Mules v Ferguson [2015] QCA 5

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - LIABILITY IN TORT - GENERAL PRINCIPLES - where the appellant was diagnosed on 26 September 2008 with cryptococcal meningitis, sustaining devastating personal injuries, including the loss of her sight and hearing - where the appellant brought an action in negligence against her general practitioner claiming the doctor did not undertake a proper examination or make proper enquiries as to the appellant's reported symptoms so as to exclude this disease - where the appellant contended that had the doctor acted competently, the respondent would have referred the appellant for tests and treatment so that the disease was diagnosed and treated before she suffered her grievous injuries - where, after an 11 day trial, the primary judge assessed the appellant's damages at over $6.7 million but dismissed her claim - where the central focus on appeal was whether the appellant ought to have been referred for specialist assessment by the respondent at the time of her consultations on 18 or 19 of September, and whether such a referral would have led to a diagnosis and commencement of treatment before the onset of the appellant's catastrophic injuries - whether there was evidence the appellant had an observable restricted range of movement of the neck by 18 September 2008 - whether testing movement in all directions during a physical examination was likely to have revealed difficulty in movement such as to warrant further investigation by means of specialist referral - whether the appeal should be allowed

TORTS - NEGLIGENCE - STATUTES, REGULATIONS, ETC - APPLICABILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE - GENERALLY - where s 22 of the Civil Liability Act 2003 (Qld) provides a defence to a breach of duty if the medical practitioner establishes he or she acted in a way which was widely accepted by peer professional opinion by a significant number of professionals in that field - where the trial judge found that the respondent's conduct at the consultations on 18 and 19 September 2008 met this standard - where the trial judge's finding was based on an acceptance of the opinions of two general practitioners that the respondent's management of the appellant's case was consistent with a reasonable standard of general practice - where the opinions of the two general practitioners were based on facts consistent with the respondent's version of events - where the facts as found by the trial judge were not entirely consistent with the respondent's version of events - whether the respondent had discharged her onus under the Act

Civil Liability Act 2003 (Qld), s 22

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited

Hunter and New England Local Health District v McKenna (2014) 89 ALJR 39; [2014] HCA 44, cited

McKenna v Hunter and New England Local Health District (2013) Aust Torts Reports 82-158; [2013] NSWCA 476, cited

Mules v Ferguson [2014] QSC 51, related

S Doyle QC, with R Lynch and A Katsikalis, for the appellant

[1] MARGARET McMURDO P: The appellant, Nancy Leanne (Lee) Mules, consulted her general practitioner, the respondent, Dr Kaylene Joy Ferguson, about neck pain on 12, 18, 19 and 25 September 2008. Following the final consultation, she was admitted to the Cairns Private Hospital on a referral from Dr Ferguson. The next day she was diagnosed with cryptococcal meningitis, a disease which left her blind, deaf and with other grievous disabilities. She brought an action in negligence against Dr Ferguson claiming that the doctor did not undertake a proper examination or make proper enquiries as to Ms Mules' reported symptoms so as to exclude cryptococcal meningitis. She contended that had the doctor acted competently, she would have referred Ms Mules for tests and treatment so that the disease was diagnosed and treated before she suffered her grievous injuries.

[2] After an 11 day trial, the primary judge assessed Ms Mules' damages at over $6.7 million but dismissed her claim. Although his Honour found Dr Ferguson failed to act with reasonable care and skill in not physically examining Ms Mules' neck and enquiring about the progress of her previously recorded symptoms of headache and facial flushing, the judge concluded that this breach did not cause her injuries. Such an examination and enquiries would not have detected anything to prompt Dr Ferguson, exercising reasonable care, to respond differently.[1] His Honour also found that Dr Ferguson's conduct was lawful because it came within the defence provision contained in s 22 Civil Liability Act 2003 (Qld). In Ms Mules' favour, the judge found that, had Dr Ferguson referred Ms Mules to a neurologist or specialist physician on 18 and 19 September, Ms Mules would have arranged and attended a specialist appointment by or on Monday, 22 September. With proper care she would have been diagnosed and treated by 23 September[2] and her grievous injuries would probably have been prevented.[3]

[3] In this appeal, Ms Mules contended the judge erred first, in finding that Dr Ferguson's breach of care was not causative of her injuries and, second, in finding that the doctor had a defence under s 22.

[4] Dr Ferguson supports the findings challenged by Ms Mules in this appeal. Further, in a notice of contention Dr Ferguson argued first, that the judge erred in finding any breach of duty on her part and second, that, had Dr Ferguson referred Ms Mules to a specialist on 18 or 19 September, it was unlikely that cryptococcal meningitis would have been diagnosed and treated so that Ms Mules would have suffered her grievous injuries in any case.

[5] I agree with Boddice J's reasons for rejecting Dr Ferguson's arguments, allowing this appeal, setting aside the judgment below and instead giving judgment for Ms Mules. I add the following observations relevant to the first contention in this appeal.

[6] It is true that most of the symptoms Ms Mules reported to Dr Ferguson on 12, 18 and 19 September were consistent with cervical spondylosis; that Ms Mules had a history of such injury; and that the CT scan of her neck on 18 September disclosed such an injury capable of causing most of the symptoms she described. Her reported symptom of facial flushing, however, is not associated with cervical spondylosis[4] and her reported symptoms of headache and neck stiffness were also possible symptoms of cryptococcal meningitis.[5]

[7] General practitioner Dr Kable's opinion, noted by his Honour, that neck stiffness is a late symptom in the course of meningitis[6] was not supported by the evidence of either specialist physician in internal medicine and infectious diseases and pathologist, Dr Michael Whitby,[7] or consultant infectious diseases physician, Associate Professor Damon Eisen.[8]

[8] It is also true that cryptococcal meningitis is a rare, insidious infection, although significantly less rare in tropical Australia where Ms Mules lived and Dr Ferguson practised. Its symptoms may not arise early in the course of the infection so that often it is diagnosed late.[9] The symptom of neck stiffness in cryptococcal meningitis is present when a neck examination reveals the patient is unable to flex the neck forward so the chin touches the chest.[10] Delay in diagnosis and treatment, as this case sadly demonstrates, can have dreadful effects on morbidity and mortality, so that cryptococcal meningitis is a condition which is emphasised in clinical teaching for general practitioners[11] and should be excluded by specialist referral when diagnosing and treating patients suffering from possible symptoms.[12]

[9] The judge found that on 18 and 19 September Dr Ferguson breached her duty of care by not physically examining Ms Mules' neck and enquiring further about her previously reported symptoms of headache and facial flushing. There was no real doubt that Ms Mules' symptoms worsened between her first consultation with Dr Ferguson about neck pain on 12 September and the critical consultations on 18 and 19 September. This conclusion was supported by Ms Mules' visits to both the chiropractor, Mr Collis, and Dr Ferguson; Ms Mules inability to remain at work on 17 September; Mr Collis' provision of a medical certificate from 17 to 21 September; Dr Ferguson's provision of a medical certificate from 19 to 26 September; and the fact that Ms Mules' mother cancelled a flight and holiday plans to move in with and care for her forty-three year old daughter on 19 September.[13]

[10] Much emphasis was placed in this appeal on whether the primary judge's observation that no-one gave evidence of observing Ms Mules holding her neck stiffly or without movement[14] was inconsistent with Dr Ferguson's notes of and evidence about Ms Mules' consultation on 18 September. Earlier in his reasons, his Honour correctly referred to the evidence that Ms Mules told Dr Ferguson that her neck remained painful and Dr Ferguson observed that Ms Mules had a reduced range of movement.[15] His Honour found that his conclusion that there was no evidence of Ms Mules holding her neck stiffly or without movement was supported by the evidence of Mr Collis; his manipulation of Ms Mules' neck on 17 September; and her treatment by physiotherapist, Mr Elsmore, on 23 September.[16] This led his Honour to reason that, had Dr Ferguson physically examined Ms Mules on 18 or 19 September, the doctor would not have detected neck stiffness suggestive of meningial irritation and would reasonably have continued to conclude that Ms Mules' symptoms had a musculo-skeletal cause.[17]

[11] Dr Ferguson contended in this appeal that the judge clearly intended to state that the evidence of Mr Collis and Mr Elsmore, to which his Honour referred, supported the conclusion that there was no evidence of Ms Mules holding her neck stiffly in a way symptomatic of cryptococcal meningitis and that this conclusion was correct. That reasoning has some initial attraction. I accept the judge probably did intend to state that there was no evidence of Ms Mules holding her neck stiffly in a way symptomatic of cryptococcal meningitis. But in my respectful view that conclusion was not supported by a close examination of the relevant evidence.

[12] Mr Collis gave evidence that he had no independent recollection of his treatment of Ms Mules and his recollection depended on "trying to read and decipher [his] handwriting".[18] He first treated her on 5 September. He described performing "pseudohaul" where he "grabbed the back of her head, put it forward. In other words, we're putting some traction on the cervical spine and the cord and that caused pain to T1."[19] The last occasion he treated her was on 17 September when her neck was still sore and she had a headache.[20] He gave no oral evidence and nor was there evidence in his records[21] as to the nature of any treatment on 17 September. There was certainly no evidence that, on 17 September or indeed on any occasion, he conducted the chin on chest neck examination likely to disclose the symptom of neck stiffness often present in sufferers of cryptococcal meningitis.

[13] The evidence of physiotherapist, Mr Elsmore, also warrants careful attention. He treated Ms Mules on 23 September. He recalled that she was distressed[22] but without the benefit of his notes had no particular recollection of the consultation.[23] She gave him a history of increasing pain over the past two weeks which was better when she lay flat on her back.[24] She was "protecting of movement" and "just wasn't moving her neck very much at all".[25] Whilst she was supine he would have turned her head 90 degrees to each side and held it there for 30 seconds. He relevantly added,

"We tried traction with passive flexion, so that's when the patient lies on her back and we provide a traction force to the neck ...

So traction - again, the patient's lying in supine. The base of their occiput sits on your forearm, your fingers under their chin, you roll your forearm back this way and you apply traction force when they're just lying there. The counter force is just their body weight, and just apply a gentle force to it. You do a test of about five seconds and then you let it go, make sure there's no massive increase in symptoms which would indicate a pinched nerve. Let it go and then repeat again. You'd hold it for 30 seconds at a time and probably do three lots of that and see how you go."[26]

[14] Mr Elsmore thought she seemed to respond reasonably well from what he remembered.[27] He agreed that his note recorded "traction and passive flexion". He explained "passive flexion is just when you - when you roll your forearm back like this with your fingers under [the] chin then the head will fall into passive flexion".[28] It is clear that his description of the "traction and passive flexion" which he applied was not the chin on chest neck examination likely to disclose the type of neck stiffness which is a common symptom of cryptococcal meningitis. He recommended and supplied Ms Mules with a cervical collar.

[15] Contrary to his Honour's view,[29] the evidence of the chiropractic treatment on either 5 or 17 September and the physiotherapy treatment on 23 September was not of a kind which would have detected neck stiffness suggestive of meningial irritation. It did not establish that a chin on chest neck examination on 18 or 19 September would have disclosed no neck stiffness symptomatic of cryptococcal meningitis.

[16] Dr Ferguson placed considerable weight in this appeal on his Honour's acceptance of the evidence of Dr Whitby as to the effect of the physiotherapist's evidence.[30] In questioning Dr Whitby, Dr Ferguson's counsel summarised the physiotherapist's evidence as to his treatment of Ms Mules on 23 September and asked whether a neck flexion test for meningism would have been informative on or about 23 September. Dr Whitby responded:

"The cause of neck stiffness, meningism, in infections of the coverings around the brain is that the coverings around the brain become inflamed, and therefore it's painful to move the neck and therefore patients resist movement, because it hurts. And so I would think if the physiotherapist felt there was reasonable movement, it's not consistent with significant inflammation of the coverings around the brain, and it would suggest that that sign wasn't there."[31]

[17] Ms Mules' counsel also pursued the issue in cross-examination. Dr Whitby stated:

"In terms of whether stiffness was present, the stiffness in inflammation of the coverings around the brain from infection is not a passive thing. It's an active thing. And so that pain and resistance to movement is going to be there no matter how you test it. If you ask the patient to actively put their chin on their chest, they can't do that, and that's the common sign that's used. You can also ask the patient to straighten their leg, and that will cause pain, not necessarily in the neck, but sometimes in the neck, and cause them to arch their neck forward. Alternatively, you can just try and actively move the neck forward. They can't do that either. It's not a voluntarily (sic) movement in meningitis. It's a passive thing. So if the patient could move her neck forward actively or passively, then that's not consistent with inflammation of the coverings around the brain and the neck."[32]

[18] When the judge asked Dr Whitby what he meant when he said Ms Mules could move her head passively, Dr Whitby responded:

"Passive movement means that the examining person is actively trying to move it. Active movement, ask the patient to do it. If the patient can't do it, you try and force it by doing it yourself. That's therefore passive movement."[33]

[19] The transcript of the physiotherapist's evidence was not read to Dr Whitby and his answers suggested he did not appreciate its real effect. The physiotherapist's evidence was not that Ms Mules had reasonable neck movement without pain. Indeed he stated that she was "protecting of movement" and "just wasn't moving her neck very much at all."[34] And nor did the physiotherapist give evidence of Ms Mules' head being moved forward chin to chest, either actively by her or passively by him. Rather, the physiotherapist applied gentle force by pulling Ms Mules' neck laterally, or by turning it from side to side while she lay on her back. He did not perform the forward flexion chin on chest test associated with the detection of symptomatic neck pain in cases of cryptococcal meningitis. Further, the physiotherapist's recommendation and supply of a cervical collar was inconsistent with Ms Mules having a sound range of forward flexion in her neck.

[20] His Honour also referred to Dr Cameron's opinion as to the effect of the physiotherapist's evidence.[35] In re-examination Dr Ferguson's counsel asked Dr Cameron:

"There's evidence before his Honour that on the 23rd of September ... the physiotherapist, having received Ms Mules' complaints about neck pain ... performed therapy in the form of traction and passive flexion ... Are you able to say with your understanding of what that - that involves, whether that sheds any light on the question as to what might have been revealed by a neck examination, with respect to a diagnosis of meningitis the next day? --- It's just an odd finding to me. If the patient can tolerate neck flexion and also neck traction with meningial irritation - it's an odd response. One would have imagined that would have aggravated her symptoms at the time or she - or the therapist would not have been able to actually do it without complaint. It probably is a bit misleading to the docs in that she gained some benefit from that. I don't know how she would've, but it would tend to make one think more of a cervical spondylosis at the time as the cause of pain, which it obviously wasn't. If a physiotherapist could produce neck flexion it mustn't have been - her neck problem must not have been particularly troublesome at that time. I mean, I'm not in the room to see the extent it was flexed and all that type of stuff, but the mere fact it's mentioned means it was able to be done, which is a little unusual, without causing hardship." (errors in the original)[36]

[21] In further cross-examination Dr Cameron agreed with Ms Mules' counsel that it was difficult to comment without knowing exactly what physiotherapy was performed. Counsel asked Dr Cameron to assume that the physiotherapist only treated Ms Mules on the one occasion on 23 September; his only recollection was that she was distressed; and that he performed the treatment whilst she was lying on her back. Counsel asked

"... Is that additional information further assist (sic) you in ascertaining whether, on the [24th] of September, if a patients flexion had been examined at the hospital, whether that would have elicited some symptom of meningism?"

