking, have that effect."

• [226] As to the first element of s 22(1), it is not contentious that Dr Swenson is a professional.
• [227] In order to determine whether the second element of s 22(1) is satisfied so as to engage the lower standard of care as set out in s 22, the evidence does not need to identify a specific practice as such, but rather whether there is a way of professional practice which can be identified as being a widely accepted (as competent professional practice at the relevant time) manner of acting (and that seems practical), per Ward P in Dean v Pope at 233. As set out by Ward P at [235] and [236] and Brereton JA at [317] in Dean v Pope, accepting the reasoning of Basten JA and Simpson AJ in Sparkes, it was emphasised that the defendant need not bring evidence of a particular specific or established practice, but rather a consideration made by reference to how an assessment of the circumstances would be undertaken by a knowledgeable and experienced practitioner.
• [228] In Grinham J Forrest J at [190] accepted an 'expert' general practitioners reliance on attendance at a large number of professional conferences, accreditation processes and surveys as evidentiary basis for a competent wide spread medical practice.
• [229] As to the second element, in my view in the present case, there is ample evidence to establish widely accepted practice. The reasoning provided in Dr Dickinson's opinion (pages 440 to 443) in short was that Dr Swenson was armed with information that was suggestive of a urinary tract infection which may have been a complicated urinary tract infection which was "more likely to progress to urosepsis which was a life threatening condition" so the proper and uncontroversial treatment was to attempt to prevent the major complications of the UTI including fatality by the prescription of a different class of antibiotic. Dr Dickinson provided further reasoning to his opinions at pages 634 to 636 and in the GP conclave report at pages 790 to 796.
• [230] At page 442, Dr Dickinson described the approach undertaken by Dr Swenson as "Commonplace in general practice and medicine in general where treatment is started 'empirically'. That is, to start treatment on the presumption of a particular diagnosis, as to wait may have disastrous results."
• [231] At page 442, Dr Dickinson after referring to the important information that had been provided to Dr Swenson said:

"With all of the above evidence in both the history and investigations, Dr Swenson was concerned that Mrs Filmalter was developing a complicated UTI with possible obstruction and requiring presumptive empirical treatment to prevent major complications including fatality."

• [232] Dr Dickinson opined that commonplace approach to treat empirically was widely accepted by peer professional opinion as competent professional practice. He was not challenged in this assertion. In his reasoning on pages 440-442, Dr Dickinson relied upon three references as set out at page 439. Dr Dickinson described[63] his 34 years of practising as a general practitioner, including acting as superintendent of various country hospitals, working with medical registrars, mentoring medical students and assisting surgeons. With respect to the MSU procedure, whilst Dr Dickinson considered Professor Murter's textbook on general practice as an important textbook for general practice, Dr Dickinson also said in respect of the uncommon use of an MSU procedure "I have read the textbook. That would be the - the pinnacle that is never reached in general practice."[64]
• [233] At T6-110, lines 1 to 3, it was put to Dr Dickinson in cross-examination that his view was that peer professional opinion would support the prescription of antibiotics to which Dr Dickinson answered "That's correct." That opinion was not challenged. Dr Dickinson again explained in re-examination at T6-114, line 5 that it was quite common in general practice and medicine in general to treat empirically, that is, if there is a concern that a patient may be developing a condition that has dire consequences, common practice is to treat that developing condition to prevent the condition from developing into that more serious condition. That is, it is proper and common general practice to treat and wait for the results that may or may not confirm the presumptive diagnosis.
• [234] Accepting, as I do, Dr Dickinson's opinion, it seems to me that the second and third elements for the application of s 22(1) of the CLA have been satisfied. Dr Dickinson's evidence establishes the empirical treatment by prescription of antibiotics of a suspected medical condition or provisional diagnosis such as a UTI is a widely accepted practice by, at the very least, a significant number of respected practitioners in the field as competent professional practice. I conclude that Dr Swenson is not in breach of her duty of care to Mrs Filmalter.
• [235] If s 22 is not engaged, then it is necessary to apply the common law of negligence as modified by the (Qld). It is not in dispute that Dr Swenson owed her patient, Mrs Filmalter, a duty to exercise reasonable care and skill in the performance of her professional duties as a general practitioner to avoid a foreseeable risk of harm to Mrs Filmalter. It is also not in issue that an allergy to an antibiotic, being one of the known side effects of an antibiotic, was a foreseeable risk of harm. What is in dispute, however, is that Dr Swenson breached her duty of care to Mrs Filmalter. The determination of this issue must be undertaken "looking forward" on prospective basis, that is, hindsight bias or reasoning is to be avoided.

(a) The probability of harm that would occur if care was not taken was low in that the prescription of the antibiotic norfloxacin was unlikely, (on the information provided by Mrs Filmalter of her allergy was to penicillin and sulphur ingestion) to cause any significant harm.

(b) In terms of the seriousness of the harm, I conclude that even if Dr Swenson were incorrect, the likely outcome would be an allergic reaction. As discussed below, the reaction in South Africa was not an anaphylactic reaction.

(c) In terms of the burden of taking precautions to avoid the risk of harm by prescribing the norfloxacin, the burden was not high in that pressing Mrs Filmalter to obtain the name of the Entabeni Hospital and then contacting the Entabeni Hospital with the appropriate authority and obtaining the records was not an overly burdensome process. The difficulty is, as discussed above, that the records would not have been received for two weeks and in the case of urinary tract infection being probably established, the risk of the progression of the urinary tract infection to urosepsis and potentially death is too high of a risk to be taken.

(d) As to the social utility of the activity which creates the risk of harm, there is great social utility in the practice of medicine generally and in the prescription of antibiotics specifically when, on the balance of probability, infection is a reasonable provisional diagnosis. This is particularly so in this case the infection could properly be described as a complicated urinary tract infection, the risk in the absence of the prescription of antibiotics is the consequence of sepsis and death.

• [241] As to paragraph 17(d) of the SASOC, Dr Swenson is not in breach of the duty of care, as she did in fact request Mrs Filmalter to undertake further investigations to obtain her medical records to precisely identify the drug which caused her reaction in 2007.
• [242] Originally it was Mrs Filmalter's case, as set out in paragraph 17(c), that Dr Swenson had breached her duty of care by prescribing the antibiotics as she ought to have delayed the prescription of antibiotics until the identity of the drug that caused the reaction in South Africa had been established. On 5 April 2024 Mrs Filmalter amended her case in paragraph 17(c) to add an alternative that the prescription ought be delayed until the UTI had been confirmed or established. As discussed above, I have rejected that as a breach of duty of care. On the evidence, the confirmation of the UTI could only have occurred after the culture had been determined by the pathology lab, which would have taken at least two days. Additionally there was a risk of a false negative result. On Dr Swenson's appropriate provisional working diagnosis of a complicated UTI, there was a risk that Mrs Filmalter's infection may have progressed to urosepsis and death.
• [243] I accept the submission of senior counsel for the defendant[66] that both parties came to court acknowledging that the plaintiff had a choice as to whether she took Dr Swenson's recommendation to consume the antibiotics. This can be observed in paragraphs 3(e), (f), and (g) and paragraph 4(d) of the SASOC. Indeed, the way in which paragraph 4 of the SASOC is framed, it is after Dr Swenson had given strong advice to take the antibiotics, Mrs Filmalter remained uncomfortable taking any medication, and it would seem, only did so after "her husband encouraged her to take the medication".
• [244] In addition to the pleadings, Mrs Filmalter's evidence[67] was that she heard Dr Swenson explain to Mr Filmalter on 8 February 2014 that if Mrs Filmalter did not take the prescribed antibiotics, she could get much sicker. In my view this is consistent only with options of taking the antibiotic as opposed to not taking the antibiotic as being discussed between Dr Swenson and Mr and Mrs Filmalter. I accept Dr Swenson's evidence at T5-64, lines 40-45 that she discussed with Mrs Filmalter the options of not taking the antibiotic but she could wait and find a general practitioner in Mackay and see them on Monday.

