KALOKERINOS v BURNETT

Court of Appeal (NSW)|1995-11-01|Before: Spender AJ, Clarke JA, Kirby P, Powell JA

KIRBY P, CLARKE and POWELL JJA 1 November 1995, 30 January 1996

NEGLIGENCE - medical negligence failure to diagnose cancer in case of vaginal bleeding - challenge to fact-finding and credibility assessment-trial judge believed patient- held: No basis established for disturbance - Devries and Anor v Australian National Railways Commission (1993) 177 CLR 472 appld.

NEGLIGENCE - contributory negligence medical misdiagnosis - patient fails to seek alternative or further advice despite persistent bleeding - no impediment to getting second opinion - held: Contributory negligence of 20% established.

NEGLIGENCE - medical negligence - negligent omission to diagnose cancer - patient presents to medical practitioner in country town with history of vaginal bleeding - requests reference to specialist - reference given but request made for change of specialist - medical practitioner reassures patient who fails to secure proper diagnosis and medical treatment until too late to effect cure - subsequent radical treatment causes severe injury to patient - trial judge (Spender AJ) accepts version of plaintiff and rejects denial of medical practitioner - challenge to findings of fact - whether Court of Appeal is authorised to set judgment aside on the basis of inconsistencies, misapprehension of the evidence or otherwise - held: (Clarke JA; Kirby P and Powell JA concurring): Although a different conclusion would have been available in the facts no error was shown sufficient to authorise the Court of Appeal to set aside the trial judge's conclusions.

Devries and Anor v Australian National Railways Commission (1993) 177 CLR 472 applied.

NEGLIGENCE - contributory negligence - action against medical practitioner - failure promptly to diagnose cancer signalled by prolonged vaginal bleeding - negligence of medical practitioner established - whether contributory negligence on part of patient - trial judge (Spender AJ) rejects defence of contributory negligence - on appeal to the Court of Appeal - held: (Clarke JA; Kirby P and Powell JA concurring):

(1) Contributory negligence was established by proof that the condition of the patient deteriorated and bleeding continued every day, yet for longer than four months she did not seek further or other medical attention despite the fact that there was no real impediment to her doing so;

(2) Contributory negligence should be assessed at 20% and the damages reduced accordingly.

DAMAGES - medical negligence - undiagnosed condition of cancer - award of damages - appeal - held No basis for disturbance.

Judgment of Spender AJ, except as to costs, set aside and in lieu thereof direct entry of judgment for the respondent in the sum of $326,214.60 to take effect on 12 April 1995; and

The respondent is to pay half the appellant's costs of the appeal and is to have a certificate under the Suitors' Fund Act in respect of those costs.

Clarke JA On 22 March 1995 Spender AJ delivered judgment in proceedings in which Cecily Jane Burnett, the respondent, sued her then doctor Archivides Kalokerinos, the appellant, for negligence. His Honour found in favour of the respondent, awarding her $407,768.24. The appellant has filed a notice of appeal in which he challenged the findings on negligence, contributory negligence and damages. In the appeal itself he has maintained his challenge against these three areas of the judgment.

It is important at the outset to emphasise that his Honour's conclusion that the appellant was negligent was based on the determination of the single narrow issue which the parties agreed was determinative on the question of negligence.

The issue was posed in a statement of agreed issues which read as follows:

(1) Excluding submissions with respect to contributory negligence, the question of the defendant's liability to be determined by reference to the events which occurred on 14 October 1991; inter alia, had Dr Kalokerinos properly referred the plaintiff to a specialist on 14 October 1991 no damage would have been caused to the plaintiff.

(2) It is agreed between the parties that on the balance of probabilities:

(a) In October - December 1991 the plaintiff's cancer could have been treated by hysterectomy in such a way as would have meant that the plaintiff would not have suffered from the consequences of radiation therapy (from which she now suffers) such as radiation fistula with consequent bowel and urine diversion (hereinafter referred to as adverse radiation consequences).

(b) The plaintiff's adverse radiation consequences became inevitable in the absence of any treatment in February 1992.