Dr Cameron responded that unless he actually saw the examination it was hard to comment.[37]

[22] In my view, a thorough review of the evidence of Mr Elsmore, Dr Whitby and Dr Cameron does not support the conclusion that had Dr Ferguson examined Ms Mules' neck by performing the chin on chest test on 18 or 19 September, she would not have detected neck stiffness suggestive of meningial irritation. Rather, for the reasons detailed by Boddice J, particularly as it is now uncontentious that she had cryptococcal meningitis at this time, such an examination was likely to have revealed an inability to place her chin on her chest. This, combined with her history of headaches and facial flushing and her prolonged distressed and deteriorating condition since 5 September required Dr Ferguson, acting reasonably, to refer Ms Mules to a neurologist or specialist physician so as to exclude the possibility of her having the insidious and most serious disease of cryptococcal meningitis. Ms Mules was plainly keen to alleviate her prolonged distress and had conscientiously attended various medical and health practitioners since 5 September. As his Honour found, she would have attended a specialist by Monday, 22 September and her cryptococcal meningitis would likely have been diagnosed and treated by 23 September, preventing the grievous injuries she has suffered.

[23] I agree with the orders proposed by Boddice J.

[24] APPLEGARTH J: I have had the advantage of reading the reasons of Boddice J, which describe the background to the appeal, the parties' submissions and the issues. It is unnecessary for me to repeat these matters.

[25] The principal issue in this appeal is whether the exercise of reasonable care and skill by the respondent on 18 and 19 September 2008 would have led her to recognise the potential presence of a serious central nervous system condition, such as cryptococcal meningitis, rather than the musculo-skeletal disorder from which the appellant was apparently suffering. If so, then the potential condition would have been of sufficient seriousness to warrant referral for urgent specialist assessment. On the basis of the primary judge's findings, there would have been just enough time for a diagnosis and treatment for cryptococcal meningitis to avoid permanent damage to the appellant's health.

[26] The primary judge's description of cryptococcal meningitis is an essential point of reference:

"[6] Cryptococcal meningitis is an extremely rare infection that most general practitioners will never see during their practising life. In Australia it is more common in the tropical north but even there only about 20 cases per million people occur per year.

[7] Cryptococcal meningitis is a form of fungal infection of the meninges, the tissue membranes that protect and enclose the brain and spinal cord. It is caused by infection of the lung by a yeast, cryptococcus neoformans, which then spreads though the blood stream to the brain causing meningitis.

[8] Its onset is more insidious and gradual than bacterial meningitis. While its onset can sometimes be rapid, the symptoms of cryptococcal meningitis typically develop over a period of at least two to four weeks. However in that period symptoms may not be sufficiently present to be recognised. It is frequently not diagnosed in the early presentation of a patient because it is a chronic low-grade inflammatory disturbance until the later stages of the illness."[38]

[27] The classical features of meningitis include:

2. neck stiffness with the patient unable to flex their neck forward so that their chin touches the chest

[28] The appellant had a history of musculo-skeletal conditions and sought treatment from a chiropractor on 5, 8 and 11 September 2008. She consulted the respondent on 12 September, who advised her to take simple analgesia and seek other treatment.[39] The appellant saw her chiropractor on 12, 15 and 17 September, before consulting the respondent again on 18 September, when a CT scan was ordered. It detected irregularities with the appellant's cervical spine. On 19 September, on the basis of her observations and the report of the CT scan, the respondent diagnosed the appellant's problem as musculo-skeletal and prescribed additional medication for pain relief.

[29] The primary judge's comprehensive review of the evidence concluded that at the time of the respondent's consultations with the appellant on 18 and 19 September the appellant:

(b) exhibited in her presenting demeanour a reduced range of movement of her neck;

(d) was sometimes experiencing headaches which appeared to be connected with her neck pain;

(e) was sometimes experiencing flushing to the face which appeared to be connected with her neck pain."[40]

[30] Two of these symptoms, neck stiffness and headache, are relevant to the potential presence of cryptococcal meningitis. However, the appellant's headache was intermittent, not the chronic headache which the expert evidence described as a classic feature of meningitis. The primary judge found that the appellant did not report to the respondent symptoms of nausea and vomiting, aversion to light or raised temperature.

[31] The primary judge concluded, correctly in my view, that the exercise of reasonable care and skill by the respondent required her to additionally:

• physically examine the appellant's neck on 18 September;[41]
  • inquire about the appellant's past reported symptoms of headache and facial flushing associated with her neck pain.[42]

If she had done so, then, according to the primary judge's findings, the respondent:

• would not have detected neck stiffness suggestive of meningeal irritation, and the physical examination would not have caused the respondent "to suspect the presence of a symptom with a cause any more sinister than a musculo-skeletal cause";[43]
• would have ascertained that the appellant experienced intermittent headache towards the lower back of the head, consistent with its reported associated neck pain and a musculo-skeletal cause; and inconsistent with the type of constant headache associated with cryptococcal meningitis.[44]

[32] A critical issue on the appeal is whether the primary judge erred in concluding that a physical examination "would not have detected neck stiffness suggestive of meningeal irritation"[45] and that further inquiry about past symptoms of headache and facial flushing "would not have detected anything that would have prompted a different course than that taken".[46] The primary judge concluded that the appellant "did not as at 18 or 19 September have a discernable collection of symptoms which should have caused the [respondent], acting with reasonable care and skill, to conclude that she should refer the [appellant] for urgent or specialist assessment".[47]

[33] The omission on those days to physically examine the neck and to enquire about headache and facial flushing was found not to have made a difference to the outcome. The examination and further enquiry would not have caused the respondent to detect a symptom "with a cause any more sinister than a musculo-skeletal cause"[48] and to recognize that a potentially serious central nervous condition may have been developing.[49]

[34] The appellant failed to prove a causative breach of duty.

Would a neck examination and further enquiry about headaches have made a difference?

[35] The appellant contends that the primary judge erred in concluding that a physical examination of the neck and further inquiry about headaches and facial flushing would not have prompted a different course than that taken. The main causal issue is the cumulative effect of the breaches: what the respondent would have thought and done if she had both undertaken the neck examination and asked whether the appellant was still experiencing headaches and facial flushing. However, it is convenient to consider the two matters in turn.

[36] The term neck stiffness was used in the evidence. Depending upon its context it referred to two different things:

(a) a restriction in the movement of the neck and head indicating a reduced range of movement;

(b) neck stiffness suggestive of meningeal irritation.

For example, Professor Eisen referred to a reduced range of movement of the neck as neck stiffness, and the chiropractor Mr Collis found that the appellant had a restricted range of movement when he examined her, initially on 5 September 2008. Neck stiffness in the sense of a reduced range of movement did not prevent the chiropractor from performing manipulation on the appellant's cervical spine on later dates.

[37] Neck stiffness in that sense may be distinguished from neck stiffness suggestive of meningeal irritation. Dr Kable described this type of stiffness as having an acute onset leaving the patient virtually unable to move his or her neck or at least unable to move their neck in a "fluid" way. According to Dr Kable it is a late onset symptom and by the time in manifests the patient is already "very sick" and will not move their head in any direction. Dr Whitby's evidence was that neck stiffness caused by meningeal irritation is a result of it being painful to move the neck. A patient who can move his or her neck forward, either actively or passively, is not considered as presenting consistently with meningism.

[38] The primary judge distinguished between the two kinds of neck stiffness. His comprehensive reasons included a review of evidence that the appellant was observed to have a reduced range of neck movement, and a finding that on 18 and 19 September the appellant exhibited "a reduced range of movement of her neck".[50] The appellant did not report to the respondent that her neck had restricted movement.[51] But a reduced range of movement was noted in writing by the respondent on 18 September, based on her observation that the appellant's neck and head had less freedom and some reduced range of movement. The primary judge may be said to have found that the appellant exhibited neck stiffness in the sense of a reduced range of neck movement.

[39] As to evidence of neck stiffness suggestive of meningeal irritation, the primary judge reviewed the evidence, including the physical manipulation of the appellant's neck by a physiotherapist on 23 September, in concluding that it was unlikely that physical examination of the appellant's neck four or five days earlier on 18 or 19 September "would have provoked a response suggestive of meningism".[52] The following paragraph is central to the primary judge's conclusion about the appellant's failure to prove a causative breach of duty:

"[239] The plaintiff's evidence referred repeatedly to her neck pain. Her only reference to stiffness of any kind was informing the physiotherapist that she was stiff and sore in the mornings. Noone gave evidence of observing her holding her neck stiffly or without movement. Her neck was manipulated without reported resistance by a chiropractor on 17 September and a physiotherapist on 23 September. Had the defendant physically examined the plaintiff on 18 or 19 September she would not have detected neck stiffness suggestive of meningeal irritation. Such an examination would not have caused her to suspect the presence of a symptom with a cause any more sinister than a musculo-skeletal cause."

The sentence which refers to the absence of evidence of observing the appellant "holding her neck stiffly or without movement" should be understood in the context of the judgment as referring to the absence of observation of the appellant holding her neck stiffly so as to suggest meningism. As noted, the primary judge expressly found that the appellant exhibited neck stiffness in the form of a reduced range of movement. He could hardly be taken to have forgotten this evidence and his own finding. The sentence in question might have been better expressed. Any error in not clarifying in that sentence that the neck stiffness being referred to was neck stiffness suggestive of meningeal irritation is of no consequence because the primary judge did in fact find that the appellant exhibited a reduced range of movement of her neck.

[40] The appellant challenges the critical factual finding that physical examination on 18 or 19 September "would not have detected neck stiffness suggestive of meningeal irritation". That finding can be seen to rest on:

• the absence of a report of neck stiffness when the appellant consulted the respondent on those dates;
• a report to the physiotherapist on 23 September that her neck was stiff and sore in the mornings: suggesting it was not always stiff;
• the absence of observation of neck stiffness suggestive of meningeal irritation or the appellant holding her head without movement;
• the manipulation of the neck by a chiropractor on 17 September;
• the manipulation of the neck by a physiotherapist on 23 September.

The appellant contends that the primary judge erred by finding that the failure to physically examine the neck was not causative.

[41] First, the appellant submits that the primary judge found that the appellant's symptoms had not worsened when she presented on 18 and 19 September. But no such finding was made. The primary judge did not accept the appellant's evidence that she told the respondent on 18 September that her symptoms, as reported on 12 September, had "increased immensely or were a lot stronger", but did find that there had been "some decline" in the appellant's condition.[53]

[42] Second, the finding that the appellant's neck was manipulated without resistance on 17 September is submitted to be against the weight of the evidence. When the chiropractor, Mr Collis, first assessed the appellant on 5 September 2008, he found some restricted "range of motion", including a loss of five degrees in the appellant's flexion by testing her active range of motion. She had pain on flexion to T6 at that point. He performed manipulations on 12, 15 and 17 September. He did not record complaints of neck pain when he performed those manipulations, or anything unusual, that required recording other than her complaint of headache and still being sore on 17 September. He did not record or recall any reduction in movement over the amount he had observed and recorded on 5 September. It is unlikely that Mr Collis had a good recollection of each of the appellant's visits.[54] His evidence about the kind of manipulation he performed on each occasion was scant. Still, he did not record or report that the appellant's range of movement reduced over time or that there was resistance to manipulation of the neck. His evidence did not suggest that the appellant held her head in a rigid position or resisted movement. Mr Collis' evidence did not support a finding of neck stiffness suggestive of meningism. The primary judge did not err in finding that the appellant's neck was manipulated without resistance on 17 September.

[43] Third, the appellant submits that the finding that physical manipulation of her neck by the physiotherapist, Mr Elsmore, on 23 September "was able to occur and apparently did not encounter an extraordinary reaction or a reaction so severe that it caused that process to be abandoned"[55] was against the weight of the evidence. However, the evidence supported that conclusion. Mr Elsmore's evidence was that the appellant reported feeling stiff and sore on waking in the morning and her problems were aggravated by "rotation of the neck and side lying". On examination she was protective of movement and "wasn't moving her neck very much at all." Mr Elsmore was able to provide treatment, including traction and passive flexion. He demonstrated what was involved with passive flexion.[56]

[44] Mr Elsmore's evidence was that if there had been an adverse response, he would have noted it. There was no such note. His recollection was that the appellant, who had appeared distressed at the start of the consultation, "seemed to respond reasonably well" to the measures he employed.

[45] The appellant had a poor recollection of the visit. Her evidence did not contradict the evidence of Mr Elsmore. The primary judge's finding which the appellant seeks to challenge was supported by the evidence, and not contrary to the weight of the evidence. The primary judge gave careful consideration to the 23 September consultation with Mr Elsmore[57] and had the advantage of assessing his evidence, including his demonstration of his treatment. The primary judge was entitled to make the findings which he did about the physical manipulation of the appellant's neck on 23 September.[58]

[46] Mr Elsmore did not give oral evidence that the passive flexion which he performed allowed the appellant's chin to touch her chest, and the appeal record does not allow a view to be taken about what his demonstration of passive flexion showed. Relevantly, his evidence was to the effect that the appellant's neck could be flexed without a report of increased pain or the reactions associated with meningeal irritation.[59]

[47] The evidence of Mr Elsmore about his manipulation of the appellant's neck supported the conclusion that four or five days earlier the appellant would not have exhibited neck stiffness suggestive of meningeal irritation if her neck had been manipulated.

[48] The appellant also points to the respondent's evidence that when she saw the appellant on 18 September her neck movement was "a little bit less free in terms of her animation and [when] she spoke, so from that I assumed she had some reduced range of movement", and that her different posture from the previous consultation in terms of head movement could be explained by stiffness. The respondent's observation that the appellant had a stiff neck on 18 September did not suggest that the stiffness was due to meningeal irritation, as distinct from the kind of musculo-skeletal problems that her history and the CT scan taken that day indicated.

[49] Relevantly, the appellant did not report to the respondent that she had a stiff neck, let alone that she could not flex her neck. She did not report that her range of movement, either by rotation or flexion, was limited. The respondent observed some movement in her neck.

[50] I should add that the primary judge did not place any reliance on Dr Miller's examination on 24 September in reaching his conclusion about what a physical examination of the neck on 18 or 19 September would have detected.[60] The respondent's submissions do so, and point out that Dr Miller did not detect any neck stiffness that day. This is true. However, Dr Miller did not physically examine the appellant's neck. I agree with Boddice J that Dr Miller's evidence was not definitive as to the presence or absence of neck stiffness on 24 September.

[51] The finding of the primary judge which is challenged was supported by the expert evidence about neck stiffness suggestive of meningeal irritation, its onset and the pain and resistance that is experienced by physical manipulation of the neck of a person suffering meningeal irritation.