Sections 60 and 61 of the Australian Consumer Law

• [247] Sections 60 and 61, Schedule 2 of the Competition and Consumer Act 2010 provide:

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

1. Guarantees as to fitness for a particular purpose etc.

(1) If:

(a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;

there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.

• [248] The reference to "due care and skill" in s 60 is to a common law negligence standard.[68] I conclude that there is no breach of s 60 of the Australian Consumer Law, as Dr Swenson did, as discussed above, deliver her medical services to the plaintiff with due care and skill.
• [249] Dr Swenson argues that s 61 of the ACL has no application as Mrs Filmalter's pleading does not attempt to particularise the services that were provided, nor any particular purpose for which those services were sought nor how that particular purpose was made known to Dr Swenson. I accept that submission.
• [250] As it is plain that the "particular purpose for which the services are being acquired by the consumer" involves a subjective assessment critical to a s 61 case that matter be pled. As s 61(1)(b) makes plain, the particular purpose may be expressly stated by the consumer or it might be by implication. If by implication then the circumstances by which the implication raises needs to be pled. See Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128, per Keane CJ, Bennett and Gordon JJ at [171]-[173].
• [251] In _Merck Sharp & Dohme i_t was concluded in that case concerning the prescription for the drug Vioxx that s 74B of the Trade Practices Act was not engaged. As their Honours said at [171]:

"... The hinge on which s 74B turns is the purpose for which the consumer acquired the goods, as that purpose (expressly or implicitly) is made known by the consumer, in this case, the person from whom the consumer acquired the goods, namely the pharmacist. Identification of purpose in s 74B(1)(c) is necessarily a subjective matter."

"The purpose expressly or impliedly made known by Mr Peterson as to the purpose for which Vioxx was acquired is not to be understood as including, as a negative element of that purpose, some quality of absolute safety or complete absence of adverse side effect..."

• [253] In this case the medical services have not been defined. Is it all or any particular part of the consultation, and if so, of which date? What was the particular purpose for which those unidentified services were provided? Is it Mrs Filmalter's case that she explicitly made known that purpose to Dr Swenson or does that arise by implication?
• [254] If the medical services are considered to be the 3 consultations and the request for pathology and radiology there is no evidence to suggest those consultations were not reasonably fit for the purpose for which they were provided. Even Dr Lynch, whose evidence I reject, did not consider that Dr Swenson had undertaken any inadequate consultation.
• [255] If Mrs Filmalter's argument concerning section 61 is that the prescription of the antibiotic norfloxacin was the medical service that was not reasonably fit for the purpose for which it was provided, then I do not accept that submission. The purpose for which the norfloxacin was provided was to treat the underlying and probable urinary tract infection that Mrs Filmalter suffered from. In my view, the norfloxacin was reasonably fit for that purpose because it is a class of antibiotic which will treat the underlying infection and was of a different class to penicillin and sulphur-based antibiotics that Mrs Filmalter advised Dr Swenson had previously caused her allergic reactions. It seems to me, therefore, on the information available to Dr Swenson, the prescription of the norfloxacin was a service which was reasonably fit for the purpose for which it was provided.
• [256] As acknowledged by Dr Dickinson, when the culture pathology was received on 12 February 2014, the appropriate conclusion was that Mrs Filmalter was not likely to be suffering from an infection, and therefore the prescription of any antibiotics was wrong. That is, with the benefit of the wisdom of hindsight, Dr Swenson was wrong in her prescription of any antibiotic. It seems to me, however, that the time at which judgement ought to be made, at least in a medical negligence case, as to whether the services rendered by a medical practitioner were reasonably fit for the purpose for which they were provided, ought to be at the time when the medical service was provided. As discussed above, as at 8 February 2014 Mrs Filmalter had a probable urinary tract infection which may have progressed with fatal consequences. Prescription therefore of a class of antibiotic differing from those to which Mrs Filmalter had previously suffered from allergic reaction was, in my view, a service which was reasonably fit for the purpose for which it was provided and was a service rendered with due care and skill.

• [257] Mrs Filmalter's case on causation is pled in paragraphs 5(c), 6, 11, 12 and 13 of the SASOC. In summary, Mrs Filmalter's case is that the prescription of the norfloxacin caused an allergic reaction causing her to suffer from skin symptoms followed by:

"Reddening of the skin, particularly when exposed to sunlight or light, phototoxic symptoms including extreme sensitivity to light and headaches, and further that the allergic reaction to the norfloxacin was a cause or contributing factor to the development of cerebral vasculitis and a stroke suffered by Mrs Filmalter in January 2017."

• [258] The defence case as pled is that the plaintiff only suffered a temporary subjective itchiness as a result of the ingestion of the norfloxacin. The defence specifically denies any significant allergic reaction causing skin symptoms, any photosensitive or phototoxic symptoms as being in any way related to the ingestion of norfloxacin.
• [259] In respect of the stroke suffered by Mrs Filmalter in January 2017, the defence accepts that Mrs Filmalter suffered from the stroke but pleads that Mrs Filmalter did not suffer from cerebral vasculitis and that the stroke was not caused by cerebral vasculitis. The defence case is that the ingestion of the norfloxacin on 9 February 2014 did not cause or contribute to cerebral vasculitis or the stroke in January 2017. The defence runs the positive case that the admitted stroke of January 2017 was in fact caused by an embolic disturbance.
• [260] There is a great deal of complicated evidence concerning the issue of the injuries sustained by Mrs Filmalter after her ingestion of norfloxacin. I accept that Mrs Filmalter had an allergic reaction to the norfloxacin on the evening of 9 February 2014. I accept that the observations and diagnosis of Dr Marden at pages 1777 to 1778 are accurate, and that Mrs Filmalter had a mild early reaction to the antibiotic norfloxacin. As discussed above, as a matter of fact, I find that Mrs Filmalter had no type of photosensitive reaction between 9 February 2014 and Saturday 22 February 2014.
• [261] As discussed above, I find that on Sunday 23 February 2014, Mrs Filmalter complained of suffering from photosensitive type symptoms. Despite an enormous amount of medical consultations and investigations, I further accept that the only observation of any medical practitioner of any type of allergic reaction was the examination finding of Dr Botha on 4 March 2014 of a mild swelling to Mrs Filmalter's left cheek and side of face, with the rest of the examination being normal.[69] The finding on 4 March 2014 of mild swelling to the left cheek by Dr Botha is, however, just as consistent with a non-photosensitive allergic reaction as to a reaction of some type of photosensitive reaction.

• [262] Professor Arduino Mangoni is the professor and head of the Department of Clinical Pharmacology at Flinders University. Professor Mangoni's report of 23 February 2021 opined that there was a clear temporal cause-effect link between the use of norfloxacin and the onset of photosensitivity.
• [263] Professor Mangoni's opinion is based upon an assumed fact that on 17 February 2014, Mrs Filmalter complained to Dr Scholtz that she'd suffered from swelling, itching of the skin, reddening of the skin when exposed to sunlight or other light. As discussed above, a review of Dr Scholtz's notes of 17 February 2014 shows that this is not the case, and I do not accept as fact that is accurate.
• [264] Professor Mangoni also assumes that between February 2014 and January 2017, Mrs Filmalter continued to suffer from symptoms of hives, tingling, itching of the skin, particularly when exposed to light or sunlight. As discussed above, I find that after the ingestion of the two tablets of norfloxacin on 9 February 2014, there was 14 days of no photosensitive symptoms before the gardening occurring on Sunday 23 February 2014. It was only after that point that any photosensitive symptoms were complained of. Professor Mangoni has based his opinion on the wrong factual premise. It seems to me I cannot therefore accept the opinion of a clear temporal cause-effect link between the use of norfloxacin and the onset of photosensitivity.
• [265] Professor Mangoni describes the side effect of photosensitivity from the ingestion of a quinolone (such as norfloxacin) as being rare, that is occurring in less than 0.1% of cases of ingestion of the drug. Furthermore, the literature research undertaken by Professor Mangoni shows that (page 505) in the one-in-a-thousand case where photosensitivity may occur, it usually disappears spontaneously when the photosensitising agent, the light, has been removed.
• [266] The same paper, by Vassileva et al. (page 505) shows that in the rare one-in-a-thousand case where a person suffers photosensitivity from ingesting quinolone, is the further rare, which I interpolate as less than one-in-a-thousand case where there is a longer reaction called a persistent light reaction. In that rare, one in a million chance, persistent light reaction is observed in relation to topical photosensitisers, i.e. products placed upon the patient's skin. Such a reaction is more rarely observed systemic photosensitisation, that is, where there is the ingestion of a drug.