This statement of issues is not expressed in terms which are entirely clear to me. However, the parties well understood the sole issue which was determinative on the issue of negligence and their submissions before Spender AJ were restricted to that issue. Similarly, in this Court the appellant has challenged his Honour's resolution of that sole issue and this Court is concerned only with the question whether Spender AJ erred in that resolution. The issue, simply stated, was whether the respondent's evidence as to what occurred on 14 October 1991 should be accepted. The practical effect of the agreement on issues meant that if her version of the events on that day were to be accepted then she was entitled to a finding of negligence. His Honour concluded that her version was to be accepted and consequently made the finding of negligence. The appellant contends that his Honour erred in making that finding and he has asked this Court to set it aside.

The consequence is that the sole question with which this Court is concerned on the issue of negligence is whether the appellant has demonstrated that the trial judge was in error in accepting the respondent's evidence. I have sought to emphasise at the outset the narrowness of the point with which both Spender AJ and this Court have been confronted. His Honour's decision in favour of the respondent involved no radical development of the principles of law concerning medical negligence. Indeed his Honour did not even consider those principles because the parties had agreed, as I have said above, that if the factual issue was found in the respondent's favour she was entitled to a finding of negligence. Likewise, this Court is not concerned to examine the principles of medical negligence but is confined, in accordance with well established principle, to a consideration of his Honour's resolution of the narrow issue of fact.

THE JUDGE'S ACCEPTANCE OF THE RESPONDENT'S EVIDENCE

The appellant submitted that the judgment at first instance should be set aside upon the ground that upon a properly reasoned and rational consideration of the totality of the evidence the respondent's version of the critical facts should have been rejected. Mr Higgs, counsel for the appellant, said there were two broad bases for attacking the finding of fact in favour of the respondent. They were:

(1) The reasons for judgment disclosed that the trial judge had been guided by extraneous or irrelevant matters, that he had failed to take account of some material considerations and that he had misunderstood some of the evidence. These errors were, according to the appellant, so significant as to require that this court set aside his Honour's conclusion on the question of fact;

(2) His Honour palpably misused his position of advantage derived from the fact that he saw and heard the witnesses.

Mr Higgs relied upon the well known statements of Dixon CJ and Kitto J in Paterson v Paterson [1953] 89 CLR 212, at 224-225 and Edwards v Bairstow, [1956] AC 14, but his submissions direct attention primarily to the facts of the case.

The respondent was born on 25 June 1958. Upon leaving school, when she turned 15, she led an itinerant life. In 1983 she commenced a relationship with a Mr Neil Walsh who was the father of her child, Stevie, who was born on 13 August 1987. The relationship with Mr Walsh continued until 1990 when they fell out and shortly after that occurred the respondent moved to Bingara. At the time she was pregnant with her son, Shane, who was born on 4 June 1991. She lived in a cottage in Bingara until September or October 1992. During her time at Bingara the respondent consulted the appellant's practice. The first consultation was on 8 October 1990 when she saw a locum tenens. Her first consultation with the appellant was 14 November 1990 and she saw him on a number of occasions thereafter leading up to 14 October 1991. After a fairly lengthy gap, she consulted the appellant again in September 1992.

Her case was that for a fairly lengthy period in 1991 she suffered from irregular vaginal bleeding and/or spotting and that the appellant failed to carry out proper investigatory procedures, or arrange for proper procedures to be carried out, to detect the cause of the bleeding. She claimed that, as a consequence of these failures, she came to treatment at a stage when a cancer from which she was suffering was so far advanced that the radical treatment necessarily carried out led to very severe consequences. These, she claimed, would have been avoided if proper treatment had been proffered by the appellant in September and October 1991. In particular she alleged in her statement of claim that the appellant was negligent in that:

".. having referred her to a specialist at her request, when she said she could not attend the appointment for social/family reasons failing to make alternative arrangements or suggest to her that alternative arrangements should be made for her to see the specialist" (Statement of Claim CL3e)

I repeat that at the trial the appellant's counsel accepted that if the trial judge accepted that that allegation had been made out there should be a finding for the respondent on the issue of negligence. It follows that there was no submission to the effect that even if those allegations were made out they were not sufficient to support a case in negligence.