[52] One small part of Dr Whitby's evidence was premised on the assumption that the physiotherapist felt there was "reasonable movement". That did not detract from his other evidence about neck stiffness suggestive of meningeal irritation. His evidence was that if the stiffness is from inflammation of the coverings of the brain from infection, then "pain and resistance to movement is going to be there no matter how you test it". Patients resist movement because it hurts. His evidence was that if a physiotherapist could manipulate a patient's neck without significant pain then the patient did not have neck stiffness from meningitis. Frequently, if the head of a person with meningitis is flexed forward, then the whole torso comes forward: they bend at the spine, not at the neck, due to neck stiffness.

[53] Dr Cameron's evidence was that it would be an odd response if a patient with meningeal irritation could tolerate neck flexion and also neck traction. A therapist would not be able to manipulate the neck that way without complaint. If a physiotherapist could produce neck flexion, then "the neck problem must not have been particularly troublesome at that time". Although Dr Cameron was not in a position to say the extent to which the neck was flexed by the physiotherapist, he considered the fact that the physiotherapist was able to flex the neck without causing hardship was unusual.

[54] Dr Kable gave evidence that neck stiffness is a late sign in the course of meningitis, and that any examination for neck stiffness carried out on 12, 18 or 19 September would be unlikely to have yielded an indication of neck stiffness suggestive of meningeal irritation.[61]

Conclusion: neck stiffness suggestive of meningeal irritation

[55] I am not persuaded by the appellant's argument that the trial judge's finding that a physical examination on 18 or 19 September would not have detected neck stiffness suggestive of meningeal irritation was erroneous. The finding was not based on a misapprehension of evidence about neck stiffness. The trial judge considered in commendable detail the evidence of Mr Collis, the respondent and Mr Elsmore about the appellant's reduced range of movement, and found that the appellant presented on 18 and 19 September with a reduced range of movement of her neck.

[56] On 18 September, the appellant did not report neck stiffness, but was observed to have some restriction on neck movement. Her neck had been manipulated the previous day. More importantly, it was manipulated, including by passive flexion, on 23 September, without the kind of pain or reaction to such a movement which the expert evidence stated would be experienced by a person suffering a meningeal infection that produced neck stiffness.

[57] The primary judge did not err in finding that a physical examination "would not have detected neck stiffness suggestive of meningeal irritation".[62] This finding was properly made and supported by the evidence.

[58] The evidence left open the possibility that a physical examination, including passive flexion, may not have allowed the appellant's chin to touch her chest. However, that possibility was not enough to discharge the appellant's onus of proving what a physical examination of her neck and further inquiry about her headache probably would have detected. On this aspect of the causal breach issue, the appellant failed to prove that a physical examination of her neck probably would have detected neck stiffness suggestive of meningeal irritation, as distinct from neck stiffness from a musculo-skeletal cause.

[59] The primary judge found that if the respondent had clarified whether the appellant's headaches were continuing, the appellant "would inevitably have explained she was from time to time still experiencing headaches, apparently associated with her neck pain".[63] The appellant's submissions contend that if the respondent had inquired about the headaches, she would have ascertained that there was a constant headache. But there is no sound basis to disturb the primary judge's assessment of the evidence that at the relevant time the plaintiff was experiencing intermittent headache associated with neck pain.

[60] If on 18 September the respondent had enquired of the appellant about the progress of her past reported symptoms of headache and facial flushing then she would have ascertained that she "was still sometimes experiencing headache associated with her neck pain".[64] The intermittent headache was located towards the lower back of the head, and its intermittent nature was inconsistent with the type of headache associated with cryptococcal meningitis. The primary judge referred to Dr Whitby's evidence that "headache associated with cryptococcal meningitis once begun, continues, and becomes worse and the headache persists without break".[65]

[61] On 12 September the respondent had noted that the appellant's intermittent neck pain was causing flushing to the face, and there is no basis to question the finding that if the respondent had asked on 18 September if her neck pain was still causing flushes to the face, she would have indicated it was.[66]

[62] The appellant's neck pain, associated intermittent headache and facial flushing, had not improved and seemed to have worsened between the consultations on 12 and 18 September. The simple analgesia that had been recommended on 12 September may not have been adequate to treat the appellant's neck pain and associated symptoms. But this does not mean that her headaches were other than intermittent. It did not suggest that her pain and her restricted neck movement had other than a musculo-skeletal cause.

The cumulative consequences of the two breaches of duty

[63] The primary judge ultimately concluded that if the respondent had physically examined the appellant's neck and enquired about the progress of her past reported symptoms of headache and facial flushing, she "would not have detected anything that would have prompted a different course than that taken".[67] This conclusion was based upon his earlier findings that:

1. a physical examination of the neck would not have detected neck stiffness suggestive of meningeal irritation;
2. enquiry of the appellant would have disclosed intermittent headache associated with her neck pain.

I agree with Boddice J that the consequences of the two breaches of duty had to be assessed collectively. This is what the primary judge ultimately did. The issue is whether his conclusion was in error.

[64] The discharge of the respondent's duty of care and the consequences of breach arose for consideration on consecutive days. Breaches of duty were found to have occurred on each day. But in some ways the consultations on 18 and 19 September were akin to an extended consultation, broken by the need to obtain the CT scan which showed five bulging discs in the appellant's cervical spine. The appellant accepted that on 19 September she did not tell the respondent of any new symptoms.[68] In the circumstances, it is convenient to consider, as the parties' submissions and the primary judge did, the causal consequences of the respondent's breaches on 18 and 19 September together.

[65] The neck pain, associated intermittent headache and facial flushing, and reduced range of neck movement were consistent with cervical spondylosis and the abnormalities reported on the CT scan.

[66] That did not, however, necessarily exclude the presence of some other serious condition. The issue is whether the symptoms which were known along with the symptoms which would have been detected as a result of a physical examination of the neck and enquiry about headaches and facial flushing, would have led the respondent to recognize the potential presence of a serious central nervous system condition, such as cryptococcal meningitis, rather than the musculo-skeletal disorder from which the appellant was apparently suffering.

[67] A relevant issue, and one considered by the primary judge in this context, was the absence of certain symptoms. The appellant did not report to the respondent that she was nauseous and had vomited. Her headache was not constant. She did not have a raised temperature. She was not hypersensitive to light.[69]

[68] It cannot be concluded that a physical examination of the appellant's neck on 18 or 19 September would have revealed neck stiffness suggestive of cryptococcal meningitis, as distinct from neck stiffness attributable to the musculo-skeletal disorder from which the appellant was suffering. She may have told the respondent, if she had been asked about her neck stiffness, something similar to what she told Mr Elsmore a few days later, namely that she was stiff and sore in the mornings. If asked, she would have described intermittent headache associated with her neck pain.

[69] The symptoms that would have been observed or detected by the additional examination and enquiry which the primary judge found the respondent should have undertaken, along with the absence of other symptoms, support the primary judge's conclusion that the appellant "did not as at 18 or 19 September have a discernible collection of symptoms which should have caused the [respondent], acting with reasonable care and skill, to conclude that she should refer the [appellant] for urgent or specialist assessment".[70]

[70] The fact the appellant had neck stiffness and headache, which are symptoms of cryptococcal meningitis is relevant, but not decisive of the issue of what the respondent would have done if she had physically examined the appellant's neck and enquired about the progress of her past reported symptoms of headache and facial flushing. General neck stiffness which was not suggestive of meningeal irritation, along with intermittent headaches and facial flushing associated with neck pain were symptoms of the musculo-skeletal disorder from which the appellant was apparently suffering, as confirmed by the CT scan.

[71] If the appellant had reported neck stiffness suggestive of cryptococcal meningitis (as distinct from stiffness in the form of a restricted range of movement), or if there was evidence that in the days immediately before or after 18 and 19 September Mr Collis or Mr Elsmore had been unable to flex the appellant's neck to any significant degree, then the position would have been quite different. However, the evidence that her neck was able to be manipulated, particularly by Mr Elsmore who performed passive flexion on 23 September, were relevant matters for the primary judge to assess. So too was the fact that, if asked, the appellant would have reported intermittent headache, not the constant headache which might indicate the presence of cryptococcal meningitis or some other sinister central nervous system condition. These facts, along with the absence of other symptoms, justified the primary judge's conclusion that additional examination and enquiry on 18 or 19 September would not have prompted a different course of action. That conclusion has not been shown to have been in error.

[72] The fact that the appellant had cryptococcal meningitis when she consulted the respondent on 18 and 19 September is insufficient to prove in all the circumstances that a physical examination of her neck on either of those days would have revealed significant neck restriction suggestive of meningeal irritation. The symptoms of cryptococcal meningitis may not have developed to that point of time to be recognized. Dr Whitby, an infectious diseases physician, explained at the trial:

"The classical features of meningitis are very obvious: the temperature goes up because it's an infection. The patient develops a headache, because the pressure in the skull, around the brain, increases. That causes the patient to have vomiting and nausea. But cryptococcal meningitis is a very insidious meningitis; a very insidious presentation, in some cases, and it could - it's quite conceivable that those symptoms were not sufficiently present to be recognized..."

[73] As at 18 and 19 September, a number of symptoms had not developed and one cannot reasonably infer that because cryptococcal meningitis was developing it had developed to a stage where the appellant would not have been able to actively or passively flex her neck on those days. Four or five days later she was "not moving her neck very much at all". But her reported problem, as explained to Mr Elsmore, was with rotation. She did not report that her neck pain was aggravated by flexion. The passive flexion which Mr Elsmore performed was undertaken without a report her neck could not be flexed forward. His contemporaneous note and his evidence suggest that it could. In the circumstances, I am unwilling to infer from the presumed presence of cryptococcal meningitis on 18 and 19 September that a physical examination of the appellant's neck would have revealed significant neck restriction suggestive of meningeal irritation on those days.

[74] The appellant's case on causation failed for lack of sufficient evidence to conclude that had a physical examination of the neck, in conjunction with enquiry about headaches and facial flushing, been undertaken it would have made a difference to the tragic outcome which befell the appellant.

Appeal against findings about symptoms at consultations

[75] Grounds 8, 9 and 10 of the notice of appeal challenge the primary judge's findings about the consultations on 18 and 19 September 2008 and the appellant's symptoms at those times. I agree with Boddice J that the findings were consistent with collateral material, and that the appellant has not established a basis to overturn findings of fact, which were based, in part, on a rejection of certain evidence given by the appellant and her mother. In particular, it was open to the primary judge to find that at the relevant time the appellant's headaches were intermittent rather than constant, and that the appellant did not report nausea and vomiting to the respondent.

Appeal against upholding the s 22 defence

[76] I agree with Boddice J that the evidence of Dr Kable and Dr Turnbull did not warrant the conclusion that the respondent had discharged her onus in establishing a defence under s 22 of the Civil Liability Act, 2003 (Qld). Section 22(1) 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."

The defence turns upon proof of how the professional in fact acted, and this may differ from how the person is alleged by either of the parties to have acted. As the primary judge noted, the facts as found were largely consistent with the respondent's version of events. However, I do not consider that either Dr Kable or Dr Turnbull's evidence established that the facts as found about what the respondent did and failed to do established that she "acted in a way that at the time was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice". Nor was it established by other evidence, including the evidence of Dr Vinen, Dr Whitby and Dr Eisen.

[77] As for Dr Kable's evidence, he explained the importance of a general practitioner, having been told of a headache, to ascertain its location, duration, intensity and frequency, so as to identify the cause of the headache.[71] These would be standard questions. Here, the appellant complained of headache on 12 September, and of neck pain on 18 September. Dr Kable did not give evidence that in the circumstances a failure to clarify the nature of the neck pain (which also was described in the evidence as a basal headache) and whether the respondent's headaches persisted was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice. His evidence tended to suggest that competent professional practice would have been to inquire about headache.

[78] On the issue of neck examination, and whether the respondent acted in a way that was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice, in the present context one must avoid generalities, such as the proposition that a patient complaining of neck pain may not require physical examination, since in some circumstances examination by observation and taking information may suffice.[72] All depends on the circumstances.

[79] Dr Kable's report dated 4 January 2013 about whether the respondent acted in a way that was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice was directed at the consultation on 12 September. An earlier report of Dr Kable dated 17 August 2012 simply asserted that a significant number of general practitioners would have managed the appellant in exactly the same manner as the respondent, without developing the reasons for that conclusion. It referred to his initial report dated 24 February 2010, which addressed the related, but different, question of whether the respondent's actions were reasonable, and of a standard expected of a general practitioner. In doing so Dr Kable noted that on 18 September 2008 there was a reduced range of movement in the neck, and stated that neck stiffness is a specific clinical sign that is elicited by the examining doctor, and then tested as the doctor attempts to flex the neck forward pointing the chin towards the chest. Despite this, Dr Kable opined that there was "no indication on any of these occasions" (including 18 and 19 September) for the respondent to seek to elicit neck stiffness. Yet, the evidence was of an observed restriction on range of movement and neck pain. His assertion in his report of 4 January 2013 that "[t]here was no indication on any of these three occasions for [the respondent] to examine [the appellant] for neck stiffness" is seemingly contradicted by the observation made by the respondent on 18 September of neck stiffness, in the sense of a reduced range of movement.

[80] The facts as found are that the appellant exhibited a reduced range of movement, had continuing neck pain, and, if asked, would have reported continuing intermittent headaches and flushing to the face which appeared to be connected with her neck pain. Dr Kable's evidence does not seem to establish that, in not undertaking a physical examination of the appellant's neck in those circumstances, the respondent acted in a way that was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.

[81] Dr Turnbull's earlier reports assumed that a physical examination had taken place. His supplementary report dated 18 October 2013 specifically stated that it was standard practice to conduct a physical examination of a patient complaining of neck pain. He also referred to a standard text in support of the opinion that a physical examination of the neck should have been undertaken if the respondent had complained about headache continuing in addition to a painful neck with an observed range of movement and dizziness. At one stage he expressed a different view based upon an acceptance of the respondent's version of events.[73] But this version did not take into account the persistence and possible worsening of headaches. I would regard Dr Turnbull's supplementary report dated 18 October 2013 as providing the best guide to his opinion about what standard practice required of a reasonable general practitioner when faced with the appellant's actual symptoms. As the primary judge found, the appellant was known by the respondent to have continuing neck pain, reduced range of movement of her neck and to sometimes experience dizziness. She also either knew or, exercising reasonable care, should have known that she was sometimes experiencing headaches and flushing to the face which appeared to be connected with her neck pain.[74]

[82] Dr Turnbull's evidence does not establish that a general practitioner who failed to undertake a physical examination of the neck in those circumstances would have acted in a way that was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.

[83] I should add that Dr Vinen's evidence supported the view that a physical examination should have been undertaken in the circumstances.[75] The joint report of Dr Eisen and Dr Whitby deferred to the evidence of experienced general practitioners. The primary judge understandably did not rely upon it in reaching a conclusion about the defence under s 22. Instead, he relied on Dr Kable's opinions and the view expressed at one stage by Dr Turnbull based upon an acceptance of the respondent's version of events.