(a) The positive results for leukocytes in the dipstick test at the Moranbah Hospital are not included.

(b) Mrs Filmalter did not advise Dr Swenson that she could not recall the name of the antibiotics that she had suffered from that had caused her infection and her allergic reaction in South Africa, but rather positively stated that she had allergies to penicillin and sulphur.

(c) The urine specimen report on 8 February 2014, together with Mrs Filmalter's associated symptoms, did indicate that Mrs Filmalter was suffering from a urinary tract infection on 8 February 2014.

(d) On 17 February 2014, Mrs Filmalter did not complain of allergic symptoms being caused or exacerbated by exposure to sunlight or other light.

(e) It was not until on or after Sunday 23 February 2014 that Mrs Filmalter commenced to complain of any symptoms linked to exposure to sunlight.

(f) As discussed below, Mrs Filmalter's stroke in 2017 was not caused by cerebral vasculitis.

• [271] In part, Professor Mangoni bases his conclusion upon the review of several medical papers. Professor Mangoni considered that a paper by Hubicka, that supported a long-term norfloxacin-associated photosensitivity, which he opined may have occurred to Mrs Filmalter despite the lack of continuing exposure to the antibiotic.
• [272] Professor Mangoni did accept that over time there would be progressive degradation of the norfloxacin in Mrs Filmalter's organs and tissues, which ought to reduce her photosensitivity symptoms. Professor Mangoni disagrees with Professor Katelaris' assertion that any allergic reaction would be expected to occur within three days of the ingestion of the drug. Professor Mangoni considers, based on a study by Al Ahoud et al., that in exanthemaous eruptions, the rash can develop one day to three weeks after the offending agent is first given. In respect of the Al Ahoud paper, relevantly,[71] the author's comments are "the rash develops one day to three days after the offending drug is first given, although the timing can differ if previously sensitised. The eruptions appear clinically as polymorphic maculopapular lesions..."
• [273] It is important to note that the time period of development, one to three days, applies to a rash which is clinically accessible in the form of polymorphic maculopapular lesions. In this case, there is no evidence of clinically observable polymorphic maculopapular lesions appearing within one day to three weeks. The evidence from Dr Marden is that she observed no rash at all on 9 February 2014 (page 1777).
• [274] Furthermore, the time frame postulated to be one to three days is related to the rash and not to the onset of any photosensitive symptoms. Al Ahoud's paper also states[72] "Immediate urticaria occurs very rapidly after the start of the treatment within 1 or 2 hours... Delayed urticaria usually occurs several days after the administration of the medication."
• [275] In his evidence in chief, Professor Mangoni provided further evidence in response to reports of Associate Professor James Muir, a dermatologist. Professor Muir had pointed out that norfloxacin has a particularly short half-life of three hours, such that within 24 hours of ingestion, it is practically eliminated from the body and therefore cannot have a clinical effect of causing delayed symptoms.

"Clinically, drug-induced photoallergic reactions can appear as solar urticaria or as eczematous or lichenoid dermatitis predominantly on light-exposed areas. The eruption usually disappears spontaneously once the offending photosensitiser has been removed."

• [283] I do not, therefore, accept Professor Mangoni's distinction between the effects of photoallergy and phototoxicity in terms of a dose-dependent relationship. However, the article does, as Professor Mangoni has pointed out, state that there are rare instances where there is a persistent light reaction despite the lack of contact with the photosensitising substance. As stated above, that rare instance is observed in relation to topical photosensitisers, "more rarely through systemic photosensitisation".
• [284] It seems to be the proper conclusion from the Vassileva paper and Professor Mangoni's evidence that a persistent light reactor status (which is not a condition pled in the statement of claim) is possible from the ingestion of an antibiotic, but it is very, very, very rare.
• [285] Professor Mangoni agreed that norfloxacin has a very short half-life, such that its subclinical level is reached very quickly. However, he argued that only a very minimal, minuscule amount is required to trigger a photoallergic reaction.[76] Professor Mangoni accepted that photosensitive reactions occur in the outer layers of the skin, which are continually shed. As such, Professor Mangoni's opinion,[77] was that:

"There is elimination, probably, of some drugs with this [indistinct] that they're shedding, but --- photosensitive drugs are also able to give this [indistinct] effects because they remain underneath those perpetual shedding."

• [286] Professor Mangoni then stated that he was not a dermatologist, suggesting that the photosensitivity issue is in the realm of the expertise of a dermatologist. Professor Mangoni was driven to state his opinion that:[78]

"...I would say that these are individuals that, in my experience, continue to experience this manifestation of photoallergy for prolonged periods of time".

• [287] Professor Mangoni then clarified that his experience related to a literature review, but he did not have any actual professional experience of treating patients in this regard, that is, with a persistent light reactor. Importantly, Professor Mangoni stated these opinions, quite tentatively but properly because, as he again explained, "I am not a dermatologist".[79]
• [288] In terms of the literature research, with reference to the Emmett paper,[80] Professor Mangoni confirmed that in terms of his opinion that there could be long-term reactions or persistent light reactors, it was based solely on the statement in the Emmett paper.[81] The statement "This varies from weeks to many months or years in persistent light reactors" was not in the paper or anywhere else based upon any particular study, research or finding. But, it would appear to me, simply a statement in terms of the management of drug photoallergy. Although that statement does support a persistent light reactor state for some years, it is not based upon any foundation that is discernible. Therefore, it must carry little weight.
• [289] In cross-examination of Professor Mangoni, and in particular in respect of his reliance upon the Vassileva paper, and paragraph one on page 505, it was pointed out that the basis for the author's opinion was referenced by footnotes 13 and 20 to two papers, being the paper by Emmett as discussed above, and a paper by Gonzalez. As Professor Mangoni's opinions were based largely upon literature review, a copy of the Gonzalez paper was admitted as Exhibit 10.
• [290] Professor Mangoni was directed to the definition of persistent light reaction in the Gonzalez paper at page 876 of Exhibit 10, which defined persistent light reaction as:

"Persistent light reaction is a subset of photoallergic dermatitis in which the patient continues to have an eczematous dermatitis when exposed to specific radiation even after the photochemical offender has been removed from the environment. ... In addition to their expected abnormal photopatch test reactivity, these patients have abnormal MED to UVB and histological features consistent with eczematous dermatitis. The majority of cases of persistent light reactions have been associated with topical photosensitisers..."