The trial judge expressed the contending positions succinctly in terms which it is convenient to quote:

"The plaintiff claims she saw the defendant at his rooms on the morning of 14 October 1991; that she told him she was experiencing heavy vaginal bleeding; that he arranged for a consultation with a specialist in Tamworth; that she said it would be difficult for her to get to Tamworth; that she came back in the afternoon and told him that she was unable to get to Tamworth and asked for an appointment with a specialist at Inverell, a town nearer to Bingara; that he reassured her and as a result she did not seek medical treatment for her complaint until it was too late. The defendant denies this; he has no memory of seeing the plaintiff on 14 October 1991 and no memory of complaints made by her which led to the appointment being made with the specialist; he relies on his ordinary course of practice and says that he would never have acted in the way the plaintiff said he did and that to do so would not only be negligent, but 'morally indefensive'." (sic)

His Honour, as is clear from what I have earlier said, accepted the substance of the respondent's story and again it is worth recording his Honour's express statement on the issue:

"Overall, and despite real deficiencies in her evidence - including inconsistencies, contradictions and aspects which I do not accept - I formed a favourable opinion of her evidence on the critical issue: the events of 14 October 1991. She is an articulate woman of above average intelligence. I would judge that she was, before her illness, a resourceful person. She had led an unusual life, and one that would have needed a fair amount of resourcefulness and toughness. It was no life for a shrinking violet. She struck me as having a forceful personality and the force of her personality was evident both in the evidence before me and in the evidence recorded by video in Brisbane when it was thought that her days were numbered. She has a deep rooted hostility and contempt for the defendant which she never sought to hide. Plainly she believes him to be the cause of her misfortune."

Mr Higgs, submitted that this finding was flawed in a number of ways. In the first place the acceptance of the respondent's evidence as to the events which occurred on 14 October 1991 was inconsistent with primary findings of fact. This was the way in which counsel put his submission but I tend to the view that his fundamental challenge enjoyed a broader reach. The first inconsistency said to exist, and described as the critical one by Mr Higgs, was that on repeated occasions the respondent asserted that prior to the birth of Shane on no occasion did the appellant ever carry out a physical examination of the respondent. This evidence, which was undoubtedly given by the respondent, was at odds with a record, an ante-natal card, on which there were entries which could have been made by the appellant only following a physical examination. If those entries were correct then the strong assertions of the respondent must have been mistaken. Counsel recognised that the mere fact that the respondent was mistaken on this issue did not necessarily vitiate his Honour's acceptance of her evidence in regard to the happenings of 14 October but he asserted that careful consideration of the vehement and repeated denials that physical examinations took place would demonstrate that not only was the respondent's evidence on that point erroneous but that the totality of her evidence was fundamentally unreliable.

The submission is a bold one. Trial judges in carrying out their fact finding exercises do not automatically reject the totality of a witness's evidence because they are unable to accept some aspect of that evidence. They frequently accept part of the evidence of a witness while rejecting other parts. Any other approach

would neither be rational nor reasonable. The fact that a witness is shown to be mistaken on his or her recall on a particular matter may or may not lead a trial judge, who has regard to the totality of the evidence in the case, to reject the whole of the evidence of the witness. A similar approach is taken in jury trials in which juries are instructed daily that it is for them to determine what evidence they accept. They are also instructed that they may accept part of the evidence of a witness and reject another part. What is important is that the tribunal of fact - be it judge or jury - considers the evidence of the witnesses in the light of the totality of the evidence and having regard to the other evidence in the case and their own impressions of that witness determine whether the whole of his or her evidence should be accepted or rejected or whether part should be accepted and part rejected.

That was indeed the exercise which the trial judge carried out - with great care if I may respectfully say so - in this case.

His Honour gave express attention to the inconsistency in the respondent's evidence to which I am presently directing my attention. He expressly said that.-he did not accept the respondent's evidence regarding the failure of the appellant to carry out physical examinations while she was pregnant. Having adverted to that issue his Honour considered other aspects of her evidence which he found unsatisfactory in the context of an examination of a number of factors which either told against or were in favour of an acceptance of the respondent's evidence concerning the events of 14 October 1991. His Honour, in my opinion, carried out that fact finding exercise in a traditional and an acceptable manner. In these circumstances I am unable to accept the submission that the manner in which his Honour dealt with this inconsistency in the respondent's evidence was erroneous, although I do not disregard that inconsistency in a consideration of the wider picture which the appellant seeks to paint.