[84] As between the appellant and the respondent's competing version of events, the facts as found were generally consistent with the latter. But the defence under s 22(1) depended on the facts as found, including the fact that the respondent failed to inquire about the nature and extent of the respondent's headaches on 18 September. Based on the symptoms which the primary judge found the appellant had that day, Dr Turnbull's evidence, particularly his supplementary report, supported the conclusion that a physical examination should have been undertaken as a standard practice upon someone with neck pain, and also upon someone who presented with the other symptoms that were found by the primary judge. Dr Kable's evidence was not persuasive as to why a physical examination would not have been undertaken by someone who presented with, among other things, neck pain and a stiff neck.

[85] In my view, the defence under s 22(1) to a breach of duty claim was not established, as the primary judge found, by the evidence of Dr Kable and Dr Turnbull, or the evidence as a whole.

[86] Had the defence been established, then s 22(5) would not have operated to exclude it. I agree with Boddice J and with the primary judge[76] in that regard. In this case the relevant breach of duty and the liability arises in connection with a failure to examine and a failure to inquire, which in turn were alleged to result in a failure to recognize a potentially serious condition and refer the appellant to a specialist for urgent assessment. This was not a case in which the posited liability arising from those breaches arose "in connection with the giving of (or the failure to give) a warning, advice or other information".

[87] My earlier conclusion that the primary judge did not err in finding that the proven breaches of duty were not causative of injury and loss, makes it unnecessary to decide the grounds of contention raised by the respondent about other reasons why the decision of the primary judge should be upheld. I will, however, briefly address those topics.

[88] I agree with the primary judge's finding of a breach of duty in failing to conduct a physical examination of the appellant's neck on 18 and 19 September 2008.[77] I agree with the reasons of Boddice J on this issue. In circumstances in which the appellant did not provide to the respondent on those days an account of the nature and extent of her then neck stiffness, and the limits on her range of movement, a neck examination was a simple exercise to undertake. It is a standard exercise which is taught to general practitioners for a patient complaining of neck pain. Little time was required to undertake it. It would better inform diagnosis and treatment than the patient's description of their neck movement (a description not sought by the respondent) or an observation of some restriction on neck movement. No harmful consequences were suggested to accompany the simple exercise of a physical examination of the neck. The primary judge was correct to find a breach of duty in that regard.

Notice of Contention: Causation issue about timing of diagnosis and treatment

[89] The respondent challenges the primary judge's precautionary finding that referral on or about 19 September would have likely resulted in diagnosis and treatment for cryptococcal meningitis by or on 23 September 2008. I agree with the reasons of Boddice J.

[90] The relevant causal inquiry depends largely upon an assumption about the potentially serious central nervous system condition that would have been suspected if a physical examination of the neck had detected resistance to movement on passive flexion, an increase in pain when the neck was passively flexed or an inability to flex the head until the appellant's chin touched her chest. I shall assume (contrary to the finding of the primary judge with which I agree) that a physical examination of the neck would have detected neck stiffness suggestive of meningeal irritation. That fact, in conjunction with responses to enquiries about headaches, facial flushing and dizziness, left open the possible presence of a serious central nervous system problem, such as cryptococcal meningitis. This is so, notwithstanding the absence of symptoms such as nausea and vomiting, chronic or constant headache, aversion to light and raised temperature. Raised temperature may have been avoided by the use of drugs.

[91] Despite the absence of a cluster of symptoms which would raise cryptococcal meningitis as a probable cause of neck stiffness, headaches and other symptoms, the detection of neck stiffness suggestive of meningeal irritation would, in all the circumstances, warrant a referral for an assessment. If the appellant had been informed that cryptococcal meningitis was a possibility, and told of its consequences, there is no doubt that she would have sought an urgent assessment. If an appointment with a specialist could not be obtained as a matter of urgency, then the appellant would have attended at a hospital with a referral which would have raised the suspicion of cryptococcal meningitis. The likely course of events would have been testing for cryptococcal meningitis and other infections of the central nervous system, diagnosis and treatment. On such a scenario, treatment would have commenced before or on 23 September 2008 and the appellant would not have suffered permanent injury to health.

[92] The primary judge's precautionary finding that referral on or about 19 September would have led to a diagnosis of cryptococcal meningitis, that treatment would have commenced before or on 23 September 2008 and the appellant probably would not have suffered permanent injury to health was correct.

[93] The appellant's case failed at trial for lack of sufficient evidence to conclude that a physical examination of the neck, in conjunction with enquiry about headaches and facial flushing, would have made a difference. She failed to prove that these things would have led the respondent to recognize the potential presence of a serious central nervous system condition, such as cryptococcal meningitis, rather than the musculoskeletal disorder from which the appellant was apparently suffering. In my view, the primary judge did not err in concluding that the appellant failed to prove a causative breach of duty.

[94] In my view, the appellant did not prove that passive flexion of her neck by the respondent on 18 or 19 September probably would have shown the kind of resistance to movement suggestive of meningeal irritation and that she probably would have been unable to touch her chest with her chin. One reason is that four or five days later a physiotherapist performed manipulation of the appellant's neck, including passive flexion, without provoking a response suggestive of meningism.

[95] The restriction on movement or neck stiffness that was observed by the respondent on 18 September was consistent with the neck stiffness observed by the physiotherapist on 23 September, when the appellant reported that she was stiff and sore in the mornings. I am unable to conclude that a physical examination of the appellant's neck on 18 or 19 September would have revealed neck stiffness suggestive of cryptococcal meningitis, as distinct from neck stiffness attributable to the musculo-skeletal disorder from which the appellant was suffering.

[96] The appellant's intermittent headaches did not exclude the presence of cryptococcal meningitis, but they were not the chronic or constant headaches that are a classic symptom of that condition. The appellant did not report symptoms of meningitis to the respondent such as nausea and vomiting or aversion to light.

[97] In the circumstances, the appellant did not prove that a physical examination of her neck or an enquiry about headaches and facial flushing would have led the respondent on 18 or 19 September to recognize the potential presence of a serious central nervous system condition, such as cryptococcal meningitis, and to refer her for urgent assessment by a specialist. The appellant failed to establish that the proven breaches caused her injury and loss. The appellant's claim for substantial damages was correctly dismissed.

[98] I would order that the appeal be dismissed with costs.

[99] BODDICE J: The appellant, a 49 year old female, sustained devastating personal injuries, including the loss of her sight and hearing, after contracting cryptococcal meningitis in or about September 2008. She sued the respondent, her general practitioner, claiming damages for her personal injuries, which she alleged were occasioned by the respondent's breach of duty in consultations in the weeks leading up to the ultimate diagnosis.

[100] On 25 March 2014, the appellant's claim was dismissed, and the appellant was ordered to pay the respondent's costs. The trial judge found the respondent had failed to exercise reasonable care in aspects of the appellant's care, but that those breaches of duty were not causative of the appellant's loss and damage. The trial judge also found s 22 of the Civil Liability Act 2003 (Qld) ("the Act") provided a defence as the respondent had acted in a way which was widely accepted by peer professional opinion as competent professional practice.

[101] The appellant appeals that decision. At issue are the trial judge's findings as to the appellant's symptoms at the time of the relevant consultations, the likely outcome had appropriate examinations been undertaken at those consultations, causation, and s 22 of the Act. The respondent has also served a notice of contention, placing in issue the trial judge's findings of breach of duty by the respondent, and as to likely timing of any diagnosis and treatment.

(a) The appellant consulted the respondent in June 2008 complaining of rushes of blood to her head which made her feel dizzy. The respondent queried the onset of menopause and gave her a referral for a mammogram.

(b) By early September 2008, the appellant had developed a sore neck and was experiencing headaches periodically. She consulted a chiropractor complaining of neck pain and headaches and of rushes of blood and dizziness.

(c) On 12 September 2008, the appellant consulted the respondent complaining of worsening neck pain over the past six weeks, bad headaches and rushes of blood of increasing frequency and intensity. The respondent advised continued pain medication and chiropractic treatment.

(d) Later that day, and subsequently on 15 and 17 September 2008, the appellant consulted her chiropractor who performed manipulation of her spine and pelvis. On 17 September 2008, the chiropractor certified the appellant as unfit to work until 21 September 2008.

(f) On 18 September 2008, the appellant consulted the respondent complaining of continuing significant headaches and dizziness and a loss of strength in her right leg. The appellant reported she was barely able to function at home, had been unable to continue working and was no longer able to drive her motor vehicle. The respondent referred the appellant for a CT scan of her spine, and prescribed medication.

(h) The appellant attended the respondent's rooms on 19 September 2008 for the results of the CT scan conducted on 18 September 2008, accompanied by her mother who had moved in to help take care of her. The appellant reported immense pain in her neck and in the base of her skull. The respondent advised the CT scan had shown five bulging discs in her cervical spine, prescribed medication, advised the appellant to go to bed for a week and provided the appellant with a medical certificate until 26 September 2008.

(k) On 23 September 2008, the appellant consulted a physiotherapist complaining of headaches which had been increasing in intensity, dizziness, having difficulty walking due to pain and severe pain in the neck. The physiotherapist applied traction, passive flexion and acupuncture.

(l) On the evening of 24 September 2008, the appellant was suffering severe pain in her neck and was taken by ambulance to the Cairns Base Hospital where she was diagnosed with a possible early chest infection and discharged home.

(m) On 25 September 2008, the appellant's mother drove the appellant to the respondent's rooms where the respondent was unable to obtain a history from the appellant. The appellant's mother reported the appellant had been taken by ambulance to hospital the previous evening, her pain was now worsening, she was feeling very weak, and she was having difficulty transferring from the toilet. The respondent referred the appellant to the Cairns Private Hospital.

(n) On 26 September 2008, the appellant was found to be suffering from profound deafness, both pupils were sluggish, and her neck was bilaterally swollen. A subsequent review revealed facial weakness and decreased reflexes and power. Later that day, the appellant underwent a lumbar puncture which was positive for cryptococcal infection.

(o) As a consequence of the cryptococcal infection, the appellant has been left with sensorineural hearing loss, cortical blindness, sensory loss and impaired balance. She has also developed an adjustment disorder.

(p) The appellant's injuries were occasioned by the respondent's negligence and/or breach of contract. Several particulars were relied upon. The issue at trial was not that the respondent failed to diagnose the presence of cryptococcal meningitis. The issue was that the respondent failed to properly conduct an examination of the appellant, failed to recognise symptoms of her condition and failed to appropriately refer the appellant for specialist assessment or to her local hospital for further assessment.

(a) admitted the appellant consulted her on the dates pleaded in September 2008 but denied she had consulted her in June 2008;

(b) admitted in the consultations in September 2008 the appellant had complained of intermittent neck pain for an extended period which had become worse over the last six weeks and which was intermittently associated with headaches and flushing to the face;

(c) said the appellant also advised chiropractic treatment provided some relief, and an x-ray had reported a loss of normal curvature. The appellant reported she had not had any head injury, or visual disturbance or neurological deficits such as speech or hearing difficulties or weakness;

(d) said at the times the appellant consulted her in September 2008 (except for on the last occasion) the appellant walked normally, did not appear distressed and interacted and spoke normally. Whilst the respondent observed a reduced range of movement in the appellant's neck, the appellant did not complain of such difficulties to the respondent;

(e) denied she had been negligent and said even if she had referred the appellant at an earlier time diagnosis and commencement of the necessary treatment would not have occurred any earlier as the appellant's condition on presentation up until 25 September 2008 meant it would be several days before a diagnosis of cryptococcal meningitis could have been made;

(f) pleaded her conduct was consistent with widely accepted practice by professional peer opinion such that there was no breach of duty by reason of s 22 of the Act.

[104] The appellant gave evidence she had previously consulted the respondent in 2007 for unrelated medical issues. She next consulted the respondent in June 2008, complaining of rushes of blood to the head and dizzy spells. The respondent advised the symptoms were probably the beginning of menopause and recommended the appellant undergo a mammogram which was then overdue.

[105] The rushes of blood and dizziness did not cease and by September 2008 the appellant had also developed an extremely sore neck and was experiencing headaches periodically. She consulted a chiropractor on 5 September 2008, and again on 8 and 11 September 2008. At the two latter consultations, manipulation was performed on her spine and pelvis. Neither improved her symptoms.

[106] The appellant said on 12 September 2008 she consulted the respondent complaining of worsening neck pain over the past six weeks. She informed the respondent she had consulted a chiropractor on a number of occasions, and an x-ray had shown loss of the normal curvature of her lumbar spine. The appellant also told the respondent she was having rushes of blood to the head and dizzy spells, and was occasionally losing strength in her right leg. The appellant said by the time of this consultation she was turning her upper body rather than moving her neck, although her neck movement was "still relatively good".

[107] The appellant consulted her chiropractor later that day who performed a manipulation on her spine and pelvis. The next day, 13 September 2008, she attended the Cairns Amateurs Racing Carnival. On the following Monday, 15 September 2008, the appellant re-presented to the chiropractor complaining of a continuing sore neck. He again performed manipulation of her spine and pelvis. The appellant represented to the chiropractor on 17 September 2008 complaining of continuing sore neck and headaches. The appellant said she told the chiropractor her leg was collapsing on occasion. She also told the chiropractor things were extremely bad and it had all increased substantially.

[108] By the time of her consultation with the respondent on 18 September 2008, the appellant said her symptoms of neck pain had increased immensely. Walking caused pain to her neck and head, and she walked slower than normal when entering the consultation room. The appellant said she told the respondent her symptoms had increased immensely and were a lot stronger. The rushes of blood and dizzy spells were increasing, and she was losing strength in her right leg. She also was experiencing severe pain in her neck, particularly at the base of her head. She reported suffering nausea, and said she had vomited several times. The appellant said she was not in a condition where she could drive safely, was unable to work, and was struggling at home due to the pain. The respondent did not perform any physical examination but referred the appellant for a CT scan. She also wrote a prescription for stronger pain medication and anti-nausea medication.

[109] The appellant re-presented to the respondent on 19 September 2008, after having the CT scan on the afternoon of 18 September 2008. She was accompanied by her mother. The appellant said she was unable to drive herself to the consultation. Her mother walked with her into the consultation room as she was struggling with walking, losing strength in her right leg on a regular basis. The pain in her neck and head were "incredible". She told the respondent her mother had come to look after her. The respondent did not perform a physical examination and prescribed further medication. She also gave the appellant a medical certificate for one week.

[110] The appellant said her symptoms worsened in the days following the consultation on 19 September 2008. The pain increased in intensity, and she suffered a deteriorating loss of strength in her legs. By 23 September 2008, the appellant required assistance toileting, showering and when walking anywhere. Both her legs did not have much strength, although the right leg was worse with excruciating pain when she stood on it. She felt dizzy every time she stood up. The pain in her neck and head was worst at the base of the skull. There was pain all over the body.