• [291] Professor Mangoni was then shown Exhibit 11 as examples of eczematous dermatitis. Senior counsel for the plaintiff objected to the questioning on the basis that Professor Mangoni was not a dermatologist and was not sufficiently experienced to answer the question, as it was a question for a dermatologist.
• [292] Whilst that was true, the difficulty with the acceptance of that proposition to stop the cross-examination of Professor Mangoni was that Professor Mangoni had provided an opinion supportive of the plaintiff suffering from a persistent light reactor type condition. The cross-examination established that Mrs Filmalter did not have a persistent light reaction as defined because she did not have eczematous dermatitis at all upon any examination, she had never had an abnormal photopatch test reactivity and she had not displayed, despite test, any histological features consistent with eczematous dermatitis.
• [293] Professor Mangoni conceded that a persistent light reaction or any long-term photosensitive condition "is a very rare event".[82] In cross-examination,[83] Professor Mangoni conceded that his opinion was based on the pharmaceutical principles of drugs having a half-life and so the drug norfloxacin would never be totally eliminated from Mrs Filmalter's body, such that at some remnant or molecular level it would still be present in her body, such that hypothetically a minute amount could be responsible for a photosensitive reaction.
• [294] Despite his clearly extensive review of research papers on photoallergies, phototoxicities, and the ingestion of antibiotics, Professor Mangoni could not find any paper that had ever referenced any symptoms of photoallergy or phototoxicity having been experienced by any person when that person was exposed to radiation from microwaves, mobile telephones, iPads, or other electronic devices. However, Professor Mangoni conceded he did not specifically research that issue.
• [295] In my view, Professor Mangoni presented as an honest and non-partisan witness. However, I cannot accept his opinion that the condition suffered by Mrs Filmalter was in fact caused by her ingestion of the norfloxacin, as Professor Mangoni has not based his opinion upon the correct assumptions.
• [296] Furthermore, and most importantly, it seems to me the highest that Professor Mangoni's report rises is that ongoing phototoxic or photoallergic symptoms, which may be classified as a persistent light reactive syndrome, is a very, very, very rare but theoretical possibility from the ingestion of norfloxacin. That does not come close to a satisfaction on the balance of probabilities.

"Given that there was evidence that Mrs Filmalter had renal stones and haematuria, on the basis of her history and presentation to both the hospital and the general practice clinic, commencing treatment with an antibiotic approved for urinary tract infections such as norfloxacin was entirely reasonable. This drug was chosen specifically because the patient had declared an allergy to penicillin and sulphur drugs. I do believe, given the history, this treatment, on the assumptions made by Dr Swenson, was entirely consistent with the provision of a professional service that would be widely accepted by her peers as entirely appropriate."

• [301] For the reasons expressed above, I accept Professor Katelaris' opinion in this regard. Professor Katelaris, like Professor Mangoni, has not had the benefit of examining Mrs Filmalter but has had access to extensive medical records providing detailed and objective evidence as to Mrs Filmalter's medical condition. Professor Katelaris makes a number of observations. The first is that if there had been any type of allergic reaction from the ingestion of two doses of antibiotic on 9 February 2014, then Mrs Filmalter would certainly be expected to develop an obvious rash on 12 February 2014. This was not recorded as being observed by Dr Scholtz, and as I found above, was in fact not observed by Dr Scholtz.
• [302] Dr Botha did not observe any lesions in March 2014, which again was inconsistent with the finding of an allergic reaction. The skin biopsy of 23 June 2014 showed no evidence of any photosensitivity reaction on the biopsy.
• [303] A summary of the findings is contained at page 103, which in my view is an accurate reading of the record:

"Despite presentations and investigations at Mackay Base Hospital, St Vincent's Hospital and Green Slopes Hospital, there is no medical record of a skin rash and no blistering was observed or documented by medical staff at any time. This woman has been seen by a number of dermatologists and no objective lesions have been documented. The only abnormality noted were excoriations that were a result of the patient scratching her legs.

Despite the patient's claim of photosensitivity, there is no documentation of objective findings that support this. Following the claims and behaviour of the Claimant that she suffered from severe photosensitivity, extensive investigations including autoimmune serology, porphyrins, coeliac serology and skin biopsies have failed to reveal any abnormality."

• [304] Also on page 103-104 is Professor Katelaris' opinion concerning any link to cerebral vasculitis, where Professor Katelaris said:

"I note that in 2017 she has had an altogether different presentation that has now led to a diagnosis of cerebral vasculitis. There is no scientific explanation to link this latest diagnosis with the patient's claim of an adverse drug reaction to norfloxacin some three years earlier. Not withstanding that an objective finding of a drug reaction was never documented by any medical practitioner following the norfloxacin ingestion three years earlier, the immunological mechanisms leading to phototoxic or photosensitivity reactions do not involve a vasculitic process so it is impossible to determine how these two things may be linked, being so separated in time."

• [305] Dr Katelaris has provided detailed reasoning ruling out a diagnosis of a phototoxic or photoallergic reaction. In summary, in respect of a phototoxic reaction, Dr Katelaris has opined that a phototoxic drug reaction is more common and when it occurs, it occurs in individuals that are exposed to a combination of enough drug and light in an appropriate wavelength. The phototoxic drug reactions are the result of direct tissue and cellular injury and are usually dose-dependent, and it does not require prior sensitisation. Importantly, the phototoxic reaction occurs promptly after sunlight exposure and only occurs when there is enough drug in the patient. Importantly, the phototoxic drug manifests as an exaggerated sunburn on the sun-exposed areas. Importantly, on biopsy there is necrosis of the epidermal keratinocytes with infiltration of neutrophils and lymphocytes into the dermis. As norfloxacin has a very short half-life, any phototoxic reaction would need to have occurred in close proximity to the ingestion of the drug. That simply did not occur in Mrs Filmalter's case. Accordingly any diagnosis of phototoxic drug reaction can be excluded on that history alone, let alone the absence of the clear finding of the exaggerated sunburn and the absence of any positive results on biopsy.
• [306] In respect of photoallergic drug reactions, Professor Katelaris' acknowledges that a photoallergic drug reaction usually requires or may require minimal exposure to a photosensitising drug and prior sensitisation. Professor Katelaris explains that the reaction is immunologically mediated via a Type 4 or T-cell hypersensitivity reaction, and one can see cross-reactivity between similar drugs. Dr Katelaris explains that because of the immune response involving T-cells, it takes some time to develop. However, the photoallergic reaction resolves after discontinuation of the drug. That did not occur in the present case.
• [307] Dr Katelaris points out that photoallergy involves characteristic changes on biopsy, and again, that did not occur in the present case.
• [308] In my view, Professor Katelaris has provided detailed and cogent reasoning excluding any proper diagnosis of a photoallergic or phototoxic drug reaction.
• [309] In her supplementary report from 13 September 2024, Professor Katelaris has examined a series of photographs which are in evidence, from pages 3772-3856. These photographs were taken on various dates by Mrs Filmalter or her family and are meant to depict photographic evidence of a skin condition. Professor Katelaris' opinion upon the photographs at page 1221 is that the photographs show very non-specific skin blemishes that in no way resembled either a phototoxic or photoallergic eruption.

"She does not have that autoimmune cluster he's talking about. There is a rare multiple endocrine autoimmune cluster that includes type one diabetes, Graves' disease, thyroid disease, parathyroid disease, that are all mediated by autoantibodies. This woman does not have that syndrome, again, a very rare syndrome. Photoallergy is not part of that. And cerebral vasculitis does not fit into this at all. ... Cerebral vasculitis is certainly an immune condition. But again, the mechanisms are quite different and we're talking about an autoantibody phenomenon. So I cannot see, as an immunologist, I do not see this link at all."

• [322] I accept Professor Katelaris' logical reasoning in this regard and based upon her extensive experience as an immunologist.
• [323] Another plank in the plaintiff's case in respect of causation is the opinions of Dr White, neurologist, and in particular his opinion that the long-term successful treatment with rituximab somehow provide some support of a diagnosis of Mrs Filmalter's photosensitive condition. This appears to be a post hoc ergo propter hoc conclusion.
• [324] Professor Katelaris was direct in her response,[85] Professor Katelaris explained that that was not a cause and effect at all. Professor Katelaris explained:

"... we're talking about a primary angiitis of the central nervous system, is what has been reported to be the cause of this woman's stroke. This is (a) a very rare condition to start with, (b) as we understand the immunopathology, it is T-cell-directed, a delayed type hypersensitivity. That's why the recommended first-line treatment for this is high-dose steroids and cyclophosphamide, which really is a very toxic alkylating agent that knocks both T and B cells. Rituximab is used mainly for autoantibody-related diseases, where the antibody is seen to be the prime cause of pathology. And that's why rituximab is not used first-line by most units for this very rare primary angiitis of the CNS. It is used as another alternative in, truly, a condition where not many people know much about it. And, you know, rather than give a person nothing, it might be given when they failed other treatments. But it is not recommended first-line treatment for the very reason that there is no evidence that this is mediated by an antibody. We know it's, from the biopsies that are done, it's mediated by sensitised T-cells, which need a different therapeutic pathway."