A second factor initially relied upon in this part of the appellant's submissions was said to arise from the respondent's deep seated hatred of the appellant. It was that hatred, according to the submission, which provided the only sensible explanation for her faulty recollection of the examinations carried out by the appellant prior to the birth of Shane. Once that hatred was seen to have led to her recollection on that aspect of the case becoming completely unreliable it almost necessarily affected the whole of her evidence. What was worse, according to the appellant, was that not only did his Honour fail to take that matter into account adversely against the respondent but he relied upon it as a positive factor in her favour. During the appeal there was discussion between the bench and bar concerning this submission when it was pointed out to Mr Higgs that his Honour was impressed, not by her hatred, but by her candour in openly conceding that hatred in circumstances where that admission would be unlikely to aid her case. It was, his Honour thought, refreshing that she was quite prepared to make this concession. Following this discussion Mr Higgs, while not abandoning his reliance upon this aspect of the respondent's evidence, did not press it as an inconsistency.

The third inconsistency was said to derive from an examination of the particulars which had been filed on the respondent's behalf prior to the trial. In those particulars she adverted to one visit to the appellant on 14 October whereas in her oral evidence she placed considerable emphasis upon a second visit which took place on that date. According to the respondent she returned to see the doctor after trying to make arrangements to enable her to go to Tamworth for an examination and told him that:

"Tt was impossible, I was too sick to take the kids down with me and I couldn't afford to stay overnight because the bus left virtually as I arrived there."

The omission or failure to particularise the second visit was a most significant matter. If his Honour had overlooked it then there may have been strong grounds for asserting that his Honour had failed to pay regard to a relevant consideration. But his Honour did not overlook it but thought that, having regard to the respondent's background, that omission was understandable. He said that the respondent may well have believed that what was important was that the appellant would not assist her and not that the failure to assist occurred on the second of two visits. The weight to be given to this factor was very much a matter for the trial judge in his consideration of the whole of the evidence. Where, as here, he has taken that matter into account in reaching his ultimate conclusion on the acceptance of the respondent's complaint it cannot, in my opinion, be said that he erred. It may well be that if I had been the trial judge I may have accorded the inconsistency more weight. But there are questions of degree involved and, as the cases to which our attention has been drawn demonstrate, the trial judge is in a highly advantaged position on those questions. It is true that his Honour's belief that there was a broad measure of consistency between the various complaints made by the respondent and her evidence did not diminish the significance of her failure to particularise a highly important consultation or meeting. But that omission on her part was capable of being explained. Standing alone it could not have defeated her claim. It fell for consideration as part of in the wider picture. In my opinion it has not been shown that his Honour failed to accord it due weight or that his Honour, having regard to that factor as well as the others I have mentioned, should have reached a different conclusion on the critical matter of fad.

The appellant's next major submission was that his Honour erroneously excluded the possibility of honest mistake. That his Honour did exclude honest mistake seems to be correct for he thought there were only two alternatives - she was telling the truth or she had fabricated the story. His Honour thought there was no comfortable half-way house between these two extremes. The reason he came to this conclusion was because 'the plaintiff's evidence and the way in which she gave it are too striking and detailed in circumstances for a mistaken recollection to be a possibility'.

His Honour then went on to consider whether the respondent was lying and paid regard to a number of factors which, according to the appellant, were either irrelevant to the central issue or, at the very least, did not support the respondent on that issue. In his written submissions, Mr Higgs, dealt with these points in some detail but in my opinion, apart from one troubling aspect, the submissions do not propound an error such that this Court should set aside the finding on credibility and reliability.