[111] On 23 September 2008, the appellant consulted a physiotherapist. Her mother drove her to this consultation, completed the patient information form, and assisted her into the consultation room. The appellant said she had difficulty getting up the stairs because of a lack of strength in her legs, and needed her mother's assistance to get on the consultation bed. The appellant's recollection was she told the physiotherapist she was experiencing rushes of blood to the head, dizziness, loss of strength in the right leg and excruciating pain in her neck and the base of her head. She did not recall telling him she could not walk.

[112] The appellant's mother contacted the Queensland Ambulance Service late in the afternoon of 24 September 2008. The appellant reported she was suffering from severe neck pain. The medication prescribed by the respondent had had little effect on her pain levels, and physiotherapy treatment performed the previous day had also had little effect on her symptoms. The appellant could not recall what she told the ambulance officers, but said her pain level when the ambulance arrived was "excruciating". She described extreme pain in her neck, and base of her head which radiated throughout her body. She did not have a problem with light.

[113] The appellant was conveyed to the Cairns Base Hospital. The assessing nurse recorded a complaint of chronic neck pain for several months which had worsened over the past week. When reviewed by a resident medical officer, the appellant reported suffering from increasing neck pain since July 2008. She felt she could not walk due to her neck pain. The appellant's memory of the consultation with the doctor at the hospital was "definitely fuzzy". In evidence-in-chief, she said she told the doctor her sight was blurry and her hearing was not good. In cross-examination, she could not remember the conversation with the doctor.

[114] The appellant gave evidence that on the following day, 25 September 2008, her condition deteriorated further. She started to lose her peripheral sight and there was a deterioration in her hearing. Her pain continued to go up. She could not walk at all, although she reported she also could not walk the day before. The appellant's mother took her to the respondent's rooms. The appellant had no memory of events at this consultation.

[115] The respondent gave evidence that on 18 September 2008 the appellant did not report her symptoms had deteriorated, or that her neck pain was severe. The appellant reported her neck was still painful. The appellant also did not say anything about a headache, did not report flushing to the face, and did not report nausea and vomiting. The respondent's notes recorded the symptoms as "neck remains painful, getting dizziness, reduced ROM (range of movement)".

[116] The respondent said when the appellant attended on 18 September 2008 she observed her walking normally to the consultation room. The respondent accepted the appellant complained of ongoing neck pain but did not accept the appellant's symptoms were worse than at the consultation on 12 September 2008. The respondent accepted the appellant had reduced range of movement and complained of dizziness but said the appellant did not complain of headaches or nausea or vomiting. The respondent did not ask about any ongoing flushing to the face. The respondent requested a CT of the spine and prescribed medication. The appellant was asked to return for review once the CT had been undertaken.

[117] The respondent said the appellant attended the consultation on 19 September 2008 alone. The respondent followed her usual practice of walking the patient from reception to the consultation room and observed the appellant was unchanged from the day before. There was also no change in the appellant's ability to communicate and interact. The appellant said nothing to her about headaches.

[118] The respondent gave evidence that when the appellant next presented on 25 September 2008, she observed the appellant had changed significantly from when last seen on 19 September 2008. The appellant appeared to be in pain and was a bit drowsy. The appellant's mother was talking for her and reported the appellant had ringing in her ears, apparently impairing her hearing. The respondent agreed ringing in the ears was a significant complaint, but accepted she had made no note of it in her clinical notes. By that stage her main focus was finding a bed for the appellant. The respondent's notes recorded worsening pain and feeling very weak.

[119] The appellant's mother gave evidence the appellant had serious pains in her neck and her head on 18 September 2008 and wanted her to stay with her to help. She found the appellant obviously unwell when she attended her house on the morning of 19 September 2008. The appellant had serious pains in her neck and head, and was unable to do anything except get out of bed and go to the toilet. The appellant's mother said she accompanied the appellant into and out of the consultation room on 19 September 2008. On each occasion, their arms were linked because the appellant was unsteady on her feet. The appellant told the respondent she was losing strength in her right leg, which was giving way, and she was still suffering dizzy turns, rushes of blood to the head, headaches and neck ache.

[120] The appellant's mother said the appellant's condition deteriorated further between 19 and 23 September 2008. The appellant's ability to walk worsened, and the pains in her neck and head became so extreme she was not getting much sleep. On 24 September 2008, the appellant's pain in her neck was so severe, she was concerned it was "getting a lot worse". She contacted the respondent's medical practice but was advised the respondent was not working that day. A subsequent telephone call led to the receptionist suggesting she should, if concerned, arrange for an ambulance to transport the appellant to hospital.

[121] The appellant's mother gave evidence she called an ambulance on the evening of 24 September 2008. By that time, the appellant's hearing was affected and it was necessary for the mother to loudly repeat the questions from the medical staff. The appellant told the doctor she had had blood rushes to the head from back in June, she was getting worse, and she had been to a chiropractor and a physiotherapist. There was also a discussion about serious pain in the neck and head, the loss of an ability to walk, the loss of her hearing and that she was losing her sight.

[122] The appellant's mother said she telephoned the respondent's rooms on 25 September 2008 and advised the appellant had been taken to hospital the previous night. She was advised to bring the appellant to the consultation room. When the appellant was seen by the respondent, the appellant's mother reported the appellant's neck pain was worsening, she was feeling very weak, and she was having difficulty transferring to the toilet safely. The appellant also had loud ringing in her ears. The appellant's mother requested admission to a private hospital. The respondent referred the appellant to the Cairns Private Hospital.

[123] The chiropractor, Dennis Collis, gave evidence he had no independent recollection of the appellant. However, from his notes, the appellant had attended his practice for the first time on 5 September 2008. At that time, she reported some discomfort at the base of the skull and felt she was losing strength. His notes recorded her major complaints as neck pain, headaches and shoulders with the onset being in early July 2008. These symptoms were said to be constant. She also reported numbness or tingling in the right hand. Examination revealed tenderness on palpation of her spine. There was also irritation. Traction on the cervical spine, by manipulating the back of the head forward, caused pain.[78] There was also a loss of range of motion in her flexion. Mr Collis performed an x-ray at that consultation.

[124] Mr Collis next saw the appellant on 8 September 2008. He explained the findings on the x-ray, and performed manipulation on her spine. The appellant re-presented on 12 September 2008 when manipulation was again performed on her spine. The appellant re-presented on 15 and 17 September 2008. At each of those consultations, the appellant continued to complain of soreness and headache. He doubted he had referred the appellant to a doctor as he saw the appellant as a routine case of someone with a chronic neck problem. He agreed the appellant had specifically complained of headache on 17 September 2008 but said there was no complaint on 15 September 2008. When the appellant completed his questionnaire, she had ticked the areas of neck pain, shoulder pain, headache and migraine but had not ticked dizziness. She made no complaint of difficulty with walking to him, and made no complaint of nausea.

[125] The physiotherapist, Timothy Elsmore, also had little recollection of his consultation with the appellant other than that he recalled a distressed woman at the consultation on 23 September 2008. The appellant reported pain from the base of her skull down through her back, with increasing pain the previous two months and a prior history of headaches. He observed the appellant was protecting movement. He applied traction, passive flexion and acupuncture and recommended the appellant wear a cervical collar. He did not recall the appellant responding unusually. If there had been an adverse response to the manipulation or application of force to the neck, he would have made a note. If the appellant had reported experiencing problems with balance, he probably would also have noted that fact. He accepted it was probable she reported an increase in headaches.

[126] The ambulance officer, Paul Elliott, gave evidence there was no complaint of problems with the appellant's hearing, vision or aversion to light when he transported the appellant on the evening of 24 September 2008. The ambulance notes recorded the appellant's complaint as cervical spine pain, with a past history of headache for the past couple of months and severe pain to the cervical area of the neck for the past week with little effect of prescribed medication and physiotherapist treatment. There was no complaint about nausea. The ambulance officers would have been careful to enquire whether the appellant had experienced nausea or vomiting as morphine was administered to the appellant. The appellant's temperature was normal.

[127] Dr Miller, a resident medical officer at the Cairns Base Hospital, reviewed the appellant when she arrived by ambulance on the evening of 24 September 2008. He had no independent recollection of treating the appellant. His notes recorded his main concern was she was "over drugged". He formed the impression the appellant was drowsy, secondary to her medications, and her increased pain was due to not mobilising and she needed a chronic pain opinion as an outpatient. Dr Miller agreed headache and neck stiffness were two cardinal signs of meningitis, and he would have been keen to exclude a diagnosis of some form of meningitis had the appellant's history of worsening neck pain been accompanied by severe headaches, neck stiffness, nausea and dizziness. He did not detect such symptoms. He accepted his notes did not record performance of a physical examination of the appellant's range of movement in her spine but said he undertook a neurological examination. Although the appellant's temperature was normal, blood test results revealed a raised white cell count. The appellant was diagnosed with a possibly very early chest infection, and discharged home with medication.

[128] Dr Vinen, an emergency medicine specialist, opined the respondent's conduct at the consultations on 18 and 19 September 2008 was not appropriate as it was insufficient to make a diagnosis on the patient's history and the general practitioner's observation of the patient's movement. A physical examination should occur. Dr Vinen also opined a general practitioner, in assessing a patient, should assume the worst and diagnose by exclusion.

[129] Dr Turnbull, a general practitioner of many years experience, also opined that conducting a physical examination of a patient complaining of neck pain is appropriate. However, he accepted a physical examination may not be necessary in each case because there are wide variations in respect of complaints of neck pain. The general practitioner's observations of the patient's movements, including the patient's gait, are important. Dr Turnbull accepted his initial opinion that the respondent ought to have performed a physical examination on the appellant was premised on the appellant's stated presentation at the consultations, including a marked decline in her symptoms by the time of the consultations on 18 and 19 September 2008. If the appellant's presentation had been as stated by the respondent, Dr Turnbull opined the respondent's management of the appellant was consistent with a reasonable standard of general practice.

[130] Dr Kable, also an experienced general practitioner, opined a reasonable standard of general practice did not require a full physical examination to occur in respect of a patient complaining of neck pain. Examination by observation, in the context of obtaining a complete history, may suffice. Relevant factors in determining whether to undertake a physical assessment include the general practitioner's assessment of the severity of the presenting symptoms, and the observations of the patient's ability to move. Neck stiffness from meningitis had a particular presentation. The patient would be virtually incapable of moving the neck forward. Dr Kable contrasted that form of neck stiffness from a loss of range of movement as a consequence of cervical spondylosis. In the latter case, movement in any direction causes discomfort but does not produce specific resistance to movement of the neck forward. If a patient presented with the head in a rigid position and refused to move the head forward that would be a sign of possible meningitis. On such a presentation, a general practitioner ought to examine for neck stiffness by attempting to flex the neck forward pointing the chin towards the chest. On the basis of the symptoms recorded in the respondent's notes, Dr Kable opined none of the consultations of 12, 18 or 19 September gave rise to a need to perform a specific test for neck stiffness.

[131] Dr Eisen, an infectious diseases expert, opined the symptoms complained of by the appellant on 12, 18, 19 and 24 September were all consistent with a diagnosis of cryptococcal meningitis. The classic symptoms of that condition are chronic headache and neck stiffness. If the appellant's version of her symptoms is accepted, the respondent ought to have referred her for specialist assessment on 19 September 2008. Such a condition was more likely to be due to a neurological condition rather than cervical spondylosis. Had the appellant been referred on 19 September 2008, her prospects of a better outcome were significant. If appropriate treatment had been commenced soon after 19 September 2008, her probability of avoiding vision and hearing loss was greater than 50 per cent.

[132] Dr Whitby, an infectious diseases specialist, opined that neck stiffness caused by meningitis does not merely result in a painful neck on movement. It produces a resistance to movement. Dr Whitby further opined that if the appellant's version of her symptoms was accepted, the respondent ought to have referred the appellant for specialist referral on 19 September 2008. By that time, the respondent had been suffering severe headache and neck pain for some time with no sufficient cause being shown for those continuing symptoms. However, if the respondent's version of the symptoms was accepted, there was no reason for the respondent to refer the appellant for specialist assessment on 18 or 19 September 2008. Cryptococcal meningitis is a difficult condition to diagnose and treat, and the appellant had presented with a significant past history of cervical spine damage. If specialist referral had resulted in treatment being commenced on or soon after 19 September 2008, the appellant would have had a better outcome. It is more likely than not she would not have suffered the significant hearing and visual loss.

[133] Dr Cameron, a specialist neurologist, opined that if blood tests had been undertaken on the appellant on 18 or 19 September 2008 they more probably than not have revealed an increased white blood cell count. Further, if the appellant's version of her symptoms is accepted, it would have been prudent to refer the appellant to a specialist neurologist, or her local hospital if no neurologist was readily available. It would also have been prudent to order blood tests at that time. However, if the respondent's version of the symptoms is accepted, referral to a neurologist or to a local hospital was not warranted on 18 or 19 September 2008. Those presenting symptoms, in the context of degenerative changes of the spine shown on CT investigation, were consistent with symptoms of cervical spondylosis.

[134] The trial judge found it was unnecessary to resolve the differences in the account given by the appellant and the respondent in respect of the consultations in June 2008 as there was no suggestion any complaints at that time were relevant to the development of cryptococcal meningitis in September 2008. Resolution of the proceeding turned to a large extent upon what symptoms the appellant told the respondent she had, and what symptoms the respondent should have detected, in her consultations with the appellant on 12, 18 and 19 September 2008.

[135] Central to this conflict was the appellant's presentation and the likely findings on examination at the consultations on 18 or 19 September 2008. The issue was not whether the respondent neglected to have diagnosed cryptococcal meningitis, it was whether she ought to have referred the respondent to a specialist or the local hospital. What the respondent knew or should have known about the appellant's symptoms necessarily informed whether the respondent, exercising the reasonable care and skill of a general practitioner, should have referred the appellant for specialist assessment on 18 or 19 September 2008.

[136] The trial judge found the consultation with the chiropractor on 5 September 2008, wherein the appellant's major complaint was recorded as "neck pain, headaches and shoulders" with a note of decreased strength, was unlikely to relate to symptoms of cryptococcal meningitis and were more consistent with neurological irritation around the lumbosacral region of the spine.

[137] In respect of the appellant's consultation with the respondent on 12 September 2008, the trial judge found it was common ground the appellant had reported neck pain worsening over the past six weeks, and that she had consulted a chiropractor who had performed an x-ray of her cervical spine. The trial judge accepted the appellant had complained of experiencing rushes of blood to the head, and of a sore neck and headaches. The trial judge did not accept the appellant complained of losing strength in her right leg at this consultation, or of dizziness and of an extremely sore neck and extremely bad headaches. The trial judge preferred the respondent's version of this consultation, which was that there had been a complaint of intermittent neck pain with headaches occurring with the neck pain, or from the neck pain.

[138] The trial judge found it was common ground the appellant had attended the chiropractor on 12 and 15 September 2008 and had manipulation of the spine and pelvis. In respect of the consultation of the chiropractor on 17 September 2008, it was also common ground the appellant had reported a continuing sore neck and headaches. The trial judge did not accept the chiropractor's evidence there was no complaint of headache on 15 September 2008. However, the trial judge did not accept the appellant's evidence she informed the chiropractor on 17 September 2008 things were extremely bad, the pain in her head and neck had increased dramatically, and her leg was collapsing on occasions.