• [325] Professor Katelaris pointed out that the usual course for patients with stroke to improve over time without treatment. Dr Katelaris reasoned that six years is a very long time for the prescription of rituximab, and that "we do not know that it is the rituximab that brought about improvement eventually."[86] Professor Katelaris, who sees patients with allergies and immunological disorders, commonly sees patients where there is a question of cerebral vasculitis, and so I accept that this opinion is well within her area of expertise. Professor Katelaris did, however, confirm that she would defer to a neurologist "when we come to the finger points to this".
• [326] The reasoning of Professor Katelaris, however, is particularly persuasive as follows:[87]

"I think the diagnosis in this woman - that her stroke was due to primary angiitis of the CNS is speculative at best. We do not have firm evidence because (a) lumbar puncture was not successful, (b) there has not been a brain biopsy. And really it's the only way you can be certain of that diagnosis. There are alternative diagnoses for this woman. In medicine, we say common things occur commonly. And a common or garden type stroke with someone who has many risk factors for that - high BMI, hypertension, smoking history, family history - she may well have had, you know, an embolic ischaemic or thrombotic stroke."

• [327] Professor Katelaris explained that a person presenting with redness in the face can have many conditions, including vascular instability. Professor Katelaris explained at T6-93 that that is a term for persons who have a very easy blush or flush reaction, and explained that the small capillaries in the skin vasodilate, or open up and make them look red, at levels when most people will not react. Professor Katelaris described that condition as idiopathic and tends to occur when persons get a little bit hot or become embarrassed. It is commonly found in persons with migraines or blood pressure instability.
• [328] The treating records of the Terrace Dermatology were admitted by consent. The records detail a series of consultations with the dermatologist Dr Godfrey Wagner and a referral letter written by the dermatologist Dr Rowland Noakes. Page 1352 has Dr Wagner's notes from the Wednesday, 13 August 2014 consultation which records "minimally demonstrable lesions, barely visible blotches on the left forearm."
• [329] Dr Wagner's notes of the consultation of 11 October 2014 contain minimal findings, said not to be in a phototoxic distribution and a series of other unusual symptoms.
• [330] On 29 August 2014, Dr Noakes records Mrs Filmalter making abusive phone calls to staff. Doctors Wagner and Noakes attempted to assist Mrs Filmalter with references to Greenslopes for admission and light studies from the photobiology unit at St Vincent's Hospital in Victoria. Despite many consultations and studies by two experienced dermatologists, no confident diagnosis could be made and so referrals were made.
• [331] In his referral to the photobiology unit at St Vincent's, Dr Noakes suggested the diagnosis was the genetic metabolic disorder variegate porphyria, however the porphyrin studies did not support that diagnosis. Dr Noakes therefore suggested that the alternative diagnosis may just be solar urticaria (or hives) or prolonged photosensitive reaction to fluoroquinolones. In his letter to Ms Filmalter on 26 June 2014, Dr Wagner suggested that Mrs Filmalter may qualify for the condition of persistent light reactor.
• [332] Exhibit 6 is the letter by Dr Wagner in which Dr Wagner cautioned Mrs Filmalter about being abusive towards himself or staff and as a result, Dr Wagner on-referred Mrs Filmalter to Dr Miller, dermatologist at Townsville. Dr Wagner's letter of 2 March 2016, page 1361-1362 is quite illuminating. Dr Wagner describes Mrs Filmalter as being a forthright personality with definite views and "having demonstrated an incredible determination when it has come to living like a vampire." Dr Wagner thought that Mrs Filmalter was amazingly persistent in living in darkened environments and had become increasingly angry with Dr Wagner and his staff, Dr Wagner commendably said "This is understandable with the lack of progress made and the relative stagnation, she's becoming more desperate, fuelled by anxiety."

"Despite this extreme symptomology, a very comprehensive and thorough investigation has not revealed any causes of photosensitivity despite having seen numerous doctors and having been admitted to hospital and even travelled interstate for assessment, no clinician involved in her management has ever seen any clinical evidence of a photosensitive eruption.

In an effort to give her a diagnosis, clinicians have relied on her history and come up with solar urticaria and persistent light reactor state. However, there is very little to support these diagnoses and certainly the symptoms that she describes would be extremely unusual for either of these conditions. Disparity between reported symptoms and objective changes in the skin is recorded in her notes on several occasions. Images provided by Mrs Filmalter do not clarify the issue.

I do not think persistent light reaction state is tenable, as she has never had a significant rash visualised. Solar urticaria can come and go, but she describes changes such as blistering and peeling of skin which do not fit with this diagnosis. The symptomology is extreme. I think the most likely diagnosis for this is one of either somatic delusion or some form of secondary gain. I recognise that she's seen a psychiatrist and no diagnosis of psychiatric disorder was made. I strongly suspect that they are under the impression that she did indeed suffer from a significant photosensitive condition. However, from my reading, there is no evidence that she ever had photosensitivity."

• [339] Professor Muir then descends into particularity to state his reasoning between pages 1235 and 1242. His reasoning is detailed and refers to the paucity of clinical findings, the absence of histological evidence and the characteristics of the drug norfloxacin with the half-life of three hours. Professor Muir opines because of the short half-life of norfloxacin and on the basis that since the reaction occurred some days after she was gardening, that "I feel it is not possible that a phototoxic reaction could occur so many days later."
• [340] As discussed above, there was a 14-day break between the ingestion of the norfloxacin on 9 February 2014 and the complaint of sensitivity-type symptoms on Sunday 23 February 2014. Given that 93 to 97% of the drug will be eliminated within 24 hours, the amount of norfloxacin in Mrs Filmalter's body 14 days after ingestion is minimal in the extreme. This logic supports the conclusion of Professor Muir.
• [341] Professor Muir refers to the biopsy of the left forearm performed on 24 June 2014, which showed no features of photosensitivity. The histology report, to Professor Muir's reading, suggesting an area of folliculitis or inflamed keratosis pilaris. Professor Muir concludes on the basis of detailed reasoning that Mrs Filmalter does not have a known significant photosensitivity disorder, but he could not exclude a transient reaction to norfloxacin. He could not explain the ongoing claims of extreme photosensitivity.
• [342] At page 1242, Professor Muir restates his reasoning, which I accept, that the delay of some days between the ingestion of the norfloxacin and the complaint of the symptoms, at the time of the complaint of the symptoms, the drug was largely, if not completely eliminated from her system so that it could not be a cause of the symptoms.
• [343] Professor Muir's supplementary report of 25 October 2024 responded to his colleague, Dr Davidson's report, as well as the reports of the neurologist Dr White. Professor Muir comments that Mrs Filmalter's complaints to Dr Davidson of her symptoms being worsened by fluorescent lighting more so than sunlight garners no support from any study, any literature, or any case known to dermatology and is therefore, in Professor Muir's opinion, quite inconsistent with any photosensitive diagnosis of any label.
• [344] In his report, Professor Muir states amongst extensive reasoning that:

"It should be noted that the claim of exquisite photosensitivity that Mrs Filmalter suffers has never resulted in any clinical or indeed histological evidence of a photosensitive eruption. From my reading of the extensive documentation, no clinician has ever seen an eruption that would be able to be classified as a photosensitive dermatosis. No biopsy supporting this diagnosis. Considering the duration and severity of her symptoms, this is inexplicable.... I have been working in dermatology since the late 1980s and I have seen many patients with photosensitive disorders. Without exception, all of them reported improvement in their symptoms should they shield themselves from the sun and stay indoors. In fact, on occasion, we have had to admit patients to hospital to keep them away from sunlight. This allows time for their skin to settle. The suggestion that artificial light sources, especially from everyday household objects such as fluorescent lights, computer screens, mobile phone screens, television and microwave ovens would be greater and more substantial triggers of associated photosensitive reaction than sunlight is, is unscientific, illogical and unfounded."