The troubling aspect concerns the respondent's failure to seek attention in respect of her vaginal bleeding for a long time after 14 October. She knew that vaginal bleeding could be an indicator of a serious problem, perhaps cancer. His Honour seemed to think that she may not have sought other medical treatment for this condition because of embarrassment. His Honour also thought it might possibly be attributable to her poor general state of emotional and physical health. I accept there is a good deal of force in these criticisms of the judgment. It is not easy, as his Honour recognised, to explain her failure to seek other medical help when, according to her, the appellant had let her down badly on 14 October. If she had been unaware of the potential risks involved in not

investigating or attending to vaginal bleeding then the matter would be relatively unimportant; But the fact is that she was aware that there were great potential risks and yet she did nothing. This presents to me as inconsistent with the fundamental thrust of her case. Nonetheless his Honour was alive to the problem created by her failure to seek medical attention over a lengthy period and took it into account. While I feel some disquiet about the matter that fact does not enable me to reverse his Honour's conclusions, based as they were on the totality of evidence and the demeanour of the witnesses.

The appellant also contended that his Honour placed too much reliance on the broad consistency in the respondent's histories concerning the failures by the appellant. Mr Higgs submitted that while it is appropriate for tribunals of fact to have regard to broad perspectives of consistency they could not relieve a trial judge from the obligation of analysing carefully the detailed evidence in the case. In particular he directed attention to the trial judge's reliance upon what seemed to him to be a consistent theme between the complaints to Dr Crandon and her evidence and pointed out that even in that instance his Honour needed to explain away detailed differences between the two.

Mr Higgs also criticised the trial judge's conclusion that the appellant had clearly changed his instructions in an important respect. That conclusion was based on a suggestion put to the respondent during cross-examination but never made the subject of actual evidence by the appellant himself. What counsel for the appellant suggested to the respondent was that at a consultation on 12 September 1991 the appellant said to the respondent "Look we should watch this and if it continues come back straight away". The respondent denied the accuracy of the suggestion and the appellant did not claim in his evidence to have said anything like that in September. It does not seem to me that the trial judge made very much of this apparent change of instructions but even if he had I do not think that he is subject to criticism on that score. Mr Higgs made a number of attempts to explain away the lack of evidence on the point but at the end of the day there was still an inference available, in my opinion, to the effect that the appellant had not come up to his proof.

There were a number of criticisms of the evidence concerning pap smears. Subject to one matter I do not think they require discussion in this judgment. There was, however, evidence concerning consultations with the appellant which took place after the diagnosis of the respondent's condition (by another doctor). She said that at that time the appellant on two occasions offered to conduct a pap smear to which she replied that it was like 'shutting the gate after the horse had bolted'. His Honour adverted to this evidence and thought it was odd that the appellant should offer on two occasions to carry out a pap smear when he knew that she had already had one which had been positive. His Honour continued:

"Such an offer seems medically pointless and indicates, I think, a troubled state of mind on the part of the defendant."

A number of criticisms were directed at this conclusion but it seems to me that it was open to his Honour to infer that the appellant recognised that there may have been shortcomings in his own treatment of her. Nonetheless, like his Honour, I do not think too much could be made of that fact. The offer seems to have had little point and if it does tend to indicate anything it is that to which I have referred. In the circumstances I am far from persuaded that his Honour was erroneous in the way he dealt with this evidence.

Finally I would like to return to a matter to which I have adverted and which was the subject of the final submissions on which I might describe as the 'credit issue'. The respondent frankly conceded that she detested the respondent and blamed him for her problems. This was a probable explanation for her incorrect testimony concerning the existence of physical examinations by the appellant prior to the birth of Shane. It was submitted that once it was recognised that her hatred had rendered her evidence on this issue unreliable it was illogical to confine her lack of reliability in that way. How, it was asked, could it be that her hatred would distort her evidence in some respects but not in others. This submission is directly relevant to the attack on his Honour's statement that the respondent was either telling the truth or deliberately lying.

For my part I do not think that his Honour was correct to exclude the possibility of a faulty recollection on the part of the respondent, possibly resulting from her detestation of the appellant. Honest witnesses may well give evidence which is unreliable in the sense that it does not truly record the past events under consideration. Indeed his Honour's acceptance of the honesty of the respondent did not deter him from rejecting her evidence concerning ante-natal examinations by the appellant. Furthermore, his Honour explained that the respondent's unreliability on this issue was likely to have resulted from her highly emotional state, her suffering and her deep 'animus' for the appellant. This approach cannot, in my opinion, be faulted. If these factors rendered her evidence on the ante-natal examination (and other matters discussed by his Honour) unreliable it is difficult to understand why it may not also have rendered her evidence concerning the events of 14 October unreliable.