[139] In respect of the consultation with the respondent on 18 September 2008, the trial judge found it was common ground the respondent did not perform a physical examination and referred the appellant for a CT scan. The trial judge accepted the appellant complained of neck pain, including experiencing pain at the base of her head. The trial judge also accepted the appellant's condition at this consultation was worse than at the earlier consultation. The trial judge considered the fact the respondent prescribed stronger analgesia was consistent with a worsening condition, as was the provision of a certificate that she was unfit to work. The respondent's notes referred to a reduced range of movement which also implicitly acknowledged a decline in the appellant's condition relative to her previous presentation. However, the trial judge did not accept the appellant told the respondent her symptoms had increased immensely, or were a lot stronger. The trial judge also did not accept the appellant informed the respondent she was suffering nausea. The trial judge accepted this consultation was the first occasion the appellant mentioned dizziness to the respondent. However, this complaint related to dizziness rather than vertigo.

[140] The trial judge found that given the continuation in the appellant's neck pain and the earlier note that the neck pain was causing headache, the respondent, exercising reasonable care, should have clarified at this consultation whether the appellant's headaches were ongoing. Had she done so, the appellant would have explained she was continuing to experience headaches apparently associated with her neck pain. The respondent exercising reasonable care should also have enquired at this consultation whether the neck pain was causing flushing to the face. Had the respondent done so, it was likely the appellant would have reported her neck pain was still causing flushes to her face.

[141] In respect of the consultation on 19 September 2008, the trial judge noted the appellant did not suggest she reiterated the symptoms she described the previous day. Rather, she emphasised in a general sense her pain and symptoms were growing worse. This version was inconsistent with the version given by her mother who said the appellant told the respondent she was losing the strength in her right leg, was still suffering dizzy turns and blood rushes to the head, and had headaches and neck ache. The trial judge also noted the evidence of the appellant and of her mother as to significant difficulties with walking by this stage were not consistent with the respondent's notes of the consultation which made no reference to any difficulty about leg strength or ability to walk.

[142] The trial judge found that whilst it was likely the appellant's mother was present at the consultation on 19 September 2008 (the respondent said the appellant had attended alone), the appellant and her mother were in error in suggesting that by this time the appellant was having difficulty walking. The trial judge found the loss of leg strength came days later. He also rejected the evidence of the appellant's mother that they walked arm in arm into and out of the consultation on 19 September 2008. The trial judge accepted the appellant did not tell the respondent of any new symptoms, such as hearing or vision being affected, because there were no such symptoms at that time. The appellant also did not say the pain medication prescribed the previous day was not alleviating the pain, and that the pain and symptoms were getting worse.

[143] Whilst the trial judge did not accept the appellant's version as to the severity of her symptoms and their deteriorating nature at the time of her consultations with the respondent on 18 and 19 September 2008, the trial judge found the respondent, by these consultations, knew the appellant had continuing neck pain, a reduced range of movement, and was sometimes experiencing dizziness. She also knew, or ought reasonably to have known had she exercised reasonable care, the appellant was sometimes experiencing headaches and flushing to the face which appeared to be connected with her neck pain. The trial judge did not accept the appellant, on either 18 or 19 September 2008, informed the respondent she was suffering from a raised temperature, aversion to light or nausea or vomiting. The trial judge did not accept the appellant was suffering any of those symptoms at those consultations.

[144] In respect of breach of duty, whilst the trial judge found the respondent's version of the consultations and the symptoms which were present were substantially consistent with the findings of fact, the observation of a visibly reduced range of movement on 18 September 2008 necessitated the respondent, if she was exercising reasonable care and skill, to have physically examined the appellant's neck. However, as the physiotherapist was able to undertake physical manipulation of the appellant's neck without extraordinary reaction on 23 September 2008, it was unlikely a physical examination of the appellant's neck on 18 or 19 September 2008 would have provoked a response suggestive of meningism, or caused the respondent to suspect the presence of a symptom with a cause any more sinister than a musculoskeletal cause. Occasional flushing to the face in association with neck pain was not a symptom reasonably likely to arouse concern as being inconsistent with the presence of a musculoskeletal disorder causing pain.

[145] The trial judge also found the respondent was aware, or exercising reasonable skill and care should have been aware on 18 and 19 September 2008, the appellant was still sometimes experiencing headache associated with neck pain. The trial judge accepted it was important for the respondent to ascertain its location, duration, intensity and frequency but found as the evidence suggested the location of that intermittent headache was predominantly towards the lower back of the head, the presence of such headaches was not suggestive of a cause inconsistent with the suspected musculoskeletal cause. An intermittent headache was also inconsistent with the type of headache associated with cryptococcal meningitis.

[146] The trial judge accepted dizziness, although not a cardinal symptom of cryptococcal meningitis in the same way as neck stiffness or chronic headache, can suggest a problem with the central nervous system. In those circumstances, the respondent, exercising reasonable care and skill, ought to have made enquiries as to the nature and cause of the dizziness. However, the trial judge accepted the respondent had clarified the appellant did not mean vertigo, when referring to dizziness. As dizziness was associated in a broader array of symptoms, particularly neck pain and associated intermittent headache, the trial judge did not accept there was a falling below the requisite standard in the context of the consultations on 18 and 19 September 2008 in respect of the appellant's dizziness. A symptom of dizziness is consistent with the appellant's apparent musculoskeletal problem, and should not have caused the respondent to suspect a more sinister disease involving the central nervous system.

[147] The trial judge concluded that whilst the appellant had neck pain and was suffering occasional headaches on 18 and 19 September 2008, these symptoms fell considerably short of the chronic headache, neck stiffness, nausea and vomiting, aversion to light and raised temperature which are the classical symptoms of cryptococcal meningitis. There was no evidence the appellant had photophobia or raised temperature when seen at those consultations, or when seen at the Cairns Base Hospital on 24 September 2008. Dr Miller checked the appellant on 24 September 2008 for photophobia, and the appellant did not have it.

[148] The trial judge found the appellant did not have an aversion to light when she consulted the respondent on 18 or 19 September 2008. Further, as the appellant did not complain of having a fever, the trial judge did not accept the respondent, exercising reasonable care and skill, ought to have treated the appellant on the basis she would have had a raised temperature had she not taken medication. Having regard to the findings in relation to the appellant's symptoms on 18 and 19 September 2008, the trial judge found the respondent did not, as at 18 or 19 September 2008, have a discernable collection of symptoms which should have caused her, acting with reasonable care and skill, to conclude she should refer the appellant for urgent or specialist assessment.

[149] The trial judge further found even if the appellant, in accordance with her duty to exercise reasonable care and skill, had physically examined the appellant's neck and enquired about the progress of the previously reported symptoms of headache and facial flushing, such examination and enquiry would not have detected anything that would have prompted a different course of action. Accordingly, although the failure to undertake the physical examination, and make such enquiries was a breach of the respondent's duty to exercise reasonable care and skill, the omission did not have a causal connection with the appellant's injury and loss. Further, the respondent did not breach her duty to exercise reasonable care and skill in not recognising a potentially serious disease of the central nervous system may have been developing, and in not referring the appellant to a neurologist, general physician or emergency department for urgent specialist assessment.

[150] The trial judge also found s 22 of the Act provided a defence in any event. In reaching this conclusion, the trial judge accepted the opinions expressed by the two experienced general practitioners, Dr Turnbull and Dr Kable, that the respondent's actions were reasonable and amounted to competent and comprehensive care of a standard expected of a general practitioner. The trial judge found that on the whole of the evidence, at the time of the consultations on 18 and 19 September 2008, the respondent acted in a way widely accepted by peer professional opinion by a significant number of respected practitioners in the field, as competent professional practice.

[151] Whilst it was unnecessary to do so, having regard to the finding of no breach of duty, the trial judge considered the question of causation. The trial judge found the two critical questions were whether referral on or about 19 September 2008 would have likely resulted in timely diagnosis and treatment for cryptococcal meningitis, and whether, if treatment had commenced on or soon after 19 September 2008, the permanent damage to health suffered by the appellant would have been avoided.

[152] The trial judge found it was "certainly not obvious" a referral on about 19 September 2008 would have resulted in a timely diagnosis and treatment for cryptococcal meningitis. Those symptoms did not "cry out" for urgent attention, in the same way symptoms becoming acute from cranial nerve infection later may have. The appellant's symptoms as at 19 September 2008, even if sufficiently concerning to warrant a referral, were inherently unlikely to have given rise to a referral to the emergency section of a hospital, as distinct from a neurologist or specialist physician. It is also unlikely the referral would have commanded urgent attention in the emergency department of a hospital.

[153] The trial judge also found the temporal window of opportunity for the appellant to be diagnosed and treated for cryptococcal meningitis after 18 or 19 September 2008, and avoid permanent damage to her health, was limited. It was likely it was too late by 24 September 2008. The trial judge accepted it may reasonably be inferred the appellant would not have wasted time in arranging and attending upon an appointment once armed with a referral. However, it was doubtful such an appointment would have been arranged for 19 September 2008 or on the ensuing weekend. It would be likely to have occurred by or on Monday, 22 September 2008. The trial judge accepted the looming damaged cranial nerves and the resultant permanent harm was then yet to occur, and could still be prevented if treatment ensued promptly.

[154] The trial judge noted that whilst Dr Cameron considered that if a blood test had been performed on 18 or 19 September it would have shown a heightened white blood cell count, the increased white blood cell count detected by Dr Miller on 24 September 2008 at the Cairns Base Hospital did not prompt a diagnosis of cryptococcal meningitis. Further, Dr Cameron opined that even with a heightened white blood cell count, it would then have been necessary to exclude an infected process. The speed with which that would have been determined was difficult to predict but having regard to the time period before there was a final correct diagnosis at the Cairns Private Hospital, the trial judge concluded cryptococcal meningitis would likely have been diagnosed and treatment commenced by or on Tuesday, 23 September 2008. On the basis of the opinions expressed by Dr Eisen and Dr Whitby in their joint report, that standard treatment would have commenced soon after a diagnosis of cryptococcal meningitis and more likely than not would have prevented the appellant from suffering her permanent disability, it is likely if treatment was commenced before or on 23 September 2008 the appellant would not have suffered the permanent injuries to her health.

[155] The appellant submits the trial judge's finding that the respondent's failure to examine the appellant's neck was not of any causative significance, was premised on findings of fact not supported by the evidence. First, the finding the appellant's symptoms had not worsened when she presented on 18 and 19 September 2008 was contrary to the evidence. A complaint of dizziness was made for the first time, four medications were prescribed over a two day period, including panadeine forte, a certificate of unfitness to work was given, and the attendance of the appellant's mother and the appellant's re-presentation on 18 and 19 September were all strongly suggestive of a worsening of her condition.

[156] Second, the finding was premised on a finding of fact that the appellant's neck was manipulated without resistance on 17 September 2008 when there was no evidence from the chiropractor that the manipulation occurred without resistance. Further, the chiropractor gave evidence that on 5 September 2008 the appellant's range of movement was reduced, and she had pain on flexion.

[157] Third, the trial judge's finding was premised on a finding that physical manipulation of the appellant's neck by the physiotherapist was able to occur without an extraordinary reaction or a severe reaction when the physiotherapist's evidence was the appellant was distressed at the consultation, was protective of movement in her cervical spine, and was not moving her neck very much at all. Further, it was never put to the appellant that her pain did not increase as a consequence of the application of what was described as gentle traction. Dr Cameron found it difficult to make much of these examination findings, and Dr Whitby conceded if the appellant was observed without physical examination to have neck stiffness on 18 September 2008, that was consistent with her not being able to actively move her neck which would be consistent with cryptococcal meningitis.

[158] Finally, the trial judge's finding was premised on a finding of fact that there was no evidence of the appellant being observed to hold her neck stiffly or without movement. Dr Eisen gave evidence to the effect a reduced range of movement of the neck is neck stiffness. The chiropractor gave evidence the appellant had a reduced range of movement in her neck, including reduced flexion on 5 September 2008. The respondent gave evidence when she saw the appellant on 18 September 2008 she had some reduced range of movement, and her posture was different from the previous consultation in terms of her head movement, which could be explained by stiffness, and the appellant had an observable stiff neck. The physiotherapist gave evidence of guarded movement of the appellant's neck on 23 September 2008. Dr Whitby conceded in his report dated 13 August 2012 the appellant was suffering from neck stiffness.

[159] The appellant further submitted the trial judge's finding that the respondent's failure to make further enquiry about the progress of the appellant's past reported symptoms of headache and facial flushing would not have prompted a different course was against the weight of the evidence. The appellant's specific complaint, when treated by the chiropractor on 17 September 2008, was of headache at the bottom of the scalp and, when treated by the physiotherapist on 23 September 2008, was of increasing headaches. There was a history of headache noted by the ambulance officers on 24 September 2008. Dr Whitby opined if the appellant had complained of headache both before and after the consultation with the respondent on 18 and 19 September 2008 she also would have had headaches on the occasion of those consultations. Proper enquiry would have resulted in the respondent ascertaining it was not an intermittent but a constant headache, concentrated in the base of the skull that was getting worse. That information, combined with the other presenting symptoms, ought to have caused the respondent to consider and exclude a central nervous system disorder.

[160] The trial judge's finding that enquiries by the appellant about further flushing to the face would have resulted in an affirmative answer misapprehended the role of the respondent as the appellant's treating doctor. The respondent's responsibility was to elicit a detailed history of symptoms in an attempt to ascertain a cause by a process of elimination. The respondent acknowledged facial flushing was unlikely to be caused by cervical spondylosis. Further discussion of this symptom on 18 and/or 19 September 2008 must have inevitably led the respondent on a different line of enquiry.

[161] The appellant submits that had the respondent performed in accordance with her duty to exercise reasonable care and skill, she would have physically examined the appellant on 18 or 19 September 2008 and ascertained she had a stiff neck, had constant and increasing headaches, and had continuing facial flushing, a symptom which did not have a musculoskeletal cause. These enquiries would have led the respondent to conclude the appellant was presenting with some of the cardinal symptoms of meningitis, prompting immediate referral to a specialist facility. Had that course been adopted it is likely the appellant would not have suffered the permanent injuries to her health.

[162] Finally, the appellant submitted the trial judge's finding the respondent had acted in a way that was widely accepted, by peer professional opinion by a significant number of respected practitioners in the field, as competent professional practice was materially affected by the errors of fact that the appellant did not have a stiff neck and was not suffering from a constant headache. A finding which did not include these material errors, would have led to a conclusion the evidence did not support the operation of s 22 of the Act.

[163] The respondent submitted there is a difference between neck pain and neck stiffness suggestive of meningeal irritation. The expert evidence of Dr Kable was that neck stiffness from meningitis has an acute onset, and manifests in the patient being virtually unable to move the neck and causes the patient to protect the neck by holding the head in a rigid position. The reduced range of movement noted by the respondent on 18 September 2008 was not indicative of meningeal irritation. It implied there was some movement. Further, neck stiffness is a late sign in the course of meningitis, and the patient by that stage is very sick and very unwell.