• [345] Professor Muir then commented upon the suggestion that the light from the lumbar puncture performed by Dr White caused any type of photosensitive reaction. Professor Muir concludes that in respect of the necessary rubbing of the skin for the procedure of a lumbar puncture, there is needling, cleaning and rubbing of the skin with antiseptic, injection of local anaesthetic, manipulation, stretching of the skin that will cause erythema and is by far the more likely explanation for the redness observed by Dr White than any photosensitivity induced by exposure to a theatre light.
• [346] Professor Muir added quite logically:

"It should be noted that if this minimal exposure to a light source resulted in a significant photosensitive dermatosis in 2020, there would logically have been multiple occasions in the years before and since where such exposures would have precipitated a diagnosable skin eruption."

• [347] On page 1257, Professor Muir explained that a differential diagnosis between persistent light reactivity or solar reactivity is incorrect, as the symptoms and conditions required for either diagnosis were never fulfilled.
• [348] In the cross-examination of Dr Davidson,[88] Dr Davidson expressed the view that she agreed with much of Professor Muir's opinion in his reports. I have no hesitation accepting Professor Muir's opinion as it is carefully and comprehensively reasoned and is logical and understandable. It was not clear whether at the conclusion of Dr Davidson's cross-examination there was much difference between her opinions and Professor Muir's, but to the extent that there was, I prefer Professor Muir's opinion over Dr Davidson's. Even if I had accepted Dr Davidson's opinion, the highest it rises is that the eruptions Mrs Filmalter experiences are not "pathognomic of photosensitivity".[89] Dr Davidson's opinion that the eruptions "could be consistent with a photosensitive area",[90] is evidence of a possible causal link, it is not evidence of a causal link established on the balance of probability.[91]

• [349] Numerous photographs were tendered in evidence, presumably to corroborate the evidence of Mrs Filmalter and each member of her family of having observed Mrs Filmalter with photosensitive or allergic signs as shown upon Mrs Filmalter's face and body. The photographs are contained in Exhibit 8 and Exhibit 1, item 145, pages 3777 to 3808 and Exhibit 1, item 146, pages 3809 to 3856.
• [350] On the eighth page of Exhibit 8 is a photograph of Mrs Filmalter's face, which includes the date, 6 October 2013, and at the bottom of the photograph the number 76 appears. According to Mrs Filmalter, that photograph was taken in approximately 2011. The photograph shows a light redness upon many parts of Mrs Filmalter's face. That photograph also appears in Exhibit 1, page 3796, however page 3796 shows a lesser degree of red tinge upon Mrs Filmalter's face. The different appearances of Mrs Filmalter's face on the two versions of the same photograph demonstrate that drawing any conclusions from the photographic evidence is unreliable.
• [351] Exhibit 8, page two is referred to by Mrs Filmalter in evidence,[92] as being her handwriting, refers to Exhibit 8, page one. According to Mrs Filmalter's handwriting, that picture was taken in 2013, however, the photograph looks remarkably like Exhibit 8, page one and Exhibit 1, page 3796 in that Mrs Filmalter appears to have the same clothing on, and the background is the same. I conclude it is more probable than not Mrs Filmalter is mistaken and that Exhibit 8, page one and Exhibit 8, page eight, and Exhibit 1, page 3796 are all photographs taken on the same day. All photographs show differing amounts of light redness upon Mrs Filmalter's face.
• [352] To add to the confusion is that photo at Exhibit 1, page 3839 which is said to be proven by metadata to be taken on 22 January 2015 at 3:18. This is precisely the photograph as Exhibit 8, page eight said to be taken in 2011, and Exhibit 1, page 3796, which bears the date 6 October 2013. Thus the same photo which may have been taken in 2011 or 6 October 2013 or 21 January 2015 shows different face colouring, none of what resembles anything untoward.
• [353] Exhibit 8, page four (marked as page six) is a note in Mrs Filmalter's handwriting nominating the third page of Exhibit 8, as a photograph of Mrs Filmalter taken in January 2014. This photograph also shows a light redness on parts of Mrs Filmalter's face. The photographs of Mrs Filmalter's face taken in 2011 or 6 October 2013 or 21 January 2015, differ from the photographs of Mrs Filmalter's face taken in January 2014 which also differ from the photographs of Mrs Filmalter's face contained in the balance of the photographs in Exhibit 1. Other than that observation, namely that the photographs of Mrs Filmalter over a period of time show her appearance has differed. I cannot draw any further inferences from the photographs.

(a) Multiple non-specific follicular based erythema not papular on the dorsal aspects of hands and forearms.

(b) Photographs of the patient brought in showed erythema over the malar regions, erythematous papules over the chin, and erythema and white papules over the forearm in the past.

"A broad range of differential diagnoses entered our minds when we saw Sue today. It is unlikely in the clinical context with the current investigation findings that she has porphyria. She may have had a phototoxic drug reaction to norfloxacin and be a persistent light reaction. I think she has elements of solar urticaria, or at least urticaria mixed with vasomotor instability, which is made worse by light and heat. It is notable that this is having a significant impact on her life and psychological support in regards to this would be encouraged. We have taken some biopsies of some areas on the forearm today. However, I do not expect these to be significant in terms of changing our management. ... An important side note is that Sue was dermatographic today. This was the only real positive clinical finding that we could find on examination in respect of the dermatographia."

• [373] It is important to record that the only evidence in this trial is that dermatographia was not a photosensitive condition. Dr Muir's is evidence at T6-64, line 20 and page 1236, is important evidence which is not contradicted by Dr Davidson and, therefore, quite rightly not challenged in cross-examination.
• [374] I conclude therefore that Mrs Filmalter has, at times, had dermatographia, a skin condition, which is not a photosensitive condition, and in respect of which there is no evidence to support a conclusion that it was in any way caused or contributed to by the ingestion of two tablets of norfloxacin in February 2014.
• [375] Annexed to defendant's written submissions is a 27-page schedule setting out inconsistencies in Mrs Filmalter's evidence about her symptoms and triggers. In respect of the first topic of various things that Mrs Filmalter has said about her symptoms and their triggers (pages 1 to 13), I accept, but for one matter, that the submissions are accurate. Some of the unusual reports include:

(a) Mrs Filmalter's gets lesions under her eyelids (Page 1397).

(b) That Mrs Filmalter gets blisters or nodules on the palms of her hands when she showers, remain for 15 to 20 minutes after a shower (Pages 1396 and 1788).

(c) That mobile phones, iPads, computers, artificial lights burn her skin (Page 3607).

(d) That light exposure gives her blackouts and she suffers a rash all over her body due to light exposure (Pages 3254 to 3255).

(e) That street lights aggravate her condition such that she could not walk outside at night (Page 1384).

(f) Mrs Filmalter developed photophobic symptoms even if her body is completely covered by clothes in daytime (Page 1384).

(g) That Mrs Filmalter suffers from burns on watching television from the artificial lighting (Page 9).

(h) That prolonged sunlight will cause Mrs Filmalter is skin to swell, turn red and peel (T1-51 06).