His Honour seeks to explain his rejection of honest mistake concerning the latter evidence on the ground that it was too striking and detailed to be mistaken. I do not think that either the striking nature or detail of the evidence necessarily means that it cannot result from a recollection affected by past events including significant trauma. Where, as a result of a process of rationalisation, a person's honest understanding of what occurred in the past departs substantially from the true facts there is no reason to suggest that the coloured, but honest, understanding may not be both detailed and striking.

In these circumstances I must accept that there is considerable force in the appellant's submissions that his Honour's ultimate finding of fact was flawed. While most of the other submissions made by the appellant would, no doubt, have carried persuasive force before a trial judge, they would not, taken alone, justify this Court's interference in the verdict. When, however, his Honour has mistakenly excluded the possibility of faulty recollection the position becomes more complicated. Not only are there powerful arguments in support of the conclusion that the respondent failed to discharge her onus on the probabilities but his Honour's ultimate conclusion was affected by an approach which was flawed in a significant way. In these circumstances there is much to be said for the view that the reasons given by the trial judge were not satisfactory or alternatively that he had failed to take proper advantage of having seen and heard the witnesses (Paterson, at 224).

Notwithstanding, recent decisions of the High Court make it clear that a very high onus is cast upon an appellant who seeks to disturb a finding of fact by a trial judge based, expressly or impliedly, in part or in whole on the credibility of a witness. In the most recent of the cases, Devries v Australian National Railways Commission, (1993) 177 CLR 472, the majority said, at 479:

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly

The evidence of the respondent was not 'glaringly improbable'. Nor was it 'inconsistent with facts incontrovertibly established by the evidence'. Furthermore, the trial judge concluded that the combined effect of the evidence of the witnesses, Mr and Mrs Cotter, gave very strong support to the respondent's case. That conclusion was originally the subject of challenge but that particular ground of appeal was not pressed on the hearing. In the result there is an unchallenged finding that there is strong corroborative evidence supporting the respondent's case. Where it is clear that the trial judge has given very careful consideration to the evidence of the respondent, that he has rejected certain portions of that evidence, that he has accepted the substance of her evidence on the critical issue and that in doing so he expressly relied, in part at least, on the impression which he formed of her evidence given on this issue in the witness box it seems to me that the appellant has failed to discharge the very heavy onus of demonstrating that the trial judge failed or palpably misused his advantage. I would accordingly dismiss these grounds of appeal.

CONTRIBUTORY NEGLIGENCE His Honour found that the respondent knew that the bleeding she was suffering from could be a sign of cancer and he accepted, as he was bound to, that she did nothing about the problem after 14 October 1991 until it was too late. According to his Honour she did nothing for a period of roughly four months. In fact she did not seek treatment until June 1992 but his Honour disregarded the latter four months on the ground that even if she had sought treatment in that period she would not, on the probabilities, have avoided the disastrous consequences of the radio therapy. His Honour's ultimate conclusion was expressed concisely in these words:

"She had not been warned that there was a potential of a cancer. I do not think it matters that she may have understood or believed that abnormal bleeding could be a sign of cancer. It could be a sign of other things as well - as emerged in the defendant's evidence. In my view, the plaintiff is not fixed with a sufficient appreciation of the dangerous nature of her condition so as to put her, as a reasonable person, on notice that action should be taken and that she needed, without delay, to have her condition properly investigated, at an appropriate level of medical expertise."

I have considerable difficulty with these findings. His Honour has in this passage somewhat diluted a finding which he had earlier made - that the respondent knew that the bleeding SHE was suffering from could be a sign of cancer (my underlining).

In the light of that finding I would reach a different conclusion to his Honour. In my opinion a reasonable person, placed in the position of the respondent and with her knowledge that the bleeding could be caused by a developing cancer, would not have accepted the appellant's reassurances but would have sought other assistance.