[164] Dr Whitby also gave evidence that neck stiffness caused by meningitis is a result of it being too painful to move the neck at all, and the patient resists movement. A patient who can move the neck forward actively or passively is not considered as presenting consistently with meningitism. In this respect, the evidence of Mr Elmore was important. Whilst his evidence was that the appellant was protecting movement, he applied traction force to the appellant's neck to which the appellant seemed to respond reasonably well. Had there been an adverse response he would have noted it. He had made no such note. Dr Cameron opined that a patient who could tolerate flexion and neck traction with meningeal irritation would have an odd response. A therapist would not have been able to manipulate that patient's neck without complaint. Dr Whitby also opined if a physiotherapist could manipulate the appellant's neck without significant pain, the appellant did not have neck stiffness from meningitis.

[165] The respondent also relies on the evidence of the chiropractor, who performed manipulations on the appellant's neck without any adverse responses on 12, 15 and 17 September 2008, the evidence of the respondent that the appellant did not report neck stiffness to the respondent on 18 September 2008, and the evidence that the appellant did not have neck stiffness when examined by Dr Miller on 24 September 2008. That evidence, together with the evidence of the physiotherapist and the expert witnesses amply supported the trial judge's finding a physical examination by the respondent on 18 or 19 September 2008 would not have elicited neck stiffness suggestive of meningeal irritation, and would not therefore have led to a different outcome.

[166] The respondent further submitted the trial judge erred in finding the respondent did not exercise reasonable care and skill by failing to conduct a physical examination of the appellant's neck on 18 and 19 September 2008. The exercise of reasonable care and skill by the respondent did not require such an examination. Both Dr Kable and Dr Turnbull, the expert general practitioners, considered on the respondent's version of the consultations, the appellant's consultations on those dates were consistent with a reasonable standard of general practice, notwithstanding a failure to physically examine the neck. Both Dr Whitby and Dr Eisen also considered the respondent had exercised the reasonable care and skill to be expected of a general practitioner in these consultations. Further, Dr Cameron opined it was reasonable for the respondent to conclude on 19 September 2008 the appellant's symptoms were related to degenerative changes.

[167] The respondent further submitted the trial judge correctly found there was no causal link between the appellant's injuries, and the respondent's failure to enquire about the past symptoms of headache and facial flushing. The presence of an intermittent headache located towards the lower back of the head was inconsistent with the type of headache associated with cryptococcal meningitis. Further enquiry by the respondent would merely have confirmed the appellant was still experiencing headaches, apparently associated with her neck pain, a symptom consistent with a musculoskeletal cause. Enquiry in respect of facial flushing would not have aroused concern as being inconsistent with the presence of a musculoskeletal disorder causing pain. Further, enquiring into these symptoms would not have prompted a different course than that taken by the respondent.

[168] The respondent further submits the trial judge erred in finding referral by the respondent on or about 19 September 2008 would have likely resulted in diagnosis and treatment of the appellant for cryptococcal meningitis by or on 23 September 2008. The available evidence suggested no more than a possibility that successful treatment and diagnosis could have occurred, and there was no reliable evidence to found a conclusion the appellant would have arranged and attended upon an appointment with a suitably qualified physician by 22 September 2008, and that the condition would have been diagnosed and treatment commenced within a day of that consultation.

[169] Finally, the respondent submitted the trial judge's finding in respect of s 22 of the Act was open on the evidence. Dr Turnbull and Dr Kable recognised that on the respondent's version the respondent had not made the physical examination, and not undertaken the further questions, yet both opined the respondent had acted "in a way widely accepted by relevant peer professional opinion". The trial judge correctly rejected an assertion s 22(5) did not apply in the circumstances.

[170] It was common ground at trial, and on appeal, that the catastrophic consequences of the appellant's illness were irreversible by the time she was diagnosed on 26 September 2008, and probably by the time of her attendance at the Cairns Base Hospital on 24 September 2008. The central focus on appeal was whether the appellant ought to have been referred for specialist assessment by the respondent at the time of her consultations on 18 or 19 September 2008, and whether such a referral would have led to a diagnosis and commencement of treatment before the onset of the appellant's catastrophic injuries.

[171] These two issues must be considered against the background of specific findings of fact made by the trial judge in respect of the appellant's presentation at the consultations on 18 and 19 September 2008, and as to the history of symptoms given at that time. Those findings involved a rejection of the evidence of both the appellant and her mother as to the severity of her presentation at those consultations, and as to the symptoms complained of by the appellant. In making those findings, the trial judge had the advantage of seeing the witnesses.[79] Those findings were consistent with the collateral material, including the respondent's contemporaneously made notations of the consultation, and all of the surrounding circumstances. The appellant did not contend those findings were so glaringly improbable that they ought to be set aside in accordance with applicable principles.

[172] However, the appellant contends the findings of the trial judge as to the likely outcome of those consultations, had the respondent not breached her duty of care, were against the weight of the evidence. Those findings were twofold. First, that a physical examination of the neck would have made no difference to the respondent's opinion,[80] as she would not have detected neck stiffness suggestive of meningeal irritation and such an examination would not have caused her to suspect the presence of a symptom with a cause any more sinister than a musculoskeletal cause.[81] Second, that enquiries as to the location, duration, intensity and frequency of the headache were not likely to have provided any significant revelations as the location of the appellant's intermittent headache was predominately towards the lower back of the head, consistent with its reported association with the appellant's neck pain and not suggestive of a cause inconsistent with the suspected musculoskeletal cause,[82] and an intermittent headache is inconsistent with the type of headache associated with cryptococcal meningitis.[83] It is these findings that supported the ultimate conclusion the respondent's omissions did not have a causal connection with the appellant's injury and loss.[84]

[173] In considering whether the first of those findings was open on the evidence, it is of significance that the respondent gave evidence the appellant had observable neck stiffness "in terms of her head movement and posture" at the consultation on 18 September 2008.[85] Whilst not marked, it was different from 12 September 2008. Her observation was the appellant's head movement from the neck was restricted "in terms of her animation".[86] There was restriction in the fluidity of her movement in that she moved her entire upper body when she moved her head.[87]

[174] The trial judge's later observation that no-one gave evidence of observing the appellant holding her neck stiffly or without movement[88] was inconsistent with the acceptance of the respondent's evidence of neck movement restriction on 18 September 2008. That observation was also inconsistent with the evidence of Mr Elsmore. His recollection of the appearance of the appellant at the consultation, albeit on 23 September 2008, was of a distressed woman.[89] He interpreted his notes as indicating stiffness, with the major concern on the day being a neck problem as opposed to a headache. His observation was that she was protecting of movement; "she just wasn't moving her neck very much at all".[90]

[175] The observation that no-one gave evidence of the appellant holding her neck stiffly or without movement, was a key consideration in the conclusion that had the respondent physically examined the appellant on 18 or 19 September, she would not have detected neck stiffness suggestive of meningeal irritation. That observation was contrary to the evidence accepted by the trial judge. However, the respondent contended the trial judge's conclusion as to the likely outcome of any physical examination on 18 or 19 September 2008, was supported by the evidence of health professionals subsequent to 19 September 2008. That evidence came from two sources. First, the physiotherapist's observations on 23 September 2008. Second, Dr Miller's observations on 24 September 2008.

[176] The respondent placed great weight on Mr Elsmore's evidence that the appellant was able to withstand traction without adverse effect, contending this was inconsistent with neck stiffness due to cryptococcal meningitis. However, the traction applied did not involve either active or passive chin to chest movement, the classic test for the presence of the disease. Mr Elsmore described the treatment as "traction with passive flexion so that is when the patient lies on her back and we provide a traction force to the neck". This process involved placing his fingers under the patient's chin and rolling his forearm back so as to apply traction force when the patient is lying there. It applies a gentle force only for about five seconds.

[177] Dr Miller also did not test the appellant's chin on chest movement. He did not perform any physical examination of her neck, despite the appellant presenting complaining of increasing neck pain and dizziness. Dr Miller made enquiries as to numbness or reduced power or sensation, both of which were said not to be present. His primary concern was whether the appellant was over-drugged due to her medication. His evidence was not definitive as to the presence or absence of neck stiffness at that time.

[178] The respondent also relied on the observations of the chiropractor. The trial judge found it of significance the appellant's neck was able to be manipulated without reported resistance by the chiropractor on 17 September 2008. However, the evidence of the chiropractor was that when the appellant presented on 17 September 2008 she reported she was still sore and suffering a headache. The complaint of headache was noteworthy enough to specifically record. No complaint of headache was made two days earlier. Significantly, on her initial presentation on 5 September 2008 there was pain when he moved the back of the appellant's head forward.[91]

[179] Had the respondent performed the physical examination in accordance with her duty of care, it would have included testing for chin on chest movement. It is likely it would have revealed significant neck restriction. The appellant had cryptococcal meningitis by this stage. The procedure undertaken by the physiotherapist, involving a movement allowing the head to go back, produced the observation the neck was not moving very much at all. That was significant, particularly in the context of a recollection of a distressed woman.

[180] The expert evidence was not contrary to such a conclusion. Whilst the trial judge referred to the evidence of Dr Whitby that pain and resistance to movement, if due to the presence of meningitis, will be present no matter how you test it,[92] Dr Whitby had given that evidence in response to a question which asked him to assume the physiotherapist had performed traction and passive flexion with good response at the consultation on 23 September 2008. Dr Whitby's response, on that basis, was if the physiotherapist felt there was reasonable movement, that would not be consistent with significant inflammation in the coverings around the brain and would suggest that sign was not there.[93] Dr Whitby agreed in cross-examination the test would depend on a number of circumstances. Further, it was movement of the neck forward, either actively or passively, which was not consistent with the presence of meningitis. Neither the physiotherapist nor the chiropractor gave evidence that either of them subjected the appellant to a chin on chest movement.[94]

[181] The importance of the nature of the test was expressly acknowledged by Dr Cameron when he opined a patient who could tolerate neck flexion and neck traction with meningeal irritation would be an odd response.[95] Dr Cameron noted if the appellant was in a position where her legs were flexed she may have been able to tolerate some flexion even though she was distressed, whereas if her legs were straightened she probably would not have been able to tolerate the process.[96]

[182] Contrary to the conclusion of the trial judge that no-one gave evidence there was no observable neck stiffness or lack of movement prior to 25 September 2008, there was evidence the appellant had an observable restricted range of movement of the neck by 18 September 2008. Having regard to the fact the appellant did have cryptococcal meningitis, the trial judge erred in concluding a physical examination performed on 18 or 19 September 2008 would not have caused the respondent to suspect the presence of a symptom with a cause any more sinister than a musculoskeletal cause.

[183] The physical examination that would have been undertaken at that time would have been performed by a medical practitioner. If carried out in accordance with the medical practitioner's duty to exercise reasonable care and skill, it would have involved testing movement in all directions. That would have included the cardinal test of movement of the chin to the chest. Whilst that test may not have definitively indicated the presence of meningeal infection, it is likely to have revealed difficulty in movement such as to warrant further investigation by means of specialist referral.

[184] This is particularly so having regard to the second breach of duty found by the trial judge. Further enquiries as to the location of the headaches would have revealed the headaches were associated with neck pain. Whilst facial flushing was not of itself a classic symptom of cryptococcal meningitis, headaches associated with neck pain are indicators of the presence of that condition. That the headache was intermittent also did not exclude the diagnosis.[97] Dr Whitby accepted the headache, being in the base of the skull, may be described as a neck ache[98] or as a basal headache.[99] It could also be described as a combination of both in that it could present as either way and could be variable.[100]

[185] That acknowledgement informed the substance of Dr Whitby's answer, relied upon by the trial judge, for the conclusion intermittent headaches were inconsistent with the type of headache associated with cryptococcal meningitis. Whilst Dr Whitby did opine a headache associated with cryptococcal meningitis, once begun, continues and becomes worse, Dr Whitby acknowledged the presentation of the symptoms can be ameliorated to some extent by painkillers, and acknowledged the headache may sometimes be referred to as a neck ache. A consideration of the evidence clearly establishes that throughout this period the appellant was complaining of headaches or neck ache.

[186] That conclusion is not dependent on an acceptance of the appellant's own evidence.[101] Mr Collis expressly noted a complaint of headache on 17 September 2008,[102] the appellant told Mr Elsmore she had been suffering headaches and her pain was increasing on 23 September 2008[103], there was a history of headache noted by the ambulance officers on 24 September 2008 and Dr Whitby considered it likely if the appellant had complained of headache both before and after the consultations with the respondent on 18/19 September 2008, she would also have had headaches on the occasion of those consultations having regard to the fact she did have active cryptococcal meningitis at that time.

[187] The collateral evidence in respect of headaches from Mr Collis, Mr Elsmore and the ambulance officers assumes special significance having regard to the trial judge's finding the appellant was experiencing headaches, something the respondent would have found out had she asked the appellant.[104] The trial judge also accepted there had been a decline in the appellant's condition between 12 September 2008 and 18/19 September 2008.[105] Against that background, there was no basis for the trial judge to conclude further enquiry in relation to the location, duration, frequency and severity of the headaches would not have resulted in responses which led to a change in management, particularly in the context of a physical examination also having been performed to assess all ranges of neck movement.

[188] The trial judge considered the consequence of the two breaches of duty individually. However, they had to be assessed collectively, in the context of what the respondent ought to have done, having reached a conclusion the continuing nature of the appellant's symptoms necessitated undertaking a physical investigation, and further enquiry as to the location, nature and severity of those ongoing symptoms. That context must include that there are other possible explanations for the appellant's ongoing symptoms other than musculoskeletal problems.

[189] The evidence in respect of an observable restriction in the appellant's range of movement and the existence of headaches, in the context of a deteriorating condition, supported a conclusion that if the respondent, exercising reasonable care and skill, had undertaken a physical examination of the appellant's neck and made appropriate enquiries as to the location, duration, frequency and severity of her headaches at the consultations on 18 and 19 September 2008, she would have determined the appellant had restricted neck movement and headaches in a region consistent with the possibility of meningeal infection. Having regard to the evidence that this insidious disease cryptococcal meningitis, with its gravely serious consequences, is more common in the tropical north, such a conclusion ought to have resulted in the respondent referring the appellant for investigation either to a specialist or to her local hospital.

[190] The appellant, when referred for a CT examination, undertook that examination that same day. That fact provided ample basis for the trial judge's conclusion that had a referral been given, the appellant would have acted upon it promptly.

Section 22

[191] Section 22 of the Act provides a defence to a breach of duty if the medical practitioner establishes he or she acted in a way which was widely accepted by peer professional opinion by a significant number of professionals in that field. That defence requires an identification of the particular conduct, and the group of peer opinion supporting that conduct as being widely accepted practice.[106] The onus rests on the respondent to satisfy that defence. Whether the respondent met that onus required a consideration of the respondent's conduct in the context of the presenting symptoms as found by the trial judge.