• [376] The only matter I consider to be inaccurate is the submission that it was Mrs Filmalter is evidence that light exposure makes her eyes turn yellow, with reference to T1-52, line 32, as I interpret Mrs Filmalter is evidence with reference to photograph at page 3830, light exposure makes the skin around her eyes turn yellow rather than her eyes turn yellow.
• [377] In any event, in viewing page 3830, the colour around Mrs Filmalter's eyes is not dissimilar to the colour around many parts of her face.
• [378] Special arrangements were made for Mrs Filmalter to provide her evidence. All of the fluorescent lights in court four in Rockhampton were turned off with the blinds opened for a limited amount of dull natural light to enter the courtroom. Mrs Filmalter considered that that courtroom was very conducive to her condition, but did complain that the passageways and other parts of the court still had fluorescent lights that she was required to walk through.[105]
• [379] Mrs Filmalter said[106] that her family does not keep mobile phones on at her house, but in public she cannot avoid them and she considered that she could not tolerate mobile phones if she would need them for long periods. The complaint appeared to be in respect of not the light from mobile phones, but the emissions from mobile phones which caused Mrs Filmalter to consider she suffered symptoms.
• [380] In a most unusual claim, Mrs Filmalter stated[107] that laptop computers caused her to suffer from symptoms, but that other types of computers did not. Mrs Filmalter claimed that natural light was the best, whereas the expert medical practitioners considered natural light is most likely to cause photosensitive issues as opposed to artificial light. Mrs Filmalter's complaint in respect of laptop computers was that "the screen burns me... there's something about the radiation - it's all beyond my ability of understanding, but I just can't. I just can't use all those things."[108]
• [381] As an example of defence counsel's submission that Mrs Filmalter was combative and prone to making speeches, [109] Mrs Filmalter was asked if she would be concerned if a laptop on the bar table with the screen facing away from her, was switched on. Mrs Filmalter attempted to answer that question by reference to what doctors have told her before she was asked again about her concerns and not what doctors have told her, to which Mrs Filmalter responded:

"I don't have concerns about all this stuff. All I do is worry about when I can feel it. What it actually physically affects me with. So I don't sit and, like, "Oh my God, there is light somewhere here?" or "Is this?" I do not do that. I just go, "Oh something is actually affecting me and this is what it is doing to me." and then I will have to try and find a way out of the situation that I am in."

• [382] Mrs Filmalter went on to explain that she identifies what is causing her to suffer from the symptoms, explaining[110] that "Because I just don't know because I have multiple issues with multiple tude [sic] of things that evidently, I have a sensitivity now due to the damage that I have incurred."
• [383] It is evident from this passage, and from Mrs Filmalter's evidence generally, that she forms a firm belief as to what is causing her claimed symptoms, for which there is no objective evidence and for which there is no realistic explanation. The fact that Mrs Filmalter firmly believes something to be true, such as light from a laptop or the microwave oven or mobile phone, causes her to suffer photophobic symptoms does not establish that that is true.
• [384] As is established by the annexure to the defendant's written submissions, there is much inconsistency in Mrs Filmalter is reporting of symptoms over the period of a decade, but perhaps the conundrum of Mrs Filmalter's position is contained in the notes of her self-report to Dr McIntosh on 1 April 2016[111] in which Mrs Filmalter explained she was photosensitive, that is she developed a redness of any skin that was exposed to any type of light. That may be accepted as a typical definition of photosensitivity, i.e. Sensitive to light. Yet conversely, Mrs Filmalter also complains to Dr McIntosh that she developed symptoms on her body even if her body is completely covered by clothes which is a complaint of the antithesis of photosensitivity i.e. She is sensitive regardless of whether she is exposed to light or not.

• [385] I have not overlooked the fact that members of the Filmalter family have provided unchallenged evidence of the observations of Mrs Filmalter suffering from a type of skin condition. Mr Neil Filmalter's evidence is that on 13 March 2014 when he collected Mrs Filmalter from work, Mrs Filmalter's face was red[112] and that some years later that if Mrs Filmalter had been in natural light, she should go red,[113] get welts or sometimes nodules on her skin.
• [386] Similarly, Harley Filmalter's evidence[114] was that during 2015 and 2016 she observed marks upon her mother's body which were welt-looking, raised slightly and at times red.
• [387] Crystal Van Vuuren observed symptoms on her mother's skin in 2016, describing them as "like, big welts under her skin" and "quite a bit of bruising around her eyes" and that during 2018 she observed her mother had more welts and bumps and lumps and rashes.[115]
• [388] I accept the evidence of Mr Neil Filmalter, Ms Harley Filmalter and Ms Crystal Van Vuuren that they had observed the changes to Mrs Filmalter's skin as they described. There was no attempt to relate the evidence of those three witnesses to the numerous photographs tendered to discern what, if any, significance those observations could mean in terms of any proper diagnosis. Neither did any expert provide any opinion as to a diagnosis or causation based upon the acceptance of the evidence of those three members of the Filmalter family. In his note of 1 December 2024 (page 1351), Dr Wagner described alleged "arm swelling's" as "more likely fat deposit some piloerection arms". (Otherwise known as goosebumps). In his letter of 2 March 2016, Dr Wagner wrote "goosebumps elevators on the arms that I have always been dubious of the significance..."[116]
• [389] I conclude, similar to the conclusion in respect of the numerous photographs that have been tendered, that the evidence could not exclude a type of photosensitivity as a diagnosis, but neither could that evidence support a finding of any particular medical condition.
• [390] It also seems to me, there is little doubt, that the Filmalter family have accepted Mrs Filmalter's complaints of symptoms as being the result of a genuine serious medical condition. An example of this may be seen in Mr Filmalter's evidence at T3-12 to T3-13 where he deposed to the Filmalter family guarding mobile phones, laptops, not using televisions nor microwaves in Mrs Filmalter's presence and such extreme measures, according to the medical experts, have no basis in science at all.

• [394] Professor Bruce James Brew AM is an extremely experienced neurologist. He is currently the Professor of Medicine and Neurology at the University of New South Wales and the University of Notre Dame. Professor Brew obtained his medical degree in 1978 and obtained his fellowship in neurology in July 1987. Professor Brew was called as a witness in the plaintiff's case.
• [395] Dr John Cameron is an extremely experienced consultant neurologist who has called in the defendant's case. Dr Cameron obtained his primary degree in medicine in 1969, obtained his fellowship in neurology in 1976 and obtained a PhD in neurology in 1979.
• [396] Although Professor Brew and Dr Cameron agreed on many matters, they disagreed on a significant issue in the trial, that is, whether Mrs Filmalter's stroke was in any way caused or contributed to by her ingestion of the norfloxacin, with Professor Brew supporting a connection and Dr Cameron providing an opinion opposing that conclusion.
• [397] As to the opposing thesis, that is, Mrs Filmalter's stroke was caused by vascular cerebral vasculitis as postulated by Professor Brew, and that Mrs Filmalter's stroke was an embolic stroke as postulated by Dr Cameron, Professor Brew agrees that the occurrence of stroke due to cerebral vasculitis is rare, whereas embolic strokes are common.
• [398] In his first report, Professor Brew stated at page 212:

"I consider it is conceivable that Norfloxacin was related in some way to her presumed cerebral vasculitis. I state this because Mrs Filmalter had developed phototoxic symptoms shortly after having been given norfloxacin ... The unusual feature here is the time gap between the exposure in 2014 and the development of the cerebral vasculitis. Nonetheless, in the intervening period, she had what appears to be a phototoxic reaction to the norfloxacin, which is known to be immune related ... It should be noted, as far as I can determine, there are no markers of vasculitis that were found to be positive. This does not exclude vasculitis. It just makes it unusual. The appearance of the MR scan of the brain is certainly consistent with vasculitis. The MRA, as previously noted, from 23 January 2017 shows diffuse abnormality in the posterior circulation vessels. However, this is somewhat unusual in that vasculitis is more patchy in appearance ... Thus, whilst this case is unusual, I consider that (by exclusion) it is reasonable to consider a link with norfloxacin despite the caveats already articulated."