The explanation which she proffered in evidence for not seeing another doctor was that she had been told, or understood, that the bleeding might have resulted from the fact that she had a very large baby. She also understood that the bleeding would settle down. It is not entirely clear when she was given this information or indeed whether she inferred that the birth of a very large baby was a possible cause of the bleeding from things she had been told either between June and October 1991 or on 14 October itself. But that was her only explanation for failing to seek further medical investigations when, on her own case, she was very concerned about the problem.

Two other important factors, with which his Honour did not deal, emerged from the evidence. First, her condition did not improve after 14 October but in fact deteriorated. She said her bleeding continued - it occurred every day - but sometimes it was light and sometimes it was heavy. She became ill and at times she was very sick indeed. It is not, therefore, a case in which there was any amelioration of her condition after 14 October which would explain her failure to seek other medical attention.

The second factor is that, although there was no other doctor in Bingara, there were, to her knowledge, doctors in Inverell, including specialists. In the light of her evidence that she was able to get to Inverell without much difficulty it is clear that there was no real impediment to her seeking other assistance.

His Honour seemed to think that the respondent was not fixed with a sufficient appreciation of the dangerous nature of her condition. The precise meaning of this finding is not clear to me but in the light of his earlier unambiguous conclusion that the respondent knew that her bleeding could be a sign of cancer I do not think this latter finding can be supported.

In my opinion her failure to take any steps to seek medical attention for a condition which she knew was potentially very dangerous indeed for a period of 4 months, particularly when she was able to get to Inverell and she continued to suffer from serious bleeding and became ill, constituted a failure to take reasonable care for her own safety.

Putting it another way, my conclusion is that a reasonably prudent person placed in the position of the appellant would undoubtedly have taken steps to try and discover the cause of the bleeding if only to exclude the possibility of the existence of cancer.

Accordingly, I am of opinion that his Honour erred in his finding of contributory negligence and that finding should be set aside. The question then arises as to the percentage which should be deducted from the verdict on account of that contributory negligence.

The appellant accepted that if the facts were as found by his Honour he had been guilty of negligence and his conduct was morally indefensible (the word used in his Honour's judgment was 'indefensive'). The conduct which he admitted was negligent was the failure to refer the respondent to a specialist at Inverell when he was aware that she could not make arrangements to travel to Tamworth. Balancing that matter against the failure of the respondent to which Ihave just referred, in the context of causation and culpability, I consider that an appropriate percentage is 20 per cent. The majority of the damages should be borne by the appellant for the reason that he, as her treating doctor, should have been alive to the serious risk and not let the matter rest when she said she could not attend the appointment which he had arranged.

The appellant challenged the award of general damages of $180,000 and the award of $100 per week in respect of the impairment of future earning capacity. His written submissions were terse. They said no more than that the evidence did not support such high verdicts. The oral submissions were even shorter. The appellant suffered dreadfully from 1992 until the date of trial and has been left in a greatly disabled condition. His Honour concluded:

"Her physical and mental suffering has been great. For some time she thought she was going to die. The present prognosis is that she will see out the ordinary life expectancy of a woman of her age. Had the plaintiff been diagnosed in time, she would have had to undergo surgery. That surgery would be painful and distressing. But the pain and the distress of the surgery that would have avoided the calamitous consequences of the cancer is of a different order to the pain and distress she has suffered as a result of the absence of preventive surgery."

Her life is ruined and I content myself with saying that there is no possible basis upon which this court could interfere in the damages awards.

(2) Judgment of Spender AJ, except as to costs, set aside and in lieu thereof direct entry of judgment for the respondent in the sum of $326,214.60 to take effect on 12 April 1995;

(3) The respondent is to pay half the appellant's costs of the appeal and is to have a certificate under the Suitors Fund Act in respect of those costs.

Judgment of Spender AJ, except as to costs, set aside and in lieu thereof direct entry of judgment for the respondent in the sum of $326,214.60 to take effect on 12 April 1995; and

The respondent is to pay half the appellant's costs of the appeal and is to have a certificate under the Suitors' Fund Act in respect of those costs.

Counsel for the Appellant: DJ Higgs Solicitors for the Appellant: Blake Dawson Waldron Counsel for the Respondent: JL Walmsley

At a glance

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Judgment (78 paragraphs)

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Cases Cited (2)

Cited By (2)