[192] The trial judge's finding that the respondent's conduct at the consultations on 18 and 19 September 2008 amounted to conduct that was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice was based on an acceptance of the opinions of two experienced general practitioners, Dr Kable and Dr Turnbull, that the respondent's management of the appellant's case was consistent with a reasonable standard of general practice.

[193] However, the opinions of Dr Kable and Dr Turnbull were based on facts consistent with the respondent's version of events. The facts as found by the trial judge were not entirely consistent with the respondent's version of events. They differed in two critical respects. First, the trial judge did not accept the respondent's version that the appellant had not said anything to her on 18 September about a headache. The trial judge found the appellant, in referring to her neck pain, also referred to experiencing pain at the base of her head. Second, the trial judge accepted the reference in the respondent's notes to reduced range of movement implicitly acknowledged some decline in the appellant's condition relevant to her previous presentation on 12 September 2008.

[194] Dr Kable's opinion was expressed on the basis that at the consultation on 18 September 2008, the appellant complained of continuing neck pain and intermittent dizziness and was observed to have a reduced range of movement in the neck. On the basis of those complaints, and the outcome of the CT scan, Dr Kable opined the respondent's conduct was reasonable and at a standard expected of a general practitioner in Queensland. However, that conclusion was proffered in circumstances where Dr Kable expressly said there was no indication on any of the occasions of consultation for the respondent to seek to illicit neck stiffness as the appellant did not have any of the clinical indicators of meningitis.

[195] Dr Kable did not consider what was the appropriate care having regard to the additional aspect of there not only being an observable reduced range of movement but ongoing headaches. The significance of this additional factor was highlighted in Dr Kable's supplementary report. Dr Kable, in response to a specific question as to whether the respondent ought to have, on 12, 18 or 19 September, performed a specific clinical test for neck stiffness, said "there was no indication on any of these three occasions to examine for neck stiffness as patients with meningeal irritation often sit quietly and do not move their head and neck in a fluid and natural way" and additionally would have "other symptoms of meningitis such as severe headache, photophobia, nausea, fever and vomiting". Dr Kable did not consider what would be acceptable medical practice where the patient has re-presented with reduced range of movement, ongoing headaches, albeit intermittently, and a decline in their previous presentation.

[196] Further, Dr Kable gave evidence if the appellant, on 12 September 2008, complained of neck pain with accompanying headaches and flushing to the face, a reasonably prudent general practitioner, when that patient re-presented on 18 September 2008, would check the progress of all three symptoms, namely the neck pain, the headaches and the flushing to the face.[107] He also accepted an observation of reduced range of movement would usually be a concerning observation in the context of the presentation of pain and headache.[108] Those opinions are at odds with a finding the respondent's conduct, on the symptoms as found by the trial judge, was in accordance with the reasonable standard of general practitioners.

[197] Dr Turnbull's opinion that the respondent's management of the case was consistent with a reasonable standard of general practice was dependent upon an acceptance of the respondent's version of the consultations. Dr Turnbull had earlier opined a general practitioner presented with a patient continuing to complain of headache, in addition to documented symptoms of neck pain with an observed reduced range of movement and dizziness, ought to explore the descriptive characteristics of the neck pain and headaches and undertake a physical examination of the neck.[109] The trial judge found the respondent ought to have undertaken those steps had she exercised the reasonable care and skill necessary in the circumstances.

[198] Dr Turnbull did not express the opinion the respondent's management of the case was consistent with a reasonable standard of general practice if regard was had to the symptoms at the time of the consultations on 18 and 19 September 2008, as found by the trial judge. To the contrary, Dr Turnbull said if the appellant's condition had worsened with increased pain, dizziness and reduced range of movement of the spine at the time of the consultation on 18 September 2008, the respondent's management of the case fell below that of a reasonable standard for a general practitioner in Australia.[110] The trial judge found the condition had deteriorated; not only was there a reduced range of movement, there was a complaint of dizziness for the first time, and ongoing headaches.

[199] The trial judge failed to have regard to those symptoms when finding that Dr Kable and Dr Turnbull's opinions were that the respondent's consultation, even without having conducted a physical examination, was consistent with a reasonable standard of general practice.[111] Significantly, both Dr Kable and Dr Turnbull accepted that in the case of headaches, there was a need to obtain a complete history about the nature, location and severity of those headaches.[112]

[200] The other experts had also expressed opinions in relation to the respondent's conduct, although none of those experts were experienced general practitioners. To the extent evidence was given by Professor Eisen and Dr Whitby that the respondent had acted appropriately and reasonably, their opinions were dependent upon an acceptance of the respondent's version of the consultations. No opinion was expressed based on the symptoms as found by the trial judge.

[201] In reaching the conclusion that s 22 was satisfied, the trial judge relied upon the expert opinions expressed by Dr Kable and Dr Turnbull. However, those opinions were not based on the appellant's presentation, as found by the trial judge. Against that background, there was no evidence upon which the trial judge could be satisfied the respondent had discharged her onus under s 22 of the Act.

[202] The appellant also contended s 22(5) rendered s 22 of no application in any event, as the conduct in question did not relate to a failure to diagnose and treat, but a failure to refer for specialist assessment. The appellant submitted the words "in connection with" are broad, and may be contrasted with words such as "directly as a result of".

[203] The appellant's interpretation of s 22(5) fails to have proper regard for the scheme of the Act as a whole. That scheme expressly excludes failures to warn or advise from the purview of acceptable peer professional opinion. So much is so from a consideration of the terms of s 21 of the Act. Subsection (5) of s 22 simply extends that exclusion so as to ensure that anything in connection with a failure to warn or advise is not the subject of a defence pursuant to s 22 of the Act.

[204] However, the appellant's case, as pleaded, was not of a failure to warn or advise. It was clearly premised on a failure to undertake a proper examination and assessment, and to arrange an appropriate referral for specialist assessment. Viewed in this way, s 22(5) has no operation in the instant case.

[205] The trial judge did not err in finding that s 22(5) was appropriate to those cases where the breach otherwise arising flows from a failure to properly provide sufficient information to allow the patient to make an informed decision about the risk of harm but was not apt to apply in the present case.

[206] The respondent submits the trial judge erred in finding the respondent did not exercise reasonable care and skill by failing to conduct a physical examination of the appellant's neck on 18 and 19 September 2008, and by failing to make further enquiries about the appellant's ongoing headache and facial flushing. The respondent contends both these findings were against the weight of the evidence.

[207] The trial judge's conclusion that the respondent's failure to conduct a physical examination of the appellant's neck amounted to a breach of her duty was not based on an acceptance of Dr Vinen's evidence that a physical examination should always occur in respect of a patient presenting with reduced range of neck movement and ongoing headache. The trial judge specifically accepted the complaint of neck pain would not of itself necessarily call for physical examination. The trial judge found that once it was apparent the appellant had a visibly reduced range of movement on 18 September 2008 the respondent, exercising reasonable care and skill, should have physically examined her neck.[113]

[208] There was a cogent reason why a physical examination of the neck was required in the instant case. By the time of the consultations on 18 and 19 September 2008 the appellant had presented with symptoms which had deteriorated since her earlier consultation on 12 September 2008. By the consultation on 12 September 2008, the appellant had an observable, reduced range of movement in terms of head movement and posture. Dr Kable accepted that a reasonably prudent general practitioner faced with a patient re-presenting after an earlier consultation complaining of ongoing neck pain, headaches and flushing to the face would check on the progress of all three symptoms. Dr Turnbull went further, considering it was standard practice of a reasonably competent general practitioner to conduct a physical examination of the patient in such circumstances.

[209] A consideration of the evidence as a whole supported the trial judge's conclusion that the presence of a visibly reduced range of movement required a physical examination of the neck if the respondent was exercising reasonable care and skill. The trial judge did not hold the respondent to a higher standard of care than was reasonable in the circumstances.

[210] The finding that the exercise of reasonable care and skill also necessitated further enquiry as to the nature and severity of the headache was also amply supported by a consideration of the evidence as a whole. The trial judge expressly rejected the respondent's evidence that the appellant had not said anything to her on 18 September 2008 about a headache. In the context of a complaint of ongoing neck pain, including experiencing pain at the base of the head, against a background of the respondent having noted on the earlier consultation on 12 September 2008 that the neck pain was causing headache, there was a need for the respondent, exercising reasonable care and skill, to make further enquiry in relation to the nature and severity of the appellant's ongoing headaches. Dr Kable opined it was important for a general practitioner to ascertain the location, duration, intensity and frequency of ongoing headaches complained of by a patient. That information is essential to allow identification of the cause of the headaches.

[211] The respondent also placed in contention the trial judge's finding that had the respondent referred the appellant for specialist assessment or to her local hospital, on or about 19 September 2008, it is likely the appellant's condition would have been diagnosed and treatment commenced on or before 23 September 2008, with the consequence the appellant would not have suffered the catastrophic loss of her sight and hearing. The respondent contends there was no evidence upon which the trial judge could properly conclude the appellant's illness would have been diagnosed and appropriate treatment commenced on or before 23 September 2008. The respondent relies on the trial judge's finding that the appellant's symptoms at the relevant time did not require an urgent referral, or indeed referral to an emergency department, and Dr Cameron's evidence that a referral involving a delay of several days or one to two weeks would have been appropriate as at 19 September 2008.

[212] The respondent contends the fact the appellant's condition was diagnosed, and treatment commenced, within one day of her admission to the Cairns Private Hospital on 25 September 2008, cannot properly be used to support a conclusion the diagnosis and treatment would have occurred within 24 hours as the appellant's condition and symptoms were far more advanced at the time of her admission to the Cairns Private Hospital on 25 September 2008. Further, Dr Cameron gave evidence that, in the context of the underlying findings of fact, blood tests were not warranted on 19 September 2008 but were on 24 September 2008. Dr Cameron also gave evidence there was no specialist neurologist based in Cairns in 2008.

[213] Whilst Dr Miller did not undertake such steps when the appellant presented at the Cairns Base Hospital by ambulance on the evening of 24 September 2008, at the time of that presentation Dr Miller was concerned the appellant was over-drugged, and recommended referral to a pain specialist. It is likely a different response would have followed had the appellant presented with a letter of referral seeking specialist assessment for what was a deteriorating condition involving an observable, reduced range of neck movement, ongoing headache, and dizziness.

[214] The appellant's prompt attention to the referral for a CT scan on 12 September 2008 amply supported a conclusion the appellant, if given a referral on 19 September 2008, would not have wasted time in arranging and attending upon any specialist appointment. Dr Miller gave evidence that a patient who attended the Cairns Base Hospital with a referral from the general practitioner would have been seen by him, and that the hospital had the capacity to immediately carry out a lumbar puncture. A lumbar puncture would have detected and diagnosed the presence of cryptococcal meningitis within hours of its performance. Against that background, there is no basis to conclude the trial judge's findings on this aspect were not open, or not supported by the evidence.

[215] The trial judge's findings the respondent had breached her duty of care were open on the evidence. The trial judge's findings as to the likely outcome of the consultations on 18 and 19 September 2008, had the respondent not breached her duty of care, were against the weight of the evidence. Had the respondent acted in accordance with her duty of care, she ought to have referred the appellant for specialist assessment or to her local hospital for further specialist assessment. The trial judge's findings that such a referral is likely to have led to the appellant's condition being diagnosed and treatment commenced on or before 23 September 2008, with the consequence the appellant would not have suffered the catastrophic loss of her sight and hearing, were open on the evidence. There was no evidence sufficient to satisfy the respondent's onus in respect of s 22 of the Act.

2. The judgment and orders entered below be set aside.

3. Instead, judgment be entered for the appellant, in the amount of damages assessed by the trial judge, together with interest thereon.

1. The parties have leave to make submissions as to costs in accordance with Practice Direction Number 3 of 2013, para 52. If no submissions are made within seven days, the respondent pay the appellant's costs of the trial, and of this appeal, to be assessed on the standard basis.

[1] Mules v Ferguson [2014] QSC 51, [269].

[5] Above, [9]; Dr Eisen T7-37, AB 354 and ex 2, Dr Eisen's report 22 December 2009, 3, AB 705; ex 2, Dr Vinen's report of 8 February 2010, 17, AB 819.

[6] Mules v Ferguson [2014] QSC 51, [237].

[9] Mules v Ferguson [2014] QSC 51, [8].

[10] This flexion test was depicted in the DVD tendered as ex 24.

[11] Mules v Ferguson [2014] QSC 51, [12]; ex 2, Dr Whitby's report, 11 January 2011, 6, AB 734.

[12] Mules v Ferguson [2014] QSC 51, [220].

[14] Mules v Ferguson [2014] QSC 51, [239].

[22] Mules v Ferguson [2014] QSC 51, [155].

[29] Mules v Ferguson [2014] QSC 51, [239].

[38] Mules v Ferguson [2014] QSC 51 at [6]- [8] (references omitted).

[39] The appellant's recollection was that the recommendation was to continue with chiropractic treatment; the respondent's recollection was of recommending physiotherapy.

[40] Mules v Ferguson [2014] QSC 51 at [208].

[56] Active flexion is where the patient flexes his or her neck. Passive flexion is when the examining person flexes the patient's head without the active assistance of the patient.

[57] Mules v Ferguson [2014] QSC 51 at [150]- [161].

[59] These reactions were documented in textbooks appended to Dr Turnbull's report and include Brudzinski's sign.

[60] Mules v Ferguson [2014] QSC 51 at [233]- [239].

[69] Even on 24 September her temperature was normal, she did not report having experienced nausea or vomiting and she had no aversion to light.

[70] Mules v Ferguson [2014] QSC 51 at [268].

1. [79] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.
2. [80] Mules v Ferguson & Anor [2014] QSC 51 [233]; AB 2330.
3. [81] Mules v Ferguson & Anor [2014] QSC 51 [239]; AB 2331.
4. [82] Mules v Ferguson & Anor [2014] QSC 51 [246]; AB 2332 - 2333.
5. [83] Mules v Ferguson & Anor [2014] QSC 51 [247]; AB 2333.
6. [84] Mules v Ferguson & Anor [2014] QSC 51 [269]; AB 2337.
7. [85] AB 523/2.
8. [86] AB 523/15.
9. [87] AB 523/25.
10. [88] AB 2331 [239].
11. [89] AB 535/15.
12. [90] AB 538/15.

[92] Mules v Ferguson & Anor [2014] QSC 51 [234]; AB 2330.

[94] The chiropractor had recorded pain when moving the back of the head forward on 5 September 2008.

[97] AB 987; see also Dr Eisen at AB 354.

1. [104] Mules v Ferguson & Anor [2014] QSC 51 [112]; AB 2305.
2. [105] Mules v Ferguson & Anor [2014] QSC 51 [110]; AB 2305.
3. [106] See generally, Hunter and New England Local Health District v McKenna (2013) Aust Torts Reports 82-158; [2013] NSWCA 476; an appeal to the High Court [2014] HCA 44 [12], expressly did not consider this aspect of the judgment.

[113] Mules v Ferguson & Anor [2014] QSC 51 [232]; AB 2330.