• [399] It is apparent that Professor Brew's carefully reasoned but tentative opinion that there may be a link is based upon a critical assumption that Mrs Filmalter had a phototoxic reaction to norfloxacin. For the reasons I articulated above, I do not accept that Mrs Filmalter in fact suffered from a phototoxic reaction to the norfloxacin.
• [400] Another important plank in Professor Brew's reasoning is the diffuse abnormality in the posterior circulation vessels, as shown on the MRA from 23 January 2017. As Professor Brew has conceded, that it is somewhat unusual as the vasculitis is usually observed to be more patchy in appearance.
• [401] Dr Cameron, by virtue of his report and by virtue of a demonstration during his evidence of an interactive MRA scanning, explained in exquisite detail the results of the MRA showing how the appearance was not patchy, but rather points of damage to the cerebral arteries highly consistent with embolic fragments causing defined blockages and leading to a specified area of brain tissue infarction.
• [402] Professor Brew countered with an opinion that due to the unidirectional flow of the blood in the cerebral arteries and the positioning of the points where the blockages appeared, required a somewhat unusual or difficult train of flow of the arterial blood supply, which he considered was most unlikely and therefore against acceptance of the conclusion of embolisms causing the stroke. Professor Brew later conceded,[117] that the MRA images were "equally consistent with emboli or inflammation caused by cerebral vasculitis" and he would defer to a radiologist on the issue.[118] The radiologist's primary diagnosis is of embolic stroke (at page 2794).
• [403] Exhibits 15 to 27 contain marked up images of the MRA imaging, with Dr Cameron identifying numerous aspects of the MRA showing the positioning of the various arteries and partial blockages. Exhibit 1, page 1251, is an MRA which is clearly labelled. It is attached to Dr Cameron's report of 29 October 2024.
• [404] Both experts accept that the positioning of the partial blockages show that the supplying artery is the basilar artery, which rises in the brainstem to a T-type juncture with the right and left posterior cerebral arteries (PCA's) either side of the T juncture and the main arterial area of blood flow. The image also shows the right and left superior cerebral arteries (SCA's) branching from the posterior cerebral arteries a short distance from the T junction. The highly damaged right SCA appears much dimmer than the less damaged left SCA.

"...Multiple acute infarcts involving both anterior and posterior circulation territories are usually cardioembolic and rarely due to a diffuse intracranial process. Recipient sites of embolisms can themselves act as donor sites. This is particularly common where an embolus lodges at the top of the basilar artery. Besides causing local midbrain and thalamic ischaemia, such emboli can dissipate distally down the PCAs and cause associated medial temporal or, more common, occipital infarction. If specifically questioned, the latter patients will report occipital-lobe-related visual symptoms. If a patient with brainstem signs who reports occipital-lobe-type symptoms, the cause is vascular and likely to be embolic."

• [408] On page 1261-1262, in the Martin article and under the heading Superior Cerebellar (SCA) Infarcts, the author concludes:

"SCA territory infarcts are accompanied by infarcts in the neighbouring rostral basilar structures (midbrain, thalami, PCA territory) in 75% of cases. The dominant mechanisms are artery-to-artery embolism and cardioembolism."

• [409] I accept Dr Cameron's opinion, that is fortified by the article by Martin, that it is particularly common for emboli to lodge at the top of the basilar artery, and common for the emboli to fragment and common for embolic fragments to lodge in the PCA's and the SCA's, and that this commonly occurs despite the unidirectional flow of blood in cerebral arteries.
• [410] I consider it likely that, as explained in the Martin article, emboli can fragment and be carried by blood flow into the PCA's or SCA's and thus cause blockages leading to stroke.
• [411] Where in conflict, I prefer the opinions of Dr Cameron over those of Professor Brew, as Professor Brew's conclusion is acknowledged by him to be unusual and a rarity, perhaps a rarity upon a rarity and in turn based upon a false assumption that Mrs Filmalter has suffered from a phototoxic reaction to the norfloxacin. Mrs Filmalter's treating immunologist Dr Langguth, does not support a diagnosis of cerebral vasculitis.[120] Additionally Mrs Filmalter had brain stem signs and symptoms,[121] which are more commonly associated with embolic stroke.[122]
• [412] Although Professor Katelaris, as she put it, allowed the neurologist to do the finger pointing as to the cause of the stroke, I consider that Professor Katelaris' logic as to the likely cause of the stroke is the same as Dr Cameron's, namely that Mrs Filmalter had multiple risk factors causative of an embolic stroke and that an embolic stroke is statistically far more likely to be the cause. I accept Dr Cameron's explanation of the radiology, particularly the MRAs, as showing signs consistent with an embolic stroke. Indeed, as Professor Brew initially put it, the radiologic appearances in the MRA were unusual in terms of vasculitis. I conclude that Mrs Filmalter has suffered an embolic stroke as Mrs Filmalter has several risk factors for embolic stroke, it is by far the most likely diagnosis, combined with the radiology and as Professor Katelaris put it "common things happen commonly."

• [413] As set out above, I conclude that Mrs Filmalter has shown on the balance of probabilities that she has suffered from a minor allergic reaction to the ingestion of two tablets of norfloxacin on 9 February 2014, but she has not shown, on the balance of probabilities, that the ingestion of those two tablets of norfloxacin caused any type of photosensitive illness, nor her stroke in 2017.
• [414] The assessment of quantum, therefore, is restricted to the damages caused by the allergic reaction, which is documented in the records of the Mackay Base Hospital on 10 February 2014. As those records show, it was a fairly minor allergic reaction. As Dr Scholtz's note of the consultation of 12 February 2014 shows (at page 1328), the allergic reaction had settled prior to Wednesday, 12 February 2014.
• [415] It is further important to recall, as noted above, that 95 to 97% of the norfloxacin was removed within 24 hours of the consumption of each tablet such that by presentation to Dr Scholtz on 12 February 2014, there was only a minimal amount of norfloxacin contained within Mrs Filmalter's body, and by that stage the allergic reaction had resolved.
• [416] I am conscious that Mrs Filmalter also attended on Dr Scholtz on 17 and 19 February 2014, complaining of hives which had developed since taking the norfloxacin ten days earlier. However, at the time of the development of hives, there was such an extremely small amount of norfloxacin left within Mrs Filmalter's body that I conclude it cannot be the cause of any complaint of hives on 17 or 19 February 2014. I again record that Dr Schultz did not in fact see any hives on 17 or 19 February 2014.
• [417] Although Mrs Filmalter did not work on Monday 10 February 2014, she returned to work on Tuesday, 11 February 2014. There is no suggestion that Mrs Filmalter suffered a loss of income for 10 February 2014. The damages, therefore, that Mrs Filmalter has proved to be caused by the allergic reaction is limited to two days of relatively minor irritant of allergic reaction. The damages are somewhat nominal and, in my view, ought be quantified as follows:

s 60 Civil Liability Act 2003

• [418] I give judgement for the defendant against the plaintiff.

[35] Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, at 487.

[50] Dasreef Pty Ltd v Hawchar [2011] HCA 21; [2011] 243 CLR 588, per Hayden J at [93].

[55] Paragraph 58 of plaintiff's written submissions.

[56] Mules v Ferguson [2015] QCA 5 at [191]

[57] Mules v Ferguson [2015] QCA 5 at [191] and Dean v Pope [2023] HCATrans 88.

[58] Grinham v Tabro Meats Pty Ltd; WorkCover Authority v Murray [2012] VSC 491; Boxell v Peninsula Health [2019] VSC 830.

[59] Sparks v Hobson; Gray v Hobson [2018] NSWCA 29; Dean v Pope [2022] NSWCA 260; Polsen v Harrison [2024] NSWCA 224.

[60] Dean v Pope [2022] NSWCA 260.

[61] Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, at 487.

[62] Grinham v Tabro Meats Pty Ltd [2012] VSC 491.

[65] New South Wales v Fahy (2007) CLR 486, per Gummow and Hayne JJ at 505 [57].

[66] T8-16, lines 5-10 and T8-17, lines 13-19.

[68] Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243, at [6].

[85] T6-91, lines 19-47 to T6-92 line 1-2.

[91] Reeves v Thomas Borthwick & Sons (Australia) Pty Ltd [1995] QCA 